The Scientific Basis of Child Custody Decisions
The Scientific Basis of Child Custody Decisions Second Edition
Edited by
Robert M. Galatzer-Levy Louis Kraus Jeanne Galatzer-Levy
John Wiley & Sons, Inc.
1 This book is printed on acid-free paper. Copyright # 2009 by John Wiley & Sons, Inc. All rights reserved. Published by John Wiley & Sons, Inc., Hoboken, New Jersey. Published simultaneously in Canada. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, fax (978) 646-8600, or on the web at www.copyright.com. Requests to the Publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, (201) 748-6011, fax (201) 748-6008, or online at http://www.wiley.com/go/permissions. Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering professional services. If legal, accounting, medical, psychological or any other expert assistance is required, the services of a competent professional person should be sought. Designations used by companies to distinguish their products are often claimed as trademarks. In all instances where John Wiley & Sons, Inc. is aware of a claim, the product names appear in initial capital or all capital letters. Readers, however, should contact the appropriate companies for more complete information regarding trademarks and registration. For general information on our other products and services please contact our Customer Care Department within the United States at (800) 762-2974, outside the United States at (317) 572-3993 or fax (317) 572-4002. Wiley also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. For more information about Wiley products, visit our web site at www.wiley.com. Library of Congress Cataloging-in-Publication Data: The scientific basis of child custody decisions/edited by Robert M. Galatzer-Levy and Louis Kraus. – 2nd ed. p. cm. Includes bibliographical references and index. ISBN 978-0-470-03858-1 (cloth) 1. Custody of children–United States. 2. Forensic psychiatry–United States. 3. Forensic psychology–United States. 4. Social work with children. 5. Child psychiatry. 6. Child psychology. I. Galatzer–Levy, Robert M., 1944- II. Kraus, Louis. KF547. A75S38 2009 346.7301073–dc22 200900835 Printed in the United States of America. 10 9 8 7 6 5 4 3 2 1
Contents Preface
vii
Preface to the Second Edition
xi
Introduction Robert M. Galatzer-Levy
xiii
References
xxiv
Contributors
xxvii
1
From Empirical Findings to Custody Evaluations Robert M. Galatzer-Levy, Jonathan Gould, and David Martindale
2
Legal and Ethical Issues in Child Custody Evaluations David A. Martindale and Norman M. Sheresky
3
Observations of Parents, Caretakers, and Children for Child Custody Assessment Anita Lampl
1
49
71
4
Use of Psychological Tests in Child Custody Evaluations Jonathan Gould, David A. Martindale, and James R. Flens
5
An Updated Review of the Effects of System and Estimator Variables on Child Witness Accuracy in Custody Cases 125 Bradley D. McAuliff, Margaret Bull Kovera, and Livia L. Gilstrap
6
The Importance of Attachment in Custody Evaluations: Toward the Best Interest of the Child Louis Kraus and Kayla Pope
7
Improving the Quality of Parent-Child Contact in Separating Families with Infants and Young Children: Empirical Research Foundations Michael E. Lamb and Joan B. Kelly
85
165
187
v
vi CONTENTS
8
Divorce, Custody, and Visitation in Middle Childhood Louis Kraus, Robin Shapiro, and Robert M. Galatzer-Levy
215
9
Custody Evaluations of Adolescents Sarghi Sharma and Christopher Thomas
241
10
Adopted Children and Custody Arrangements Susan M. Fisher
253
11
Medically Ill Children and Adolescents Brenda Bursch
263
12
Parental Sexual Orientation, Social Science Research, and Child Custody Decisions Charlotte J. Patterson
285
Child Custody Evaluations of Parents with Major Psychiatric Disorders Michael J. Jenuwine and Bertram J. Cohler
307
13
14
Child Adjustment and High-Conflict Divorce Robin M. Deutsch and Marsha Kline Pruett
15
Evaluating Child Sexual Abuse Allegations Kathryn Kuehnle and Mary Connell
375
Rejection in Cases of Abuse or Alienation in Divorcing Families Leslie M. Drozd
403
Joint Custody: A Judicious Choice for Families—But How, When, and Why? Marsha Kline Pruett and Carrie Barker
417
16
17
18
Conclusions and Prospects Robert M. Galatzer-Levy
353
463
Author Index
469
Subject Index
487
Preface
T
born in a courtroom, but it is meant for a larger world. While listening to a particularly dreadful piece of expert testimony— that the ‘‘primary intrauterine bond of mother and infant’’ entailed that a 4-year-old should be returned to the care of her intermittently psychotic, substance addicted, and abusive biological mother with whom she had almost no relationship—it occurred to one of us that although he wished otherwise, none of the players in this drama, expert, lawyers, or judge, had a solid base from which to consider the testimony. As clinicians and expert witnesses over the years, we have seen how difficult it is for both legal and mental health professionals to address the ‘‘best interests of the child.’’ Lawyers and judges are often ignorant of basic psychological concepts, or worse, have latched onto a few ideas with which they were personally sympathetic. This creates situations in which the trial process functions poorly. Lawyers’ lack of clarity about the testimony makes for muddled direct and crossexaminations. Judges have difficulty understanding and evaluating the testimony. Divorcing families usually have limited resources, putting expert witnesses’ and lawyers’ time at a premium so that custody decisions are made without full benefit of the information available about children’s best interests. Some judges and jurisdictions try to solve this problem by relying heavily on experts and agencies trusted by the court, including court-sponsored social service agencies. Difficulties arise in these situations because the opinions of these mental health professionals may be subject to little effective review and yet determinative of cases’ outcome. Unfortunate situations can result when inadequately trained mental health professionals or individuals with idiosyncratic viewpoints essentially assume the judge’s role in all but the most vigorously litigated cases. Mental health professionals involved in custody determinations have often not thought through the difference between evaluations done in a forensic context and those appropriate for clinical work. Often mental health professionals are ill-prepared to contribute to the legal process. Accustomed to treating mentally ill or distressed people, they commonly collect and HIS BOOK WAS
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viii PREFACE
formulate information in a way that is appropriate for that purpose, information that is often quite different from that required in forensic work. For example, although no rational person would try to mislead someone from whom he or she sought treatment, parties to a forensic evaluation can quite reasonably wish to do so. The level of confidence with which a treater makes recommendations need reach a conviction only that the recommendation is the best choice available. Even that recommendation is subject to correction and reevaluation in the light of its effects as observed during the course of treatment. In contrast, expert opinions are expected to be highly reliable and defensible against close examination and do not carry with them the expectation that they can be corrected as a result of subsequent experience with the client. The questions that treaters address are typically different from those raised in a forensic context. In most instances, the primary question when treating a patient is what form of therapeutic intervention is most likely to aid him or her. This is a different type of question from those raised in custody evaluations, which concern the impact of various living arrangements on the child within the context of the governing law. The mental health professional who does not maintain a serious interest in these issues is unlikely to have kept up with the explosion in research concerning parenting, divorce, and children’s developmental needs. The end result of all these factors is that the vast amount of information gathered through research in child development has less impact on custody and visitation decisions than it should. In that courtroom many years ago it became clear that all those concerned, especially the child whose fate was being litigated, would benefit from a reliable reference that could clarify thinking about the psychological issues in the case. Such a book would have to be accessible, if at times with a little work, to both legal and mental health professionals. It would need to not only reflect the best current thinking on topics affecting custody and visitation, but also provide information about the credibility of those current views. It would need to focus on the issues that courts address, and although it could not possibly speak to every situation that might arise, it should at least discuss some of the common, particularly troublesome situations confronted in custody decisions. Finally, it should be a book about what mental health professionals and knowledge of behavioral science can contribute to the decisions, with legal issues examined insofar as they impact those contributions. We intend this book to be of use not only in situations involving litigation but also in the much more common situation where families are able to decide on custody and visitation arrangements for themselves. Families and their advisors should be guided by what is known about the impact of arrangements on children. The material presented here is applicable to any child involved in divorce.
Preface ix
As will quickly become apparent by perusing this volume, a surprisingly wide range of information is needed to address these questions. As editors we tried to locate leading authorities to address these issues. We soon discovered that some topics were far better investigated than others and that the extent to which topics were investigated did not necessarily relate to their significance to custody decisions. At this point, for example, a great deal is known about how parents facilitate the growth of infants and young children, but little is known directly about the details of effects of visitation schedules on children’s psychological well-being in middle childhood. We have tried to ensure not only that this book includes the best available knowledge on a range of topics pertinent to custody decisions in divorce but that the reader is able to access how reliable that knowledge is. The chapters’ authors have been generous in not only writing original work but in responding to our suggestions and queries designed to address these issues. For a variety of reasons we were unable to address certain issues that commonly arise in custody disputes in the depth we would have liked. In some important areas, such as the impact of personality disorders (chronic maladaptive patterns of living) on child rearing, there was a surprising paucity of data. In some other areas we simply could not locate an authority of adequate stature to address the issue. We hope to be able to rectify the latter limitation in later editions of this work. Completing a work such as this naturally reminds one of the many debts owed not only to those who supported the effort directly but also to those who originally stimulated our interests and supported our efforts to think about these issues. Our teachers Bennett Leventhal, Alan Ravitz, and the late Ner Litner showed us that mental health professionals could benefit children outside the consulting room through informed participation in the legal process. Members of the Core Group of the Behavioral Science and Law Forum, including Leslie Star, Sandra Nye, Forest Bayard, Randy Franklin, Frank Lani, Joy Feinberg, Richard Cozzola, Edward Wolpert, Jonathan Nye, Alan Ravitz, and Eric Ostrov, have provided an exceptional forum to stimulate our thinking. Through their sometimes challenging questions, lawyers too numerous to mention have brought many of the issues addressed in this book into sharp, even occasionally uncomfortably sharp, focus. Jeanne Galatzer-Levy has provided editorial support and more throughout this book’s creation. Robert M. Galatzer-Levy, MS, MD Chicago Illinois Louis Kraus, MD Evanston, Illinois September 15, 1998
Preface to the Second Edition
T
the publication of the first edition of this book has witnessed a sea change in custody evaluations and decisions. Several factors—legal, professional, and social—have converged, resulting in a move toward more rational and empirically based arrangements for children of divorce. Generally higher standards for expert testimony followed in the wake of the Daubert decision. Although various forms of ‘‘junk science’’ are still far too common in the legal system, especially in areas involving psychology, legal professionals are ever more demanding that the credibility of technical and scientific expertise stand up to careful scrutiny. The time when experts could safely opine on all sorts of matters based on clinical experience or undemonstrated theories is, thankfully, rapidly fading. Matrimonial law is increasingly recognized as a significant branch of law, and professional organizations for matrimonial lawyers have become increasingly sophisticated. Courts and judges have become increasingly specialized and appreciative that different sorts of divorce cases may require distinct legal and administrative processes. Ever since the founding of the juvenile court in Chicago at the beginning of the twentieth century legal and mental health professionals have recognized that a system designed to deal primarily with property and crime was a blunt instrument with which to deal with the complex subtleties of human relationships. However, attempts to model courts on social service agencies risked depriving people of the protections of due process in matters of the greatest importance to them, such as custody of their children. Legal professionals have become increasingly skillful at differentiating cases that are best approached through various forms of alternative dispute resolution from those that require the rigor of fledged legal proceedings. Together these changes have resulted in higher expectations from the courts regarding the credibility and relevance of expert opinions. This same period has witnessed the increased professionalization of the forensic mental health professions. Until recently almost all mental health experts had primarily clinical training and learned about forensic issues either through independent study or periods of work in forensic settings. HE DECADE SINCE
xi
xii PREFACE
TO THE
SECOND EDITION
Now there are a variety of systematic training programs preparing mental health professionals for forensic roles. Texts on forensic psychology and psychiatry have rather rapidly shifted from compendiums of personal opinions and observations to critical reviews of empirical knowledge and relevant law. Especially in the area of child custody journals in the field such as Family Court Review and the recently founded Journal of Child Custody have resulted in the emergence of high-quality research literature about custody issues. The changing nature of marriage and parenting in our society has also contributed to increased sophistication in custody decisions. The twentieth century opened with the sure knowledge that children were their father’s possessions. For decades after the Second World War the assumption that women are caretakers dominated custody decisions. The vastly increasing divorced population and shifting gender roles meant not only that these roles changed but that the roles consistent with gender were much more diverse than they had been. Large segments of society demanded that courts operate without stereotyping assumptions. Joint custody and extensive visitation arrangements became the norm as both fathers and mothers expected to remain involved with their children after the divorce. Courts continue to struggle with the recognition that families may have very different configurations than the so-called nuclear family and that these arrangements may be of great value to children. Society’s increasingly sophisticated vision of the possibilities for relationships has forced the courts and mental health professionals to form more sophisticated and diverse views of custody arrangements that benefit children. We think that the combination of these forces is moving the field in the direction we very much wanted to see it go when we first conceptualized this book. We are now in the happy position of being able to present a stronger foundation for child custody decisions than we could have a decade ago, as we think the Introduction will show. We hope that our book made some contribution to the trend we are describing and that this new edition will continue that contribution. Robert M. Galatzer-Levy, MS, MD Louis Kraus, MD Jeanne Galatzer-Levy, MS July 9, 2008
Introduction ROBERT M. GALATZER-LEVY
D
numbers of children. In the United States more than a million children’s parents divorce each year. An estimated 40% to 50% of American children before age 18 experience their parents’ divorce (Glick, 1988, 1990). Although experts disagree about the effects of divorce on children, research supports common sense that for many children their parents’ divorce presents a serious challenge. Today nearly everyone agrees that, within the limits imposed by the decision to divorce and the resources available to the family, arrangements should be made that are in the child’s best interest. The problem is to determine what those best interests are both generally and for particular children. Some of these decisions involve values, convictions about what constitutes a good life and the aims of child rearing. These questions can be addressed only through ethical analysis and public opinion as reflected in legislation and judicial decisions. In many areas consensus on these matters is easily reached. For example, few would argue that irrational anxiety or development in the direction of criminality are good for children. In other areas consensus is less clear because of the diversity of views in our society; for example, some people believe that it is of great importance that children be raised with a strong religious sensibility, whereas others count this of little importance or even regard it as undesirable. Although many values about children’s development are so widely shared that they do not need to be spelled out, it is still important to recognize that discussions of children’s interests are implicitly embedded in a context of values and that some questions about children’s best interests can be addressed only from within that context. However, another group of questions are matters of fact. They concern how particular arrangements are likely to affect children: whether, for example, a child of a given age and background will be able to maintain a close relationship to a parent under a particular visitation schedule. These instrumental questions are subject to empirical investigation. Rarely, though increasingly frequently, researchers have explored the question directly, but IVORCE IMPACTS VAST
xiii
xiv INTRODUCTION
very often a body of empirical information is available about children’s development that allows strong inferences about the likely impact of an arrangement on a child. For example, it might be proposed that a 1-year-old child spend alternating weeks in the care of each parent. It is unlikely that an experiment with precisely these parameters would be performed, but extensive research on children’s capacities to maintain relationships with caregivers and the effects on development of failing to do so strongly suggests that this would be a very undesirable arrangement in terms of the child’s psychological health. Our hope is that reliable information about children’s needs and development can increasingly be brought to bear on decisions about living arrangements for children of divorce. This book is intended to serve the needs of legal and mental health professionals involved in custody decisions about children of divorce. We believe that these decisions should be informed by the best available knowledge regarding their likely impact on children. Although several recent volumes have addressed the performance of custody evaluations and providing expert testimony about them (Ackerman, 2006; Ackerman & Kane, 2005; Bricklin, Elliot, & Halbert, 1995; Gardner, 1989; Gould, 2006; Mart, 2007; Rohrbaugh, 2007; Schutz, Dixon, & Lindenberger, 1989; Stahl, 1994, 1999; Woody, 2000) and there are many scholarly works about child development generally, we could not find a single volume in which readers could locate authoritative statements about the basis on which custody decisions can be made that included discussions of the reliability of those statements. When a couple separates or divorces, decisions must be made about the children’s custody and visitation. Because society recognizes its interest in these arrangements, the family immediately becomes involved with the legal system, yet most of these decisions are made by the divorcing couple with no input from professionals of any kind. Other couples seek the counsel of mental health professionals, pediatricians, attorneys, and clergy to come to an agreeable arrangement. In approximately 10% of divorces involving children, parents are unable to agree about custody and visitation arrangements and litigation is initiated. The resulting process of discovery, mandated mediation, and evaluation has been estimated to result in agreed resolution of approximately 90% of these disputes. Overall, it has thus been estimated that only 1% of custody decisions are the result of trials. However, this figure is misleading with regard to the impact of the courts on custody arrangements. The pattern of actual decisions reached by the courts and legislatures on custody matters has a profound effect on the agreements that parents reach between themselves. For many years the ‘‘tender years doctrine’’ was widely applied by courts. It involved the presumption that young children were best cared for by their mother. As this doctrine lost sway, largely through legislation, fathers who previously believed it highly unlikely that they could
Introduction xv
gain custody of their children increasingly sought custody or a major role in their young children’s lives. Thus, in addition to affecting custody arrangements that actually go to trial, judicial decisions have a far-reaching impact on the lives of many children of divorce. The ever present potential for litigation inevitably affects all actors in custody decisions so that the shadow of these cases is much longer than the numbers suggest. The process by which custody decisions are reached is unusual in that the individual most affected by the decision, the child, is rarely a party to the litigation. Additionally custody and visitation arrangements are most often made as part of an overall divorce settlement so that, especially when the parties settle between themselves, considerations other than the child’s best interests are likely to play an important role in the actual decision. For example, additional time with the child may be traded for increased financial support. Mental health professionals who hope to contribute to custody arrangements must keep in mind both the intrinsic complexity of the issues involved and the context in which the contribution is made. Because these decisions often require specific information about issues peculiar to divorce and because they require the integration of multiple viewpoints more is needed than the application of general child developmental and parenting principles. The divorcing family has distinct qualities and its members are subject to forces that may not have been considered in investigations of broader developmental issues. In addition to the particular problems associated with divorce, mental health professionals need to formulate and defend their views in a different fashion from that ordinarily used in other aspects of their professional lives. The expert’s job is to provide accurate information, and the function of the legal process is to assess the accuracy of that information. Recognizing this affects every aspect of the mental health professional’s work. Whereas in a therapeutic context it is in the best interest of interviewees to provide information that is as accurate as possible, in a forensic context interviewees often have good reason to give inaccurate information. In a clinical setting treaters properly provide information in such a way as to encourage the best clinical outcome; in a legal setting it is wrong to shape information to achieve a desirable goal. In a clinical setting the credibility of a treater’s knowledge is rarely vigorously questioned; mental health professionals engaged in forensic work should anticipate that their credibility will be carefully examined. Generally, mental health professionals need to be aware of the different world they enter when they become involved in forensic matters and to develop professional expertise in dealing with that world (Brodsky, 1991; Gutheil, 1998; Melton, Petrila, Poythress, & Slobogin, 2007). Mental health professionals commonly misunderstand the court’s activities, believing that the judge’s assignment is to do what is in a general sense
xvi INTRODUCTION
best for the child. They often believe that the lawyers should also be working directly toward that end. Although hopefully overlapping with doing what is best for the child, the judge’s assignment remains, as it is in all matters, to apply the law to the particular case at hand. The attorney’s responsibility is to vigorously represent the client’s interest within the limits of the law. Through this adversarial process of litigation the intention is to reach a decision based in law. Developed largely to resolve disputes about property and criminal behavior, trials, even trials conducted with special rules based on the difficulty of custody decisions, often appear to be poor tools for society to ensure children’s welfare. Indeed, actual trials occur only when other, less rigid mechanisms for solving the problem have failed. When mental health professionals understand the legal process and appreciate the enormous difficulty of the court’s work, they can participate in it more effectively. In this context the judge gathers information pertinent to the issues before the court. It is here, as an expert witness, that the mental health professional’s input often enters into child custody decisions. The role of expert witness is well defined and limited (Lubet, 1999). Mental health professionals commonly misunderstand their own roles and are tempted to go beyond that role. Most mental health professionals, primarily trained as treaters of psychological illness and accustomed to having their opinions taken as authoritative, need to retool to function well as experts for the courts. In particular this means understanding that what they have to contribute is information about their particular expertise.1 Mental health professionals need both to understand what the role requested of them is and to decide whether they can fill that role with professional integrity. Similarly, lawyers and judges need to understand and appreciate these limitations. Just as the appropriate role of legal professionals may be difficult for nonlawyers to understand, it is important for legal professionals to appreciate that mental health professionals, if they are to function well, must be careful to remain within their appropriate roles even when common sense might suggest that they could extend their activities further. For example, although much is made of legal professionals’ denigration of mental health professionals, mental health professionals are commonly pressed to give an opinion on issues that they cannot adequately address. Judges and lawyers frequently seek predictions from mental health professionals about the consequences of a particular course of action: Will a visitation schedule provide sufficient contact to maintain a relationship with a noncustodial parent? Will the child be better adjusted as a result of being in the custody of one parent rather than the other? Does the fact that a parent assaulted a spouse mean that parent will assault a child? In almost all instances mental health professionals whose opinions are based on reliable knowledge can answer such questions only with
Introduction xvii
statements about the likelihood of some event occurring, and even then the details of that likelihood may be imprecise. Experts can provide the court with the best information available, but often this best information is limited. Recognizing that ultimately a decision must be reached, it is sometimes difficult for experts, lawyers, and judges to exercise the restraint needed to preserve the expert’s useful function to the court, which is solely the provision of accurate information. The quality of information provided by experts in custody disputes has been particularly open to question. In their widely acclaimed text on psychological evaluations for the courts, Melton and colleagues (2007, p. 540). referred to the validity of expert opinions in these matters: ‘‘There is probably no forensic question on which overreaching by mental health professionals has been so common and so egregious.’’ Among other concerns, they and others observe that the scientific basis of many custody evaluations is questionable (see also Grisso, 1990; Heilbrun, 1995). Part of the difficulty arises because of the wide variation in training of custody evaluators and the variety of methods they employ to come to their recommendations (Ackerman & Ackerman, 2006; Keilin & Bloom, 1986; LaFortune & Carpenter, 1998). An even more serious concern is that the scientific database on which many recommendations are made appears weak. In many contexts courts have increasingly demanded that expert testimony live up to some reasonable standards. Confronted with ever increasing amounts of ‘‘junk science’’ and studies of very dubious merit generated for the purpose of litigation (Huber, 1993), courts have tried to better address issues of how information provided by experts is to be assessed. In the Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) decision and a series of decisions that followed it, the U.S. Supreme Court initiated a process designed to improve expert testimony. In particular the court clearly aimed to reserve the term ‘‘scientific’’ for information that would widely be regarded as meeting the high standards commonly associated with that term (see Martindale & Sheresky, Chapter 2). The criteria suggested by the courts will strike many trained in scientific methodology as somewhat problematic, but their spirit will be welcomed by those who hope that science can inform judicial process. Perhaps as important as the ruling’s details is the indication that courts will increasingly try to assess the scientific merit of testimony presented. Experts of all types are clearly expected to meet improved standards for the opinions they provide. The core of a scientific attitude was first formulated by Francis Bacon in 1620. Science is characterized by its continuing and open assessment of the validity of its own facts and theories. Unlike arguments from authority, whose validity is claimed because of the status of the person putting forward a position, scientific arguments are assessed by the credibility of claimed
xviii INTRODUCTION
observations and the quality of the logic that connects conclusions to observations. Insofar as the theory of relativity is regard as true by physicists, for example, it is because observations and logical deductions based on them support the theory, not because it was created by the greatest physicist of the age. Thus, the unique quality of scientific statements is that they are always accompanied by an explicit or implicit assessment of their own credibility. It is in this sense that we use the term ‘‘scientific’’ in reference to the material presented in this volume. We include as scientific not only material that is accompanied by the apparatus of quantitative investigation but also research using other methods, provided the consequences and limitations of those methods are clear. We have tried to make it clear to readers what the best current thinking from the behavioral sciences is with regard to issues involving custody in divorce and also to invite the reader to have a picture of how credible these statements are, that is, to understand the evidence that lies behind them. We believe that such information can allow courts (and others) to weigh information from mental health experts with increased accuracy. Unfortunately it is not rare for evidence that lacks reasonable scientific backing to be presented to the courts as though it did have scientific merit. Occasionally corrupt individuals may act as hired guns testifying in favor of those who retain them for a price; however, we believe a much more common and pernicious problem is the uncorrupt but inaccurate expert who presents pet theories and personal prejudices as scientific fact. It should come as no surprise that in the emotionally charged arena of child custody decisions some credentialed individuals, because of inadequate training or personal needs, testify in a manner that is inconsistent with reasonable standards for scientific information. We hope this book will assist both legal and mental health professionals in raising the quality of expert testimony and weeding out testimony that goes beyond the expert’s credible knowledge. We begin the book with a discussion of general issues important in custody evaluations. The first chapter addresses conceptualizing the scientifically based custody evaluation. Robert M. Galatzer-Levy, Jonathan Gould, and David Martindale describe how information from the behavioral sciences can usefully be brought to bear on custody issues by assessing its credibility and relevance to the case at hand. They point to the strengths and weaknesses of this kind of information and the tools available for assessing scientific information provided in custody decisions. The way psychological understanding enters into testimony is dictated both by the law and by professional ethics. In the second chapter, psychologist David A. Martindale and attorney Norman M. Sheresky describe the rules governing experts’ activities, their limitations, and their impact on custody evaluations.
Introduction xix
What information is collected in making a child custody evaluation and how the information is used are central elements of the evaluation. Three chapters directly address these issues. Because the interactions of parents and children are the means by which parenting occurs and because selfreports by either parents or children of these interactions are notoriously vague or inaccurate, many custody evaluators long ago recognized that observing parents and children together is an important part of an evaluation. But until recently the sheer complexity of such interactions and the difficulty of systematically gathering information from them has meant that these observations provided questionable information. Anita Lampl addresses these issues in Chapter 3, showing how these centrally important observations can become a more valuable part of child custody evaluations. In contrast, the methodology of psychological testing has long been well developed, but its relevance to child custody evaluations has been more doubtful. Starting at the beginning of the twentieth century psychologists developed a vast collection of tools designed to systematically, reliably, and validly assess almost every aspect of psychological function (Groth-Marnat, 1997). Although many of these tests are fine tools for their intended purposes, extending their application beyond those purposes is often problematic because the relevance of their results to questions for which they were not designed is, at best, in need of clarification. At the same time, given the complexity of the issues relevant to custody and visitation, good measures of significant qualities of the parent-child relationship would be of great value. In their chapter on psychological testing Jonathan Gould, David A. Martindale, and James R. Flens outline the fundamental ideas of psychological testing, the issues involved in using tests not originally designed for custody assessment in these evaluations, and the available tests that are specific to this purpose. A very different source of information is the child’s own statements, especially when the child is called on to testify. How reliable are the child’s statements? How much are those statements influenced by the various pressures the child is under? Are there ways to facilitate the child’s providing the most accurate information possible? In a chapter on the child as witness, Bradley D. McAuliff, Margaret Bull Kovera, and Livia L. Gilstrap explore these controversial issues with an eye to the question of helping the child provide useful information. Discussions of custody arrangements usually involve theories about the relationship of children’s well-being to their interactions with caretakers. Usually these theories either remain implicit or enter the discussions as authoritative, unquestioned statements. For these discussions to be rational we need to be explicit about these theories and their credibility. Attachment theory, which originated in a combination of observational studies and psychoanalytic conceptualization, is emerging as among the most theoretically
xx INTRODUCTION
clear and empirically based means of thinking about the relationship of children and caretakers, as well as the impact of these relationships on development. In their chapter on attachment theory, Louis Kraus and Kayla Pope describe the major findings of attachment research and apply them to issues of custody and visitation. We devote three chapters to an overview of child development as it relates to custody and visitation. For these chapters the authors have not attempted exhaustive reviews of the literature on development, an undertaking that would require dozens of volumes the size of this one to encompass the massive findings of recent decades. Instead, we provide an overview, an entree into the literature, a discussion of how developmental concepts apply to custody and divorce, and an examination of particularly controversial issues during various developmental stages. At one time it was assumed that infants need to reside with their mother. Developmental theory, along with increased societal appreciation that it is the functions provided by the mother, not her person, that the child needs, directed that issues of custody and visitation be reframed in terms of the child’s psychological needs. Michael E. Lamb and Joan B. Kelly describe what contemporary developmental research tells us about these needs, how they are manifest in divorce situations, and what is understood about the impact of various arrangements on the infant and young child. Continuing in the same vein Louis Kraus, Robin Shapiro, and Robert M. Galatzer-Levy examine several lines of development during middle childhood, each of which must be traversed during this period. They describe how custody and visitation arrangements may facilitate or impede these developments and comment on the paucity of studies directly addressing these issues. Often adolescents are believed to be sufficiently mature to decide for themselves where they will live, and courts sometimes simply defer to their preferences. Yet often, despite physical appearance and a wish to be mature enough to make such decisions, adolescents lack the capacity to judge what is in their own best interest, especially in the emotionally charged context of divorce. In a chapter that describes adolescent development, emphasizing the mythical nature of some common assumptions about adolescents, Sarghi Sharma and Christopher Thomas describe the developmental needs of these young people, means for assessing their situation, and information about custody and visitation arrangements that facilitate their development. Many custody arrangements must take into consideration special needs of particular children or potentially problematic aspects of parental function. Some empirical investigations have shown that matters regarded as problematic with regard to custody turn out to be nonissues. The third section of this book is devoted to several issues that are or have been thought to be relevant to child custody. One configuration that changes the impact of divorce on
Introduction xxi
children is adoption. Consideration of the adopted child’s special vulnerability in relation to loss and separation leads Susan M. Fisher to assert that in making custody and visitation arrangements involving adopted children, special care should be taken to maintain the child’s sense of security. Another group of children for whom custody arrangements can be particularly challenging are youngsters with significant medical problems. Parents’ realistic and imagined worries about the other parent’s ability to care for the child, the psychological needs of ill children, and the rare but important problems of factitious illness all complicate custody decisions. In her chapter on the medically ill child Brenda Bursch explores these important problems. In custody disputes various aspects of parental personality are commonly discussed, often without clear reference to their significance to the parent’s ability to rear a child. When the parent has qualities that may be problematic or simply socially frowned on, these qualities are often treated as though they were significant to custody decisions. Two groups who are often presumed to be less adequate parents are people suffering from severe psychiatric disturbances and gay and lesbian parents. The first step in addressing custody issues involving such parents is to clearly focus on the impact of their condition on parenting. Michael J. Jenuwine and Bertram J. Cohler show that equating severe psychiatric disorder with impaired parenting is wrong. They demonstrate that different disorders affect parenting in different ways and that the presence of a severe psychiatric diagnosis in itself should not determine a child’s custody. They also explore how parents whose illnesses do interfere with parenting may be involved with their children in a way that is most useful to the child. Despite nearly universal recognition by mental health professionals that homosexuality is not associated with psychopathology, sexual orientation remains controversial in our country to an extent that people with one attitude toward it commonly find a different attitude incomprehensible. It is precisely in such an emotionally charged context that empirical data may be most useful in helping reach rational decisions about the best interest of children of gay and lesbian parents. In her chapter on gay and lesbian parents, Charlotte Patterson carefully reviews the available literature on the impact of parental sexual orientation on children to provide a clear picture of whether this factor should weigh in custody decisions. Although most custody decisions are reached in a civil manner a small number of cases devolve into virtual wars between parents, with allegations and counterallegations of heinous behavior. High-conflict divorces can absorb the lives of parents and children for years, with devastating consequences for all involved. Often legal interventions designed to resolve the conflict seem only to intensify it. Effective means to end the Armageddon of these
xxii INTRODUCTION
divorces require an understanding of their underlying dynamics. Highconflict cases take up vast amounts of energy in the courts, and it is difficult for the courts not to become the instrument of, rather than the solution to, the problem of embattled parents who pull their children into the custody battle. Because they consume so many resources and because they so damage children high-conflict divorces and means of intervening in them have become the subject of substantial research in the past two decades. In their chapter Robin M. Deutsch and Marsha Kline Pruett provide a clear picture of this research and its application. When sexual abuse is alleged during custody disputes the professionals involved are often confronted by an enormous problem. Failure to protect the child from abuse is clearly unacceptable, but taking legal steps when the allegations are false, especially when allegations are created for purposes of litigation, is likely to also be seriously damaging to the child. Matters are made even more troublesome because of the intense debate that accompanies a swinging pendulum of attitudes toward alleged sexual abuse of children. In their chapter on such allegations Kathryn Kuehnle and Mary Connell describe what empirical research has to tell us about these allegations and their assessment. About 20 years ago it was recognized that some allegations of sexual and other abuse arose from a psychological configuration in which some children had come to hate everything associated with one of their parents. Some of these alienated children had clearly been indoctrinated against the parent and made false allegations as part of the attack on that parent. The charge of alienation was used as a defense against allegations of abuse to such an extent that Richard Gardner (1987) claimed to be able to differentiate true and fabricated allegations of abuse based on the presence of a syndrome he named ‘‘Parental Alienation Syndrome.’’ This not only provided a defense against abuse charges but shifted the burden to the parent with whom the child was aligned to show that the child had not been indoctrinated, which is a form of abuse. The recognition that Gardner’s approach is not valid still left the puzzling problem of why some children become alienated from parents and what significance should be given to this alienation in making custody recommendation. Leslie M. Drozd explores this important question, which comes up frequently in high-conflict divorces. An ideal solution to the custody problem would be for children to continue to benefit fully from both parents and for parents to feel fairly treated in that time and relationship with the child are equally shared. The wide range of arrangements referred to as ‘‘joint custody’’ are intended to approximate this ideal. However, such arrangements are not panaceas. When parents cannot cooperate or, worse, repeatedly enter into conflicts involving the child, joint custody can introduce great difficulties into the child’s life.
Introduction xxiii
When attempts to be fair to the parents take precedence over the child’s needs, like the infant in the Solomon legend the child may be sacrificed to achieve equity for the parents. For these reasons it is important to differentiate those situations in which joint custody is likely to provide well for the child from those in which the child is likely to be hurt by it. Drawing on a wide range of studies for their chapter Marsha Kline Pruett and Carrie Barker provide a clear description of what empirical research tells us about situations where joint custody works and where it fails. Our book lacks some chapters we wish we could have included. Many observers believe that a parent’s chronic maladaptive psychological function, often referred to as a personality disorder, has particularly important effects on child development. We would have liked to address this question but found that it has been only scantly studied using empirical methods. A much more extensive literature addresses the impact of parental substance abuse on children, but we failed to find an appropriate contributor to review this literature. Another area we would have liked to explore is the impact of the community in providing support for children’s development (Bryant, 1985) because one of the common effects of divorce and some custody arrangements is to disrupt the support that children receive from the community in which they live. We hope to remedy these limitations in a later edition. This book is intended to help legal and mental health professionals come to the best possible decisions in accessing children’s best interests. We believe that the ever growing empirical knowledge of child development and the impact of various arrangements on children can greatly improve these assessments. It is in the nature of scientific investigation that findings will change as more work is done and criticism refines existing information. We hope that this book will move that process forward.
NOTE 1. Mental health professionals are also called on by courts to serve many other roles in custody matters. They may be asked to treat or educate the children, the parents, or the family as a whole. They may serve as mediators. In some jurisdictions they may even make decisions regarding custody and visitation under judicial supervision. Sometimes the position of the court’s supportive services is so significant that a mental health professional’s opinions are almost always adopted by the courts. The wish to have mental health professionals perform in these many roles often leads to confusion on the part of both the court and the mental health professional. We agree with Strasburg and Gutheil’s (1997) view that attempts to wear more than one hat, for example to serve as both therapist and expert, result only in both roles being filled badly.
References Ackerman, M. (2006). Clinician’s guide to child custody evaluations (3rd ed.). New York: Wiley. Ackerman, M., & Ackerman, M. (1997). Custody evaluations practices: A survey of experienced professionals (revisited). Professional Psychology: Research and Practice, 28, 137–145. Ackerman, M., & Ackerman, M. (2006). Custody evaluations practices: A survey of experienced professionals (revisited). Professional Psychology: Research and Practice, 28, 137–145. Ackerman, M., & Kane, A. (2005). Psychological experts in divorce actions (4th ed.). New York: Aspen. Bacon, F. (1620). Novum organum. T. Fowler, Ed., (2nd ed). Oxford: Oxford University Press., 1889. Bricklin, B., Elliot, G., & Halbert, M. (1995). The custody evaluation handbook: Research based solutions and applications. New York: Brunner/Mazel. Brodsky, S. (1991). Testifying in court: Guidelines and maxims for the expert witness. Washington, DC: American Psychological Association. Bryant, B. (1985). The neighborhood walk: Sources of support in middle childhood. Monographs of the Society for Research in Child Development, 50(3). Gardner, R. (1987). Parental alienation syndrome and the differentiation between fabricated and genuine child sex abuse allegations. Cresskill, NJ: Creative Therapeutics. Gardner, R. (1989). Family evaluation in child custody mediation, arbitration, and litigation (Rev. ed.). Cresskill, NJ: Creative Therapeutics. Gould, J. (2006). Conducting scientifically crafted child custody evaluations. Sarasota, FL: Professional Resource Press. Grisso, T. (1990). Evolving guidelines for divorce/custody evaluations. Family and Conciliation Courts Review, 28, 35–41. Groth-Marnat, G. (1997). Handbook of psychological assessment. New York: Wiley. Gutheil, T. (1998). The psychiatrist as expert witness. Washington, DC: American Psychiatric Press. Heilbrun, K. (1995). Child custody evaluation: Critically assessing mental health experts and psychological tests. Family Law Quarterly, 29, 63–78. Huber, P. (1993). Galileo’s revenge. New York: Basic Books. Keilin, W., & Bloom, L. (1986). Child custody evaluation practices: A survey of experienced professionals. Professional Psychology: Research and Practice, 17, 338–346. xxiv
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LaFortune, K., & Carpenter, B. (1998). Custody evaluations: A survey of mental health professionals. Behavioral Sciences and the Law, 16, 207–224. Lubet, S. (1999). Expert testimony: A guide for expert witnesses and the lawyers who examine them. Chicago: American Bar Association. Mart, E. (2007). Issue focused forensic child custody assessment. Sarasota, FL: Professional Resource Press. Melton, G., Petrila, J., Poythress, N., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York: Guilford Press. Rohrbaugh, J. (2007). A comprehensive guide to child custody evaluations: Mental health and legal perspectives. New York: Springer. Schutz, B., Dixon, E., & Lindenberger, J. (1989). Solomon’s sword: A practical guide to conducting child custody evaluations. San Francisco: Jossey-Bass. Stahl, P. (1994). Child custody evaluations: A comprehensive guide. Thousand Oaks, CA: Sage. Stahl, P. (1999). Complex issues in child custody evaluations. Thousand Oaks, CA: Sage. Strasburg and Gutheil & Brodsky A., (1997). On wearing two hats: Role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry, 154(4), 448–456.
Contributors Carrie Barker, BA School for Social Work Smith College Northampton, Massachusetts Brenda Bursch, PhD Professor, Clinical Psychiatry and Biobehavioral Sciences, Pediatrics Clinical Director, Pediatric Psychiatry Consultation Liason David Geffen School of Medicine at UCLA Los Angeles, California Bertram J. Cohler, PhD William Rainey Harper Professor Department of Comparative Human Development University of Chicago Chicago, Illinois Mary Connell, EdD Independent Practice Fort Worth, Texas Robin M. Deutsch Director of Forensic Services of the Children and the Law Program Department of Psychiatry Massachusetts General Hospital Assistant Professor of Psychology Harvard Medical School Leslie M. Drozd, PhD Editor, Journal of Child Custody Psychologist, Independent Practice Newport Beach, California
Susan M. Fisher, MD Associate Professor, Department of Comparative Human Development Clinical Professor, Psychiatry University of Chicago Faculty, Chicago Institute for Psychoanalysis Chicago, Illinois James R. Flens, PsyD, ABPP Clinical and Forensic psychologist, Private Practice Brandon, Florida Robert M. Galatzer-Levy, MS, MD Lecturer in Psychiatry, University of Chicago Faculty, Chicago Institute for Psychoanalysis Clinical and Forensic psychiatrist and psychoanalyst, Private Practice Chicago, Illinois Jeanne Galatzer-Levy, MS Science and Social Science Editor Evanston, Illinois Livia L. Gilstrap, PhD Assistant Professor, Department of Psychology University of Colorado Colorado Springs, Colorado Jonathan Gould, PhD, ABPP Clinical and Forensic Psychologist, Private Practice Charlotte, North Carolina
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xxviii CONTRIBUTORS
Michael J. Jenuwine Associate Clinical Professor of Law Associate Professor of Psychology University of Notre Dame Notre Dame, Indiana Joan B. Kelly Consultant and Lecturer Corte Madera, California
Bradley D. McAuliff, PhD, JD Department of Psychology California State University Northridge, California Charlotte J. Patterson, PhD Department of Psychology University of Virginia Charlottesville, Virginia
Margaret Bull Kovera, PhD Professor, Psychology John Jay College of Criminal Justice City University of New York New York City
Kayla Pope, JD, MD Child and Adolescent Psychiatry Research Fellow Children’s National Medical Center/NIMH Washington, DC
Louis Kraus, MD Chief, Section of Child and Adolescent Psychiatry Rush University Medical Center Chicago, Illinois
Marsha Kline Pruett, PhD, MSL Maconda Brown O’Connor Professor Smith College School for Social Work Northampton, Massachusetts
Kathryn Kuehnle, PhD Florida Mental Health Institute Department of Mental Health Law and Policy University of South Florida Tampa, Florida Michael E. Lamb, PhD Department of Social and Developmental Psychology University of Cambridge Cambridge, United Kingdom Anita Lampel, PhD Diplomate, Clinical Psychology Private Practice David A. Martindale, PhD, ABPP Forensic Psychologist in Private Practice New Jersey
Robin Shapiro, MD Child, Adolescent, and Adult Psychiatry Private Practice Chicago, Illinois Sarghi Sharma Child, Adolescent, and Adult Psychiatry Forensic Psychiatry Private Practice Galveston, Texas Norman M. Sheresky Sheresky, Aronson, Mayefsky & Sloan, LLP Matrimonial and Family Law New York City Christopher Thomas, MD Child and Adolescent Psychiatry University of Texas Medical Branch Galveston, Texas
CHAPTER 1
From Empirical Findings to Custody Evaluations ROBERT M. GALATZER-LEVY, JONATHAN GOULD, and DAVID MARTINDALE
E
VERYONE WORKING IN the area of child custody agrees that these decisions should be based on credible information. In this chapter, we describe a framework for evaluating the significance of these findings. Expert custody evaluators generally, though often informally, proceed through a three-stage process in forming opinions in custody matters:
1. Based on their knowledge of the kinds of facts that are likely to be relevant to the decision, they collect data about the particular situation. 2. Using previous knowledge and further research, they refer to studies that may be relevant to the facts they find, assess the pertinence of the studies to the situation, and apply their findings to the facts at hand. 3. Weighing the relative importance of these facts, they attempt to integrate the resulting conclusions into an overall scientifically reliable recommendation. Often the evaluator will not carry out these steps in sequence, or the process may loop back on itself. For example, on reviewing the pertinent scientific literature, the evaluator may see the need to gather additional facts before making a recommendation. In developing an opinion, evaluators commonly go through several iterations of this process. In practice, the care with which data about custody matters is gathered varies greatly. Many evaluators use their training and an unsystematic reading of the scientific literature as their sole source of information about the state of research in the matters about which they give opinions; their process of reaching an opinion is incompletely thought through. Legal professionals are 1
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often uncertain about how to assess the statements of behavioral science experts in these matters. We describe several considerations that can lead to more credible opinions and more meaningful assessment of experts’ statements. Currently, the legal criteria for using scientific expert opinion are in flux. Roughly speaking, the courts appear to be moving from a sociologically based view of truth (Truth is what experts in the field believe) toward a methodbased view (Truth is what is discovered through the appropriate application of scientific research methods). This shift reflects an increasing unwillingness in our society to accept statements as true simply on the authority of credentialed experts. Most people familiar with the field would heartily endorse this move. Despite their limitation, scientifically based opinions are more likely to provide pertinent information to decision makers and information that is more easily evaluated than opinions with other bases, such as personal experience. Where possible, we want to use scientifically based opinions to inform decisions. At the same time it is important to recognize that the complexity of human psychological life entails that custody decisions often must be made in situations that do not exactly fit with available research. In these cases it is particularly important that evaluators neither leave the court without assistance in understanding that complexity nor claim levels of certainty that they do not have. Evaluating the merit of scientific evidence places tremendous demands on the courts. The boundaries of adequate scientific method generally, but especially in disciplines that study human behavior, are the subject of intense dispute among behavioral scientists and philosophers of science. Even when there is reasonable agreement about these boundaries, technically challenging questions arise in assessing research studies. These questions are often difficult for people with years of training in methodology to resolve. Attempts to resolve them in a legal context demand much of the courts. The main difference between scientific and other forms of knowledge is that scientific knowledge is always accompanied by an assessment of its own credibility. Each step in a scientifically conducted study is at least potentially subject to open scrutiny and evaluations. The question of the truth of the statement always remains open and subject to test. A typical scientific research report includes a section on materials and methods that describes how the reported data were collected and the means used for analysis. It does so in such a fashion that a reader could, at least potentially, replicate the research. The report also includes specific reasoning that shows how these data are related to any conclusion drawn and an indication of the extent to which alternative possibilities have been assessed and the likelihood of their being true. Thus, by their very nature scientific opinions are never certain, and their limitations and defects should be made clear.
From Empirical Findings to Custody Evaluations 3
Although scientists have elaborate methods for assessing the credibility of scientifically based statements, no particular method is inherently necessary for an investigation to be scientific. In studying human behavior, many investigators find statistical methods extremely informative. However, when treated as a sort of magical ritual to make an investigation appear to be scientific, statistics can provide a false impression of the status of the investigator’s findings (Cohen, 1990; Salsburg, 1985). Nonquantitative studies have yielded some of the most useful information about human behavior and psychological function, whereas some quantitative studies, despite elaborate statistical trappings, are of little use. In the study of people, a trade-off commonly occurs between ‘‘extensive’’ and ‘‘intensive’’ study (Chassan, 1979). To reach statistically valid conclusions, many subjects are usually necessary. The richer the matter studied (in effect, the more variables studied), the more subjects are needed. However, studying many subjects in depth is difficult and time consuming. The following example displays this contrast. In studying the long-term effects of divorce Wallerstein (e.g., Wallerstein & Johnston, 1990) and McLanahan and Sandefur (1994) used distinctly different methods that provide distinctly different results. Wallerstein studied a small number of subjects in depth over many years using an open-ended interview technique. Her studies provide clear, rich pictures of some of the common psychological configurations seen in children of divorce, with particularly good insight into their subjective experience. They do not, however, tell us how common these configurations are, to what extent they result from interacting aspects of the subjects’ lives, including the historical and demographic peculiarities of the sample studied, or the extent to which the subjects differed from other people like themselves. McLanahan and Sandefur based their studies on survey data collected by others. These surveys largely explored easily quantified aspects of the child’s situation such as family income and years of school completed. They involved very many subjects and systematically compared the subjects with individuals who had not been involved in divorce or who had lost parents in other ways. At the price of a much less rich picture of the children’s situation these authors provide reliable, quantitative information about the impact of divorce. Both types of research are scientific in the sense that they are clear about the means by which their data was collected and the logic that ties their conclusions to those data. Each has advantages and disadvantages: The Wallerstein studies provide the kind of richness but not the level of certainty or generalizability we would like; the McLanahan and Sandefur study is clear and convincing but does not reflect the psychological depth that most of us would want in reaching conclusions about children’s well-being. In this instance, the studies complement one another in the sense of looking at matters from different views and coming to compatible conclusions.
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In the following material, we explore how custody evaluators collect information about specific cases, how they can assess literature on the subject and its applicability to the particular case, how they form a framework for thinking about the relative importance of the information obtained through these processes, and how they deal with problems such as potential bias. FACTS In making custody assessments, mental health professionals make observations and collect reports from numerous sources. These provide a set of facts that can be further processed. Decisions about which facts to collect and what credence to give them are of great importance. The information an evaluator needs will depend on the questions to be answered. Too frequently, custody evaluators fail to focus on the specific issues pertinent to the situation and develop conclusions that go beyond or are irrelevant to the questions asked. They often collect both too much and too little information. Failure to gather pertinent information may leave the examiner ignorant of significant aspects of the situation. Irrelevant information can sway both the evaluator and the trier of fact in ways inconsistent with the goals of the evaluation. When working in a legal context, evaluators should develop a clear picture of the governing law to address the issues in the case. Many jurisdictions include specific issues that the court must consider in making decisions. For evaluators to be helpful in the decision process they must collect information pertinent to these questions. Many states’ statutes specify that the judge must consider the residential custodial parent’s capacity to support a relationship with the noncustodial parent in deciding with whom the youngster should stay. Some experts in child custody do not agree that this should be a central consideration (Goldstein, Freud, & Solnit, 1975). However, whatever opinions examiners may have about the law, they impede the judicial process when they fail to address the issues the court must address. Child custody experts have much to contribute to public policy, but the child custody evaluation is not the place to try to transform the law. Most custody decisions do not depend per se on the general psychological health of the parents but do depend, in part, on the impact of the parents’ psychological functioning on the child. Many mental health professionals, however, approach custody evaluations as they would the diagnostic assessment of a patient. The implications of the resulting diagnosis is often obscure in its meaning for the parent’s interactions with the child. Nonetheless, the presence of a serious-sounding diagnosis or test finding may sway the trier of fact or derail the focus of the evaluation. This is particularly problematic with regard to psychological test reports. Although the reports themselves are
Facts 5
usually carefully worded to indicate that the subject shows a pattern of responses consistent with some condition or commonly observed among individuals with a particular condition, the inexperienced reader is likely to finish reading the report with a sense that the subject suffers from many and severe psychological disturbances. The way facts are collected often profoundly affects their content and significance. The information collected in custody evaluations can be profoundly shaped by the collection process. For example, an interviewer who is perceived as sympathetic may be told many things that an apparently unfriendly interviewer is not told. Differentiating between the factors that substantially influence the data collection and those that do not can be difficult. This is partly because the subject’s response to the interviewer may be so idiosyncratic that the interviewer is unaware of it (e.g., the interviewer may remind the subject of a pleasant or unpleasant person the subject has known). These problems are particularly marked in interviewing children, where such factors as the child’s desire to please the interviewer or fears of parental disapproval may greatly shift the information provided (Ceci & Bruck, 1995). The greatest danger occurs when the evaluator is unaware of the factors in the interview or testing situation that shape the information received. Although this hazard has been particularly well studied with regard to interviews about abuse allegations, interviewers are at constant risk of suggesting ‘‘correct’’ answers to the questions through responses such as approving remarks, gestures, and interested further questions when the interviewee responds in a certain fashion. Because the attitudes of the interviewer and the intentions of the interviewee are so different depending on whether the interviewer is performing as an evaluator or a therapist, these roles should not overlap (Greenberg & Daniel, 1997). In talking to a therapist, it is in the client’s best interest to provide as full and accurate a picture as possible of the situation; in talking to an evaluator it is in the client’s best interest to provide a picture that will lead the evaluator to concur with the client’s opinions. The way an interviewer listens to the interviewee depends on an assessment of the interviewee’s intentions. This distinction is also important because most custody evaluators were trained primarily as clinicians. It is difficult enough for them to keep in mind that the underlying intentions of litigants are different from those of patients without the further confusion that results from trying to fill more than one role. In a forensic situation most subjects are highly motivated to have their point of view prevail. They are likely therefore to use whatever means they think will be effective to convince the evaluator of the merits of their own position. More or less subtle forms of dishonesty are common in custody evaluations. These range from overt lies to significant omissions to enhance
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presentation of the subject’s point of view. Attempts to form alliances with the subject in the interest of discovering what is best for the child sometimes help minimize the consequences of such tendencies. However, the fact that custody is being litigated is in itself an indication that the parents have been unable to lay out facts dispassionately and agree on conclusions. Especially in so emotionally fraught a matter as the custody of one’s children, it is rare that a litigant is willing or able to forgo efforts to achieve their desired result in favor of providing the evaluator with objective information. Evaluators should proceed on the basis that the information being provided is intended to influence them rather than to provide as accurate a picture as possible of the situation. When interviewers take on more than one role, they are likely to become confused about which role they occupy at a given time. The therapist’s goal is often to communicate support and understanding to the client, which will aid the client in overcoming some difficulty. Evaluators have no such intention and are, in fact, appropriately skeptical that the information being given has any purpose other than persuasion. The vigorous questioning that may be appropriate in an evaluation and the use of collateral sources of information used by evaluators are rarely appropriate for the therapeutic situation. It is generally not possible to be both a good therapist and a good evaluator. For this reason, all guidelines for custody evaluators recommend avoiding a dual role (Ackerman, 1995). (For a discussion of the numerous other reasons to avoid being both therapist and evaluator at the same time, see Strasburger, Gutheil, & Brodsky, 1997.) As with other matters, a scientific attitude in collecting facts is not characterized by the search for absolute certainty but rather in careful attention to possible sources of error and their correction. To this end, evaluators note the apparent credibility of sources of information, including the motives an interviewee may have for distorting information; the manner in which the information is presented; knowledge of common forms of distortion, including inaccuracies of memory; psychological test results that may pertain to credibility; and how consistent the information is both internally and with other sources of information. Some studies show that mental health clinicians are not particularly good judges of the veracity of the reports they receive (Ekman, 1992). Some of these studies are flawed in that they either placed the clinician in a trick position where he or she had little reason to anticipate that anyone would try to be less than honest or the clinician was given information of a type different from that ordinarily used by clinicians in making judgments of this kind. Methods are available to increase the clinician’s detection of deceit (Ekman, 1992). Still, the clinical assessment of credibility remains significantly imperfect, and clinicians cannot claim to be better at assessing truthfulness than other individuals based on research. Where significant facts in a case are controversial, as when
Facts 7
one of the litigants is accused of physical violence, the court, with its capacity to gather sworn testimony subjected to cross-examination and to assess evidence, is often in a far better position than the evaluator to determine the truth of various claims. In some jurisdictions the evaluator may ask the court to make a determination of the pertinent facts. When this is not possible evaluators may state how their opinions would be affected by various fact scenarios. Human memory and perception are more fallible then most of us would like to think. When collecting information from many sources, it is essential to remember that distortions are common and not necessarily the result of intentional deception (Schachter, 2001). Once people frame a view of a matter they are likely to selectively perceive and recall events in a fashion that supports their preconceptions. For this reason, evaluators should, where practical, utilize collateral sources of information (Dietz, 1996) and weigh conflicting descriptions of events. Evaluators themselves may forget or misperceive aspects of a situation. The more carefully, systematically, and contemporaneously events are recorded, the less likely examiners are to introduce significant distortions into situations.1 In addition to using ordinary thoroughness, many examiners follow comprehensive checklists when making observations during interviews and examinations to ensure that pertinent matters are recorded. Structured interviews serve a similar function. These guides have the advantage that the examiner is likely to observe and record items systematically. They have the disadvantage that they may discourage pertinent open-ended exploration and the noting of observations that do not fit within the preassigned format. When collecting information and making observations that are highly complex or available only once, recording the information may be useful. Many examiners have discovered the value of videotaping or audio taping at least portions of the evaluation. Sometimes significant elements of interpersonal interactions between parent and child during an evaluation become clear only through the retrospective evaluation of recorded interactions. An experienced examiner observed the interaction between a mother and her 6-year-old child, who had been removed from her care because of neglect associated with the mother’s depression and substance abuse. Although the examiner felt ill at ease observing the interaction, the mother appeared animated, interactive, and concerned for the child’s interests, as manifested by her encouraging play with several toys that she knew he enjoyed. When the examiner reviewed a videotape of the session, the source of discomfort became clear. Over the 45-minute session, the mother never once responded to something the child initiated. In fact, when the child introduced a new topic, the mother continued speaking about the matter she had been focused on before the youngster interrupted, giving no indication that she had heard
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what he had said. Even had the examiner been astute enough to pick up this pattern during the interview, without the videotape it would have been difficult to thoroughly and rigorously document it. Studies of the suggestibility of children show that youngsters’ reports may be profoundly influenced by subtle suggestion in previous and current interviews (Ceci & Bruck, 1995). Although this problem has been particularly noted in regard to sexual abuse allegations, it is important in any situation in which youngsters’ historical reports are important. Simply having been asked about an event may constitute the basis for the later ‘‘recollection’’ of the occurrence. For this reason, it is extremely useful to retain videotapes of sessions in which children report historical events. Not only do such tapes make it more possible to assess the extent to which the examiner unwittingly employed various means that are known to produce distorted reports, but they also make it possible to document situations in which the subject incorporated a question as a memory. Selective recording may be challenged on cross-examination, where the question will naturally arise as to why the entire session was not recorded or with an implication of bias as to what was recorded. The evaluator should also expect that recordings will be subpoenaed, with the possibility of data being taken out of context for possible use in cross-examination. For these reasons we believe that where possible, all interviews should be recorded. THE EVALUATION OF STUDIES The evaluator’s opinions should be based in the knowledge accumulated in his or her field. In the behavioral sciences, as in any scientific discipline, the rate of growth of an evaluator’s discipline is always too great for any one person to maintain a comprehensive knowledge of recent developments. Evaluators do have a responsibility, however, to remain aware of major recent trends in their field so that they can place specific knowledge in their discipline in context and reasonably evaluate whether older studies are consistent with current disciplinary thinking. Following World War II researchers found substantial evidence that certain styles of communication from parents to their children induced Schizophrenia in the child (Lidz, Cornelison, & Fleck, 1958; Lidz, Fleck, & Cornelison, 1965). On the basis of these studies an examiner might reasonably conclude that a youngster with early signs of Schizophrenia was the victim of what was termed a ‘‘schizophrenogenic’’ environment and would have appropriately considered this in making custody and visitation recommendations. More recent studies strongly suggest that the psychological environment in which the future schizophrenic grows up has a significantly smaller impact than biological factors in determining the course of the disease. Further
The Evaluation of Studies 9
exploration of the data on which the schizophrenogenic parent hypothesis was based demonstrated the flaws in the original analysis of the data (Lidz, 1984). Rather than the child’s Schizophrenia being the result of abnormalities in parental behavior, the already disturbed child appears to produce the parental abnormalities. Scientific knowledge characteristically changes across time. New research changes the best information available on a topic. This is a strength, not a weakness, of scientific knowledge. As noted, an expert giving the best information available in the early 1960s would have stated that the parents of a schizophrenic youngster brought about or at least contributed significantly to their child’s pathology through their disturbed form of communication. This is not the view supported today by available evidence, and the expert would state that. Part of the expertise expected of evaluators is a sufficient knowledge of their discipline and a sufficient capacity for critical thought so that they are able to assess the scientific status of published information they encounter. It is a reasonable expectation that evaluators will not only stay current with their field through reading and conference attendance but that they will also use the extensive resources available on the Internet to research topics in which there is ongoing conceptual and empirical development or that involve areas of knowledge with which they are not fully conversant. Although consultation, whether in the traditional form of discussing a case with a trusted colleague or by way of Internet discussions, is one of the ways that mental health professionals commonly deal with problems they cannot solve on their own, a consultant’s ideas should be used as a guide to developing an opinion of one’s own, not as the basis of that opinion. This is primarily because a scientific argument should rest on its own merits and not rely on an appeal to authority. Secondarily, if the opinion is really that of the consultant rather than the evaluator, the consultant should be made available for crossexamination. In assessing particular studies, several factors are ordinarily considered, including the source of the study, the status of the publication, the rigor of the reported study, and comparison of the study to related research. Each of these factors will contribute to the evaluator’s degree of confidence in a particular study. Researchers’ training should reflect the practical appreciation of sources of potential error, learning how to avoid elementary mistakes, and becoming familiar with the range of problems that commonly beset a research effort. Various forms of direct and implicit certification identify the level of the researcher’s training and experience. The researcher’s highest academic degree and its source may indicate the extent of his or her research training. Many mental health professional degrees, including the MSW, some PhDs,
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and MD, include little or no formal training in research methods. A PhD in psychology from a major university is very likely to have a strong background in research methodology. Similarly, the researcher’s career, as indicated by academic rank, record of publication, and the degree to which those publications are cited by other researchers, suggests the level of regard with which the researcher is held within the professional community and the extent to which he or she has a track record of producing research that has been found to be of high quality by individuals qualified to review it.2 A further indication that the work has been thoroughly reviewed is found in mention of sources of financial support. Major foundations and government agencies generally impose high standards of rigor for research proposals that they fund, so that funding from such sources suggests the work is of high quality. Scientific publications are of four types: publication in refereed or peerreviewed journals, publication in nonrefereed journals, chapters in edited volumes, and monographs. Publications may report new research findings or summarize and comment on older findings. Publication in a refereed journal indicates that two or more readers who are recognized authorities in the field concur that the article is of sufficient rigor and significance to merit publication. The quality of peer review itself varies substantially among journals, and failings of this system have been noted on numerous occasions (Burnham, 1990; Lock, 1990). Journals with many submissions are likely to impose higher standards on their authors than those that must work to fill their pages. Factors such as whether the peer reviewer can identify the author despite a blind reviewing process (McNutt, Evans, Fletcher, & Fletcher, 1990) and the peer reviewer’s conceptualization of his or her role (Horrobin, 1990) can strongly influence the peer review process. Nonetheless, it remains an effective methods for ensuring the rigor of published materials. The quality of non-peer-reviewed publications is more problematic. Lack of peer review may lead to lack of quality, but sometimes these articles are of particularly high quality because they are written by leading researchers in the field at an editor’s invitation. The editorial review of chapters in edited books also varies markedly, resulting in uneven quality. In the hard sciences (chemistry, physics, etc.), researchers rarely publish significant new results in edited volumes or as monographs. The situation is different in the behavioral sciences, where significant research commonly appears in these formats. This means that in the behavioral sciences the consumer of research must often independently assess the quality of the research presented. An additional factor external to the study itself that should activate the reader’s skepticism is the likelihood of the authors’ financial gain from particular outcomes. For example, if a study demonstrates the validity of a commercially available test
Assessing the Content of Scientific Publications 11
or the effectiveness of a drug in which the researcher has a financial interest, this should alert the reader to the greater likelihood of the report’s being shaped by those interests. Scientific literature suffers from a common problem with regard to negative results. A finding of the presence of some effect is more likely than the absence of an effect to stir interest both in those who decide whether an article should be published and in those who write the article. As a result, negative findings tend to be underrepresented in the published literature (Dickersin, 1990). Negative results are of two kinds: those that show the absence of an effect and those that do not reproduce the findings of previous investigators. Though they are underrepresented in the literature of most sciences, in assessing the credibility of research findings both of these results are of great importance. Despite researchers’ best efforts, factors of which they are unaware may influence outcomes. The failure to reproduce a finding in another study is a strong indication of such factors. ASSESSING THE CONTENT OF SCIENTIFIC PUBLICATIONS The assessment of research on the basis of its content and process is a complex matter. We simply outline here some major themes and particularly important areas. The reader should refer to detailed treatises to learn about the means of assessing research findings (Campbell & Stanley, 1963). IS IT SCIENCE? The U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) attempted to address the question of what research and opinion should be characterized as ‘‘scientific.’’ In doing so, the Court attempted to answer a problem that has concerned those interested in the philosophy of science since at least the sixteenth century. Prior to this time, knowledge was regarded as embedded in authoritative texts from which correct information could be mined by those with the authority to do so. Starting with the work of Francis Bacon, a new way of knowing emerged, having as its chief reference observable facts about the external world. The interpretations of these facts was not a matter of authority but was based on the possibility that any adequately trained person could make the same observations and that the chain of reasoning from facts to interpretation could be made explicit. Over the past four centuries, but especially in the twentieth century, scientists and philosophers of science refined and debated these core questions of what methods are scientific and when an investigation is properly labeled as such. The resulting ideas are both more technically demanding and more controversial than the Supreme Court’s decision suggests.
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The Daubert decision actually goes in the opposite direction from much of the most recent work in the philosophy of science. Daubert holds that science is characterized by its methods and that its claims to truth are based on those methods. This was the dominant view among methodologists until approximately 20 years ago. More recently, students of the history and sociology of science have argued that the actual way science is conducted is not related so much to method as to the social structure of scientific communities (Feyerabend, 1975; Kuhn, 1970; Latour & Woolgar, 1986). The newer picture of the nature of scientific knowledge is, in fact, more compatible with the Frye rule (Frye v. U.S., 1923), which held that expert opinions must be compatible with widely accepted ideas within the expert’s field. However, if we accept the view that there are characteristic, if not utterly precise methods of inquiry that set scientific knowledge apart from other kinds of knowledge, then the centerpiece of such knowledge is that ideas are tested against reliable observations about the world. If I say X is a scientific fact, I must be able to demonstrate this through observations about the world. Moreover, terms must have commonly accepted, agreed-on definitions. Observations must be replicable both across raters and through time. The question of which data will determine whether X is a scientific fact is not simple. The things referred to in X must be clear enough so that researchers can agree whether what is observed is an example of this particular sort of thing. If someone says, ‘‘All heffalumps are green,’’ there is no way this proposition can be scientifically tested until we know and agree what a heffalump is and how to define ‘‘green.’’ This becomes a significant problem in much psychological research because apparently meaningful terms may in fact have very unclear empirical referents. For example, mental health professionals are often asked to comment on the ‘‘dangerousness’’ of an individual. But until this term is defined in a way that refers to agreed-on, specific, empirically observable factors, the behavioral scientist has no way to collect data pertinent to the issue. Phrases used in custody evaluations such as ‘‘the best interest of the child’’ have little meaning in a scientific context until they are conceptualized in terms of reliable, observable phenomena. Scientific statements are subject to tests against observations. Consider this process conceptually. For many years, the proof of a hypothesis was regarded as the collection of observations that confirmed it. If a scientist claimed that all cells have nuclei, he or she could test and confirm this assertion by observing many cells under the microscope. But this method of testing statements can prove faulty in two ways. First, it can involve a ‘‘sampling error’’: For some reason the scientist may not look at those cells that lack nuclei. Second, although the statement appears to be about the external world, it may really be in a form in which no observation could show it to be wrong. For example, if a theory stated, ‘‘Every cell contains a nucleus, but some of these nuclei are
Assessing the Content of Scientific Publications 13
invisible,’’ no microscope observation could prove the statement false, so any positive evidence about this matter would be essentially meaningless. Popper (1959) argued that only propositions for which one could imagine an experimental outcome contrary to the proposition should be regarded as scientific. This is the concept of falsifiability. For a hypothesis to be falsifiable, one must be able to design an experiment that would lead to the conclusion that the hypothesis was false. In the study of human behavior this can be a difficult requirement. Consider the psychoanalytic hypothesis that all young boys have anxietyladen sexual desire for their mother that they manage either by failing to become socialized to the taboo against incest or by forcing the idea from awareness, minimizing its emotional significance. Stated this way, no empirical data could possibly lead to the conclusion that the original statement was false because both the presence of erotic interest in the mother and also the absence of such interest would be taken as confirming the hypothesis. Thus the proposition is not falsifiable.3 Not every investigation must involve a crucial experiment that tests a hypothesis. Most investigations simply provide additional reason to believe or disbelieve a statement. However, to be scientifically meaningful a hypothesis must be capable of some form of critical test. As mentioned earlier, scientific knowledge rests on publicly available observation and reasoning. The argument that someone simply knows more or has more direct access to truth is unacceptable in scientific discourse. In some ways, this is a theoretical rather than a practical distinction. Most people cannot follow the reasoning involved in the theory of general relativity, nor can they understand, much less perform, the experiments that confirm that theory. At no point, however, did Einstein say or imply, ‘‘I know more about the universe than you do and this theory is simply right.’’ His reasoning was based on logical steps and empirical evidence. (We are talking here about how the theory was substantiated, not how Einstein discovered it.) When experts claim to be offering a scientific opinion about human psychological functioning, they must be held to this same standard. The empirical and logical steps leading to a statement must be capable of being laid out and not be dependent on authoritative assertions. This can be a real problem in behavioral science studies, in which a convincing rhetorical ability may be confused with scientific methodology (Spence, 1994). Vivid case histories are likely to impress readers and remain with them even when clear data contradict conclusions the researcher derives from them. In an experiment still often quoted in psychology textbooks, John B. Watson claimed to demonstrate his theory that phobias result from Pavlovian conditioned reflexes. In a conditioned reflex a stimulus that regularly elicits a response (the unconditioned stimulus) is paired with one that ordinarily does not elicit that response (the conditioned stimulus). This often results in the
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conditioned stimulus eliciting the response. The most famous example is Pavlov’s experiment; after a ringing bell and the presentation of food had been paired, Pavlov’s dogs learned to salivate when the bell was rung. Watson proposed that phobia resulted in a similar way when a noxious unconditioned stimulus was paired with an otherwise neutral situation. He vividly described an experiment in which ‘‘Little Albert,’’ an 11-month-old child who had previously shown no fear of rats, cried and avoided the rat after it was presented to him paired with the stimulus of a loud, clanging noise (Watson & Rayner, 1920). The experiment became the backbone of a theory of phobias that to this day has many adherents (Wolpe, 1990). Watson’s original description still makes compelling reading. However, attempts to replicate the experiment repeatedly failed (Seligman, 1971), a fact that received little notice as the rhetorical power of Watson’s writing was so great. It is worth keeping in mind that there are other kinds of valuable knowledge besides scientific knowledge. We argue only that if knowledge is presented as scientific it should be scientific, and that courts are entitled to know the status of the opinions presented to them. Because of the enormous prestige of science in our society, many people are tempted to describe their opinions and beliefs as scientific when they are not. Personal values and common sense may be presented as though they had scientific backing when they do not; this is misleading to decision makers who are relying on the information provided to have a scientific basis. In child custody matters, experts often testify based on their experience or clinical experience. It is important for all those concerned to treat these opinions for what they are worth. They may be of considerable value, reflecting accumulated knowledge based on real situations. However, opinions are subject to a variety of problems and rarely reflect the systematic collection of data characteristic of scientific investigation. When the expert does not recognize these limitations it causes problems. The opinion may reflect the expert’s experience with a special subpopulation; for example, a mental health professional who works with emotionally ill adults who were abused as children is likely to believe that abuse usually has devastating psychological effects because the abused individuals he or she sees are all psychologically disturbed. Also, when information is not systematically collected or recorded, vivid experiences are likely to stand out. Before the era of effective antibiotic therapy tonsillectomy was a routine procedure in the United States because most physicians found that some very ill children got dramatically better following the procedure; the children who were not affected did not stand out in the same way. Similarly, experiences that are congruent with the expert’s views are likely to stand out. Every therapist of some experience has treated individuals who, after an unrewarding time
Assessing the Content of Scientific Publications 15
spent in some other form of therapy, did well in treatment with them. Therapists are commonly convinced that such experiences indicate the general superiority of their own therapeutic approach, at least for this type of patient, and fail to appreciate that similar experiences probably occur involving their own former patients and that other therapists probably enjoy success rates similar to their own. Finally, clinical experience is usually limited to the period during which the subject is in treatment. This can easily lead to a misunderstanding of the long-term course of a situation. The mental health professional sees the outcome in terms of when services were completed, which may not reflect important changes in the course of the condition over years. DO
THE
DATA SUPPORT
THE
CONCLUSIONS?
In attempting to answer a question scientifically, data are collected that are believed to address the issue. In assessing whether data support a conclusion, it is important to ask how well this is accomplished. Doing research, especially research about people, is often extremely difficult and time consuming; at the same time, researchers want to produce meaningful findings. As a result, there is often some slippage between data and conclusions, usually in the direction of drawing stronger conclusions than the data warrant. Much of the methodology of scientific investigation is directed at attempting to get as much information from data as possible while avoiding reaching conclusions that are not supported by the data. Many of the issues discussed earlier with regard to the information collected in assessments apply to data collected for research. Accurate descriptions of the setting in which the data are collected, attention to the accurate recording of those data, and the minimizing of reliance on memory and complex perception are even more important in the collection of research data. Most research publications carefully specify these matters. In assessing a research publication, the methods section should be reviewed with these considerations in mind. Surprisingly often, methods sections will indicate limitations in the work that otherwise would not be recognized. For example, for many years it was common in biomedical research to use only male subjects, at least ostensibly because the use of female subjects complicated the analysis of data. This information, which certainly opens up the question of the applicability of these studies to women, is invariably present in the methods section and can be used to correct the impression that the results are universally applicable. When a methods section is missing from a paper, this should raise a red flag about the soundness of the reported observations. Much psychosocial research involves various instruments and test batteries designed to measure some aspect of psychological function. Several
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thousand such instruments are sufficiently well developed to have been described in multiple publications and reviews. Each claims to measure some aspect of human function. The validity of a measure is the extent to which it, in fact, measures what it claims. When the matter to be measured is clear and there is some sort of gold standard against which to compare the result, determining validity is relatively easy. Thus, if we wanted to decide whether a scale validly measures weight we would compare its results to widely accepted standards, such as those maintained by the National Bureau of Standards. But for many of the matters we try to address in studying people, no such simple absolute standards exist. We must first clarify what we mean by the terms we use and then see how well a measure reflects these concepts. For example, if we have a test that purports to measure whether a person is a ‘‘good parent,’’ we would need to clarify what was meant by this term and the extent to which the test measured the resulting qualities.4 Validity always refers to a purpose for which the test is being used. A test may be valid for one purpose but not another (e.g., grades in college mathematics courses may be valid predictors of grades in physical science courses but not grades in English courses). The concept of validity has been the subject of considerable refinement and clarification. Face validity refers to the observation that a test, on the face of it, is relevant to the quality measured. For example, performance on a test in which the subject is asked to do arithmetic problems on the face of it shows that subject’s abilities to do that sort of problem. Content validity refers to a more thorough analysis in which we explore the extent to which a test measures matters pertinent to the question we are trying to answer. For example, a test of parenting ability might be shown to measure factors known or believed to contribute to parental function. However, measures need not have content validity to be useful. Certain important measures may accurately reflect an aspect of psychological function even though they do not necessarily directly address it. For example, although an individual claiming to have unusual experiences is not necessarily delusional, reports of such experiences may be highly correlated with delusions.5 Correlation validity refers to the extent to which test results correlate with significant aspects of the person’s current or future performance. The correlation need not reflect any other meaningful relationship between the item measured and its correlate. Construct validity refers to the extent to which a measure makes conceptual or scientific sense. In the absence of a gold standard, the validity of a measure is assessed by how well it fits within a network of measures that are used to study related concepts, known as the nomothetic net. In assessing the validity of a measure, researchers commonly combine several points of view about validity. In assessing the usefulness of a study, the various points of view regarding validity may serve as guideposts in mapping the investigator’s thinking.
Assessing the Content of Scientific Publications 17
Looked at from a different angle, the reader of published studies should always be skeptical about the way the author uses terms. Simply because a test is said to measure a quality that goes by the same name as one with which the reader is familiar does not mean that the test measures that familiar quality. One must look at the way the test was put together and demonstrated to be related to the underlying construct to know whether, in fact, the test measures that construct well. All the issues discussed in Chapter 4 on testing apply to tests used in research studies. Especially in the case of projective tests and tests that have not been well studied, the reader should not assume they are as solidly based as one might hope. For many years, the standard text of psychological testing, which focused primarily on projective tests, was a volume by Rapaport, Gill, and Schafer (1945) based on the diagnostic test battery developed at the Menninger Clinic. This book formed the basis of many research and clinical studies. Though the studies claimed to include normal controls, these turned out to be Kansas State Troopers. With no offense meant to these men, it is reasonable to doubt that they reflect the ordinary members of the community. Major criticism can be raised of the research supporting the validity of the most commonly used scoring system for the Rorschach, a widely used projective test (Groth-Marnat, 1997). Much of the supporting research is correlational, with little information given about the actual false-positive or false-negative rates of inferences based on the use of this test. An important aspect of validity is sensitivity. If the instruments used in a study cannot pick up significant differences between subjects, important aspects of the situation will not be adequately studied. The more sensitive a measure, the less reliable it is likely to be (i.e., the less likely it is that repeated measures of the same quantity or measures of the same quantity by different individuals will be the same). Obviously for a measure to be meaningful it must also be reasonably reliable. Researchers must demonstrate or refer to demonstrations that the measures they use are both appropriately sensitive and reliable if their claims are to be credible. It is rare that findings of research studying people will show the clear delineation seen in the physical sciences. If we do a study of whether weights fall at the same rate when dropped in a vacuum, we expect that all the weights will so fall and would regard the experiment as incomplete if a small proportion of the weights fell at a different rate without explanation. In studies of people, things are rarely so straightforward; among the many factors that are likely to affect any significant aspect of human living, we rarely find one factor so powerful that it almost always causes a given effect. Because studies of people seldom have the sharp clarity of studies in the physical sciences, it is necessary to develop tools for assessing whether an observed relationship results from an actual relationship or occurs by chance.
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Over the past century and a half, scientists who have had to deal with the messy data typical of the study of people have developed a discipline that addresses this problem: statistics. The discipline of statistics is devoted to the question of how to reliably extract information from observations and how to estimate the degree of certainty with which that information is asserted (Stigler, 1986). It is usually difficult to extract meaningful patterns from the welter of information with which an investigator is confronted. For example, we might observe declining school performance in youngsters following divorce. We would want to determine the relationship of this finding to possible specific changes in the children’s behavior (inattention in class, decreased attendance, indifference to good performance, unavailability of parental support in doing academic work) and the changes in the children’s environment (the fact of divorce, change of residence, parental reactions to divorce, community reaction to divorce). Finding a systematic approach to answering such questions is one job of statistics. A second job is estimating to what extent we should rely on the findings. In this example, if we study 10 youngsters involved in divorce and discover that 8 of them are less attentive in class, 7 have parents who have become less engaged, and 6 of these cases overlap, are we justified in drawing any conclusions about the relationship of these factors? To what extent is the overlap the result of chance? What is the likelihood that we would have a similar finding with another group of youngsters? How well do the 10 youngsters we have studied represent children with school difficulties following divorce? As anyone who has observed gambling or estimated probabilities knows, human intuition about the likelihood of probabilistic events is extremely poor. Statistics often provides quantitative estimates of how likely it is that a finding results from chance or reflects a real difference; more generally it produces estimates of how likely various experimental outcomes are given an underlying causal model. Even an outline of the statistical methods commonly used in studying the behavioral science issues pertinent to divorce would require far more space than we have available (see, e.g., Hopkins, Hopkins, & Glass, 1996, for a standard introduction to these issues; see Keren & Lewis, 1994, for a comprehensive review of them). However, we will briefly outline some common sources of confusion that arise from statistical studies in the behavioral sciences and some common methodological problems of which readers should be aware in thinking about the usefulness of the study. As discussed earlier, the mere presence of a statistical or quantitative treatment in a research paper may suggest a greater level of authority and credibility than the paper deserves. In assessing the quality of a study, remember that statistics and quantity are only tools for finding information. If used wisely to gather important information, they can be exceedingly
Assessing the Content of Scientific Publications 19
useful. However, because of their prestige, they can also hide substantial limitations in the study. The concept of statistical significance is often misunderstood. Often given as a probability, statistical significance states the likelihood that a finding would arise by chance in a given situation. In the behavioral sciences, findings are generally regarded as significant if the likelihood of their being chance results is less than 1 in 20 (p < .05). Failure to demonstrate statistical significance indicates only that the study fails to demonstrate the hypothesis. It says nothing about the truth or falsity of propositions not being specifically studied. Providing a large enough sample to achieve statistical significance, even when a phenomenon is real, may be difficult; then the distinction between truth and statistical significance becomes particularly important. In long-term outcome studies it is far easier to collect information about such matters as economic well-being than psychological states in depth. As a result, we do not have good statistical studies showing whether children’s views of themselves are negatively altered by parental divorce. Some authors have concluded that the absence of such findings means that such effects do not occur or occur only as a result of other, incidental factors. The data support no such conclusion. They instead point to the absence of adequate studies to address the question. The presence of statistical significance may be equally confusing. A study may indicate a probability of less than 1 in 20 for a relationship between two variables simply because so many variables were studied. If we study 15 relationships, the probability that one of them will have a probability of less than 1 in 20 becomes substantial. Statistical significance does not necessarily point to a meaningful relationship. In particular, such matters as causation cannot be properly inferred. A relationship between two variables may exist, but this may result from a common cause. Statistical significance does not necessarily point to meaningful differences; it simply points to the extent of certainty with which one can say there is some difference. Some differences, though definitely present, are nonetheless practically meaningless. Statistical significance tells us little about the size of the effect being observed. The numbers 3.0000 and 3.0001 are different from one another with absolute certainty, yet there are very few contexts in which this difference matters. Although many journals now require that all articles involving statistical reasoning be reviewed by a competent statistician, publications that have not been subjected to such review surprisingly often have simple statistical mistakes. A common error is to use statistical tests that are not appropriate to the data. Many statistical tests assume that a variable is distributed in a certain way in a population (e.g., that a given variable, such as height, is distributed in a bell-shaped curve). When this is not the case, the reasoning
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that supports the computation of various statistical measures may no longer apply and these measures may produce misleading results. An important group of methods commonly used in statistics involves correlations and regressions. In almost all situations involving people, many things are happening at once and it is the job of the researcher to discover how these things are interrelated. A correlation study explores the extent to which two variables change together. Thus the extent to which children’s behavior becomes disruptive in the period immediately after a divorce varies with the age of the child. The description of this relationship is a correlation. In many circumstances, correlations can be described as a single number, the correlation coefficient, which measures how much one variable changes with the other. In regression analysis, the situation is conceptualized somewhat differently. If many factors contribute to an observed change, one can think of that change as being the result of summing those factors. Studying the change in many situations may allow the researcher to describe it as the sum of various factors, each weighted by some constant. This is called a regression analysis. Both forms of analysis aim at showing the relationship between important variables. In the case of each analysis, we can discover how much of the change is not accounted for by the factors we have studied. Properly used correlation and regression analysis are powerful statistical tools for unraveling complex situations. A common error that particularly affects decision processes is equating correlation with causation. If two situations are causally linked it makes good sense that altering one will change the other. If the link is a mere correlation, however, such a change does not make sense. In the example discussed earlier concerning communications between parents and their schizophrenic children, we saw how correlation and causation can be confused. In the initial studies, a solid correlation was observed between the quality of parent-child interaction and the child’s diagnosis. However, the researchers erroneously concluded that this correlation represented a causal relationship, in which the parent’s communication style caused the offspring’s illness. As mentioned earlier, statistical methods have obtained a status in the behavioral sciences that sometimes goes beyond their actual usefulness. In particular, it is extremely difficult to study complex situations over time using the standard methods of sampling statistics. In the attempt to gather sufficient quantifiable data for statistical analysis, it often becomes necessary to simplify the situation to such an extent that factors that are commonly believed to be important cannot be addressed in a study. Additionally, for all their limitations, in-depth studies of individuals over time have contributed much of what we know about human psychological function in complex, emotion-laden situations, such as the ones we are trying to address in
Assessing the Content of Scientific Publications 21
custody evaluations. In recent years, many methodologists have recognized that the old, conceptually weak case history method can be improved in several ways to produce very informative case studies (Yin, 1994). By paying close attention to the way conclusions are drawn and generalized, researchers have found case studies to be an increasingly effective means for studying complex psychological function. In addition to care in collecting and interpreting data, contemporary case study methodology often focuses on closely monitoring the time course of events (e.g., whether an improvement occurs in a subject at some regular interval following an intervention). When assessing reports of case studies or groups of case studies, readers should not simply discard them as methodologically unsound but rather examine the extent to which they use contemporary methods to ensure quality. IS
THE
STUDY CONSISTENT
WITH
OTHER RESEARCH
IN THE
SUBJECT?
Although a study may be carefully performed and its careful analysis may show no glaring failings, it is still appropriate to ask how well it coincides with related studies. In its most formal version, this process takes the form of replication, usually in a different context. Replication is often particularly important when studying behavioral and psychological issues because factors of which the investigator may be unaware can influence outcomes. When a study appears significantly inconsistent with other research findings, a high level of skepticism about that study is appropriate and a search for the causes of the differences should be made. Because isolated studies are subject to substantial errors, behavior scientists rely on them only when they must. Studies of the same subject matter are often difficult to compare. Differences in the population studied and the study procedure may make it unclear how much weight should be given to each study. In the past four decades, a means of comparing and consolidating groups of studies has emerged. Called meta-analysis, the method is continuing to evolve and has at times been controversial (Garfield, 1991; Hunt, 1997). Yet meta-analysis provides a systematic way to bring together, compare, and use comparable data on the same topic in a manner far superior to the traditional review article. Findings that are inconsistent with other research are not necessarily in error. However, the differences in the findings must be explained for the work to be taken seriously. A particular group of problems arises with regard to studies of therapeutic and similar interventions. Initial evaluations are commonly performed by enthusiasts for the intervention, who, in addition to other difficulties, are often naive about methodology. The very enthusiasm of the investigators working on a new form of treatment may produce nonreplicable positive results unrelated to the purported mode of action of the treatment. Particularly when an intervention is reported as producing
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striking successes when other methods have not, the likelihood that the research can form a reliable basis for recommending that therapy is small. Custody decisions often require that a parent receive treatment for a condition that impacts the child negatively on the basis of the treatment’s enthusiastic endorsement by a mental health professional. These recommendations may be contrary to the broad consensus among students of the same conditions that these conditions are not significantly responsive to treatment. APPLYING EMPIRICAL STUDIES TO PARTICULAR CASES In the best of all possible worlds, experts would have a firm database of findings about the best interests of children in various circumstances, match the child’s situation to the database, and give a clear, empirically based opinion about how the particular youngster’s best interests could be served.6 Rarely is this possible. Several factors make the situation more complex and difficult. We have already discussed the challenges of assessing the individual situation and reaching meaningful research conclusions. When we try to bring the two together additional questions arise. First, we need to ask whether the particular child’s situation is actually an instance of the type studied in the research. Second, we need to ask how important the finding is to the child’s situation. Third, we need to know whether the finding can be meaningfully translated into something that can actually be done in the real situation. Finally, we need to think through, given the imperfection of our knowledge, what standards should be applied to the quality of expert knowledge in custody decisions. DOES
THE
RESEARCH APPLY
TO
THIS CHILD?
Research is always done on a sample drawn from a population. Thus a researcher might study the impact of visits with a noncustodial parent by taking his subjects from 8- to 10-year-old urban African American boys of low socioeconomic status whose parents have been divorced for at least two years. Assume that the study was of high quality and produced clear recommendations about the frequency of such visits that would most benefit the child. Is this study useful in making decisions about a middle-class White girl whose parents are in the midst of a divorce? Is it useful in making decisions about middle-class African American boys who are otherwise similar to the boys originally studied? Stated generally, if we find a situation where the subject of an evaluation belongs to the population from which the study sample is taken, we can apply the findings of the study directly. However, in other circumstances we need to ask how well or poorly the findings apply.
Applying Empirical Studies to Particular Cases 23
One approach to this problem begins with asking why we might expect the findings not to apply: In what way does the subject of evaluation differ from the research sample? In our example, many investigators might believe that African American boys of low socioeconomic status tend to have limited relationships with paternal figures and would particularly benefit from those relationships compared with other youngsters. Insofar as this belief is correct, the importance of supportive contact with a noncustodial father is likely to be greater than for other populations of youngsters. Having identified likely perceived differences, one can then ask whether there are empirical studies that suggest these differences are meaningful. If (as is the case) most studies of the effects of father absence on the well-being of youngsters showed that there is little difference in its impact as a function of race (McLanahan & Sandefur, 1994), then the evaluator may conclude that the difference between a study population of African Americans with low social status and the population from which the subject comes is unlikely to be significant for the purposes at hand. It is important to remember that scientific findings are characterized by the degree to which they are self-critical, not by their definitive nature. When applying studies to individual children, it is the evaluator’s job to analyze the reasoning and findings that lead to his or her conclusions and the extent to which they are likely to be true—not to achieve absolute certainty. HOW IMPORTANT IS
THE
FINDING?
All real custody decisions involve factors that weigh on each side. One parent may be able to spend more time with the child, whereas the other may provide the child with access to superior schools. One parent may have a better sense of the child’s emotional life, whereas the other may provide a better model of socially acceptable behavior. In many instances, significant empirical evidence of the value or disadvantage of various parental qualities will be available from the research literature. However, the comparative importance of these various factors has rarely been systematically studied. Some methods of evaluating custody implicitly weight these factors in relation to one another (Bricklin, Elliott, & Halbert, 1995). Still, implicitly or explicitly, in coming to a recommendation the evaluator must weigh the relative importance of findings. As discussed previously, studies should not only tell us that some factor makes a difference but also give some picture of the magnitude of that difference; this is called the effect size. When comparing parents’ abilities to care for the child, effect sizes from pertinent studies should be a central concern. Sometimes effect size is addressed in terms of common sense: If one parent engages in behavior that threatens the child’s life and the other
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provides limited opportunity to play with peers, we do not need a systematic study to conclude that the latter parent should have custody. However, more subtle situations may require precisely such a comparative analysis; for example, with certain forms of parental psychiatric illness, empirical findings about the impact on children run contrary to most people’s intuition (see Jenuwine & Cohler, Chapter 13). In many instances, the best that evaluators can do is make their analysis as explicit as possible. This will allow evaluators and others who use their findings to explore the extent to which implicit formulation, including the evaluator’s personal values and biases, have found their way into the recommendations. CAN
THE
RECOMMENDATIONS BE IMPLEMENTED?
In the course of custody studies, evaluators commonly observe situations that they believe could be improved if the parties acted in some particular fashion. The evaluator may conclude that a particular visitation schedule would be optimal for the child or that one or more of the parties would benefit from therapy; the evaluator may conclude that peace could be maintained between the parents by the introduction of a third party who would supplement the custodial parent’s caretaking function, thereby making up for observed limitations in that parent. Whatever the intrinsic merits of these recommendations, they are of no value unless they can be implemented. Parents may voluntarily adopt the recommendation for the child’s benefit, although the process of convincing them to do so may involve the evaluator in problems of playing dual roles in the divorce process. It benefits the child little for parents to agree to terms in the midst of litigation unless the parents are likely to abide by those terms once the litigation is complete. Evaluators commonly confuse the court’s role in custody matters with its role in child abuse and neglect cases. In the latter situation, the court or those acting with its implicit backing freely exercise considerable power over parents who have been shown to be inadequate in their parental functioning. The court can and does require parents to participate in arrangements for the child’s benefit and through its agents often polices the parents’ compliance. In contrast, in custody disputes in divorce there is no finding of parental incompetence, and within very broad limits the court is likely to endorse a settlement reached by the parents whether or not it is optimal for the child (Weyrauch, Katz, & Olsen, 1994). Furthermore, whatever the court may order or whatever may be recommended to the parents, the court will not police compliance with its order unless the other parent actively complains of failure to comply. In making custody recommendations, evaluators should not accept parents’ reports of their intention to behave differently than they currently are
Bias and Its Sources 25
behaving because such promises are generally not enforceable. Although sometimes the outcome is positive, parents desiring custody often will describe plans that they are unlikely to carry out once an order is in place. An arrangement workable for both parents is much more likely to be followed than a plan that is complex, crafted to absolutely optimize some aspect of the child’s situation, or is scrupulously fair to each parent. Part of the custody evaluator’s work is to try to discover workable arrangements that minimize conflict between the parents and meet the child’s needs. BIAS AND ITS SOURCES Even though legal and mental health professionals have long been aware that examiner bias can result in problematic evaluation, an appreciation of the extent to which bias, usually bias that is outside of awareness, can impact evaluations is only now becoming clear. Over the past two decades studies of human decision processes, including the decisions of professionals, have revealed a range of cognitive factors that lead to ‘‘predictable irrationality’’ (Arieli, 2008) and shown that cognitive and social bias can profoundly impact critical decisions (Groopman, 2007). Social psychologists distinguish prejudice (an attitude) from discrimination (a pattern of behaviors that is often motivated by prejudice but may not be). One of the most important forms of bias in custody evaluations is the tendency to stick to a conclusion irrationally. Whether conscious or unconscious, confirmatory bias (like prejudice) can be difficult to identify and, so, difficult to address. Martindale (2005) distinguishes the internal processes referred to as confirmatory bias and a more readily detectable pattern of professional behavior that can effectively be addressed in the crossexamination of an expert. Confirmatory distortion refers to the process by which an evaluator, motivated to bolster a favored hypothesis, intentionally selects or skews interpretation of data. The way evaluators are selected may contribute to such distortion. Whether evaluators are selected by judges, litigants’ attorneys, or a panel of evaluators, they know that offering opinions that run counter to their selectors’ views may greatly reduce the likelihood of their being retained again, and so they feel pressured to provide evaluations that are consistent with the views of those who retain them. The resulting distortions of the evaluation process may range from truncating the evaluation meet a judge’s demand that litigants not be forced to pay too much to outright dishonesty about what a litigant said in an effort to help the litigant prevail. The recognition that retention in future cases is contingent on how pleased judges and attorneys are with the evaluations and that the degree to which the legal professionals are pleased with the work often depends on how
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well it conforms to their own view of the case puts enormous pressure on evaluators. Attempts to avoid evaluator bias by choosing a presumably neutral court-appointed expert in many cases simply shifts the situation from one in which the evaluator is pressed to please the court rather than the litigants’ attorneys. This is particularly problematic in the area of child custody evaluation, in which judges are often unaware of the bias they introduce through personal convictions and commonsense psychology that runs counter to research findings. Bias can also come from conflation of personal values with scientific knowledge. Especially among professionals who have decided to dedicate themselves to these issues, feelings tend to run high about how children should be raised, particularly in relationship with parents. Becoming aware of these biases and differentiating personal attitudes from scientifically based opinions is a well understood part of the work of mental health experts, and the extent to which the expert has done this work is an appropriate area of the court’s scrutiny. Emotional attitudes ranging from visions of the ideal family to personal religious convictions to racism, homophobia, and gender prejudices are extremely common in our society. Few custody evaluators or legal professionals are entirely free of attitudes that potentially threaten the objectivity of their work. However, although it is not a reasonable expectation that evaluators will be entirely free of such feelings, it is reasonable to expect that they are aware of them, understand how they might inappropriately interfere with the objectivity of evaluations, and take appropriate steps to avoid such interference. In the field of child custody, where knowledge is changing as the result of new research, an additional form of bias may lie in an inappropriate commitment to the ideas of revered teachers. When an expert relies too strongly on what was learned in graduate school, sometimes decades ago, the information provided to the court may be out of date but not recognized as such. For example, some of the most coherent, persuasive, and authoritative writing about child custody during the 1970s focused on the idea of protecting the child’s relationship with the ‘‘primary psychological parent’’ at the expense of almost all other concerns (Goldstein et al., 1975), an idea that has little empirical support. Yet a few evaluators hold on to it because of the enormous prestige it once enjoyed among their teachers. Similar problems may arise because a particular theory has become popular. Over the past three decades we have seen the pendulum swing in divorce courts from inattention to issues of sexual abuse, to a view that any allegation of abuse must be true, to the notion that such allegations frequently arise as the result of ‘‘parental alienation’’ and more recently to the belief that the child must be protected from the supposedly alienating parent. Vigorous presentations of various points of view on such matters
Bias and Its Sources 27
by experts in the field can lead evaluators and legal professionals to enthusiastically endorse ideas independent of their scientific merit. Dramatic and particularly memorable cases are another source of bias for both mental health and legal professionals. This is particularly true if they have bad outcomes. For example, in 1993 a 3-year-old child was returned to his psychotic mother by a Chicago judge. The mother subsequently killed the child. There was extensive newspaper coverage of the case. The tragedy resulted in the Chicago courts being much more cautious about placing children with psychiatrically ill parents, even though the actual risk to children in this situation had not changed. Many mental health and legal professionals bring memories of particularly vivid cases to ongoing evaluations, and these cases are likely to have an undue impact on their consideration of a current situation. A related effect is that recent experiences and information tend to be given undue weight in decisions. The most recent article an evaluator has read on a topic or the most recent argument a judge has heard is likely to produce bias in the direction of the new information that is disproportionate to its intrinsic merit. Bias that is based on cognitive distortions is more likely to be problematic in custody evaluations than conscious prejudices because the latter are better known, relatively easily addressed by the court, and understood to be a source of potential difficulty by most custody evaluators. Courts and evaluators are less familiar with cognitive distortions. There are no empirical studies on the frequency of various forms cognitive distortion or their impact in custody evaluations or decisions. Anecdotal information from work product reviewers suggests that confirmatory bias, an inclination of evaluators to seek information that will confirm an initial hypothesis and a disinclination to seek disconfirming information, is common. Several well-documented psychological dynamics function either to elicit or to support confirmatory bias (Beattie & Baron, 1988; Martindale, 2004; Skov & Sherman, 1986; Snyder & Swann, 1978). COGNITIVE DISSONANCE Information that supports one’s current impressions is gratifying. Information that calls them into question generates discomfort (Brehm & Cohen, 1962; Elliot & Devine, 1994; Festinger, 1957; Festinger & Carlsmith, 1959; Festinger, Riecken, & Schachter, 1956; Steele, Spencer, & Lynch, 1993; Wicklund & Brehm, 1976). The extent to which individuals will distort their perception of reality and make further investments in positions that have been disproved to avoid admitting to themselves that they have made a significant mistake has been shown to be truly astounding. Festinger’s initial study, for example,
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involved a cult whose members had been urged to give up their worldly goods in anticipation of the predicted end of the world on a certain date. The uneventful passing of the date not only failed to disabuse cult members of their beliefs (a new date was set) but led to further commitment to the cult roughly in proportion to the amount they had already given away. Evaluators are, of course, subject to these psychological forces and like the cult members are likely to pour resources into maintaining a belief in proportion to the resources they have already committed to that belief. Evaluators who find themselves building a case, putting effort into proving a point, or simply putting disproportionate time into investigating a particular aspect of a situation should wonder if cognitive dissonance is in action. An important source of potential cognitive dissonance arises in custody evaluations when the examiner is asked to give a preliminary report on some aspect of the case. This sets up a situation in which the examiner will be pressed by cognitive dissonance to conform the ultimate report to the preliminary report and so reduces the examiner’s objectivity. SUGGESTIBILITY Another reason that evaluators tend to confirm their own hypotheses is that once an idea takes hold people tend to better remember data that support it than data that disconfirm it. They also, without realizing they are doing so, tend to collect confirming data. In a study by Strohmer, Shivy, and Chiodo (1990), counselors were asked to consider a particular clinical hypothesis and, in doing so, to reflect on a narrative report they had read a week earlier. The counselors recalled more confirmatory information than disconfirmatory information even though the report contained more disconfirmatory information. In a second study by the same investigators, counselors were asked to consider a particular clinical hypothesis and, using a narrative report available to them as they contemplated the hypothesis, to list ‘‘confirmatory and disconfirmatory pieces of information’’ (p. 469). More confirmatory than disconfirmatory pieces of information were listed even though the narrative report contained more pieces of disconfirmatory information. It should be emphasized that the hypothesis was offered by the researchers (not a peer, supervisor, or more experienced colleague), so the subjects were not merely complying with authority. Haverkamp (1993, p. 313) found that when hypotheses are selfgenerated there is a significant risk, regardless of the professional experience of the subjects, that ‘‘information relevant to alternative hypotheses will not be elicited.’’ Her findings differed from Strohmer et al.’s in that she did not find evidence of confirmatory bias when hypotheses were client-initiated.
Bias and Its Sources 29
In their discussion of confirmatory bias, Klayman and Ha (1987) have hypothesized a ‘‘positive test strategy’’—a tendency to pose questions the answers to which are more likely to yield confirmatory than disconfirmatory responses. An example: Parent A alleges that Parent B is an ‘‘angry person.’’ With this information in hand the custody evaluator asks Parent B about anger. Hypothetical situations are presented in which anger would be more likely to occur than not. The questions are posed in a way that does not invite a distinction between the internal emotional anger and the overt expression of anger. Furthermore, the questions are about situations whose connection to parenting is tenuous. In other words, the questions are framed in a manner that is likely to support the conclusion that Parent B is indeed an ‘‘angry person.’’ As our example suggests, follow-up questions designed to elicit more information about matters that have come up in the evaluation are points of particular vulnerability in which suggestion is likely to come into play. Close attention to how follow-up questions are framed often provides information about this form of bias. It is a good practice, except in instances where it is patently inappropriate, to ask both parties identical follow-up questions even though the question may have initially arisen with regard to only one party. For example, if Parent C alleges that Parent D is a heavy drinker, though it is certainly wise to get a thorough history of alcohol intake by Parent D, it is also wise to get the same information about Parent C using identical language unless it is patently clear that such questions will provide no new information. The notion that adults are susceptible to suggestion is often met with skepticism. The decision-making power that we give to others is best understood by examining the dynamic in its extreme form: obedience. Milgram’s (1963) classic, and terrifying, study of obedience showed that many students at an elite university would comply with researchers’ orders to apply what they believed to be a potentially lethal electric shock to their fellow study subjects. Even when Milgram moved his study from the prestigious setting of the Yale campus to a dilapidated warehouse in the industrial section of Bridgeport, Connecticut, and when the authority figure firmly reciting verbal prods was an assistant whose only symbol of authority was a white lab coat, obedience remained high. Milgram’s work on the extreme power of obedience to authority has been more than confirmed by almost 50 years of additional investigation (Zimbardo, 2007). Custody evaluations can easily devolve into something close to police interrogations, and evaluators should be aware that if they too vigorously press for desired information (i.e., information that supports their hypotheses) they are at risk of eliciting false confessions (Gudjonsson, 2003).
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The suggestion to which an evaluator responds need not come from an authority figure. Likeable litigants, credible-seeming litigants, and even the litigant who has most recently been seen by the evaluator may influence the evaluator through suggestion. An example: Mrs. A. is the first to be seen by the evaluator, and during the initial session she expresses concern that her wealthy husband ‘‘may have been coached for this.’’ Early in the initial session with the husband, the evaluator poses several hypothetical questions to which the husband provided well-reasoned responses. A notation appears in the margin of the evaluator’s contemporaneously taken notes: ‘‘Coached!!!’’ In all likelihood, whatever additional information the husband provided was assessed in light of the supposed coaching. Responses that would ordinarily be seen as desirable were interpreted as evidence against the husband’s suitability as a parent because they were taken as evidence that he was coached. Anchoring refers to a perceptual and cognitive dynamic in which information that may be neither pertinent nor true is treated as salient. Information that is perceptually and cognitively prominent functions as a reference point (an anchor) and is used in processing other information. A common form of anchoring is to place an expensive item on a sales floor, thus creating an anchor price, and to offer other lower priced items near it so that the lower priced items appear to be inexpensive. The shift in attention caused by an anchor is called ‘‘priming’’ (Arkes, 1981). In a study conducted by Chapman and Johnson (1999), subjects considering the features of various apartments were more attentive to positive features when they had first been told that the rental fee was high and were more attentive to negative features when they had been informed that the rental fee was low. This finding is consistent with cognitive dissonance theory. We like things to make sense. It makes sense that an expensive apartment has many positive features and few negative features. It makes sense that an inexpensive apartment has many negative features and few positive features. If two pieces of a puzzle fail to fit but one of those pieces is malleable, it is that piece that we will endeavor to manipulate. The price of each apartment is a given; perceptions of the positive and negative features of each apartment, however, can be shaped to fit what is given. Through the operation of selective attention, perceptions of the apartments are constrained by the anchor: the rental fee. Northcraft and Neale (1987) conducted a similar study; they included real estate appraisers among their subjects and asked that a house with a predetermined listing price (the anchor) be appraised. Even the professional appraisers were affected in their judgments by the stated listing price. In some jurisdictions custody matters involving never-married couples are heard in different courts from those involving divorce. The very fact of appearing in one or the other court has an anchoring effect on many evaluators and judges in that it is easy to assume
Bias and Its Sources 31
that litigants in the never-married court are all less responsible than those in the divorce court. Judges are not immune to anchoring. A group of judges was randomly assigned to a control group or a group that was given an anchor. Both groups were given a vignette of a civil case in which a person was severely injured by a negligent driver and told they had presided over an unsuccessful settlement conference. The control group was told that the plaintiff ‘‘was intent upon collecting a significant monetary payment.’’ The anchor group was told that the plaintiff’s lawyer had demanded $10 million. Judges in both groups were asked what compensatory damages they would award the plaintiff. Judges in the control group awarded a mean of $808,000, judges in the anchor group $2,210,000. The study’s authors concluded that anchoring is an important factor in judicial decision making and that who goes first may affect how judges process testimony (Guthrie, Rachlinski, & Wistrich, 2007). Though the impact of confirmatory bias on custody evaluations has not been studied directly, even methodologically sophisticated research is pervaded by confirmatory bias (Greenwald, Pratkanis, Leippe, & Baumgartner, 1986). Greenwald and Pratkanis (1988, p. 575) conclude that when people become ego-involved, they ‘‘persevere with data-collection variations until support for the theory is obtained.’’ Confidence Levels and Credibility Evaluators whose work has been contaminated by confirmatory bias may express a high level of confidence in their own opinions and so be quite persuasive. The Specialty Guidelines for Forensic Psychologists states that evaluators should examine ‘‘the issue at hand from all reasonable perspectives, actively seeking information that will differentially test rival hypotheses’’ (Committee on Ethical Guidelines for Forensic Psychologists, 1991, p. 661). When faced with competing hypotheses, each of which is supported to some extent by the data that have been collected, the critical thinker is unable to achieve complete certainty (Koriat, Lichtenstein, & Fischhoff, 1980). When called on to support an opinion that has been offered, the expert who has never seriously contemplated more than one hypothesis engages in a confirmatory mental search process. Data supportive of the focal hypothesis readily come to mind; nonsupportive data are not encountered (Koehler, Brenner, & Griffin, 2002, p. 693). Primacy and Information Integration When an opinion is formulated from conflicting information, information received earlier has more impact than information received later (Crano, 1977). Applied to custody evaluations this means that there is a natural (albeit unintentional) tendency for the first person interviewed to have more influence on the evaluator’s opinions than the person interviewed second.
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This suggests that an initial joint interview, where feasible, is likely to create less bias than interviewing parents in sequence. Bow and Quinnell (2001) found that among psychologist custody evaluators 31% conducted the initial session with both parents. If an evaluator meets with one parent before the other, the evaluator begins to construct a mental framework within which information is placed based on statements made by the first parent. Though first impressions are not cast in stone, they are far stronger than people are aware. Belsky and Gilovich (1999) found that if potential stock buyers are provided with a mix of information about a company, the decision to purchase or not to purchase the company’s stock is significantly influenced by the sequence in which information is presented. Premature Hypothesis Generation At what point in the evaluative process do evaluators formulate their initial hypotheses? No current survey data shed light on this issue. Three decades ago, Sandifer, Hordern, and Green (1970) reported that psychiatrists formulated their initial diagnostic hypotheses only minutes into their intake interviews. Reviews of custody evaluators’ contemporaneously taken notes suggest that evaluators occasionally record hypotheses in the early pages of their first session notes and, at times, record what can only be described as premature conclusions. An example: Examining contemporaneously taken notes, a reviewer notices ‘‘LLPF’’ in the margin next to some statements made by the mother during the initial joint interview. At trial, the evaluator explained that ‘‘LLPF’’ is an abbreviation for ‘‘Liar, liar, pants on fire.’’ That is, early in her first session, the evaluator concluded that the mother is a liar. (The notation is particularly striking because the father, who was present during the interview, neither refuted nor modified the statement.) Evaluators’ early conclusions about credibility based on their supposed ability to differentiate forthright from deceitful litigants is particularly interesting in light of research showing that mental health professionals are no better at lie detecting than anyone else and that, in general, 20 years of research has found that people are simply not able to detect when someone is lying—there are no reliable verbal or nonverbal cues to deception. Individuals’ confidence in their ability to detect deception is unrelated to their actual accuracy in doing so (DePaulo, Charlton, Cooper, Lindsay, & Muhlenbruck, 1997). Experience does not necessarily heighten one’s ability to detect deception (Ekman & O’Sullivan, 1991). The Investigative Component Information provided by third parties (collateral sources) and obtained through the review of records has become an integral part of custody evaluations (Austin, 2002). Ackerman and Ackerman (1997) found that approximately 28% of the evaluator’s time was spent on obtaining
Bias and Its Sources 33
information from documents, disinterested collateral sources, and other nonparties. However, standards and practices in collecting these data have yet to be well developed (Kirkland & Kirkland, 2001). Indiscriminate investigations (‘‘fishing expeditions’’) are ill advised and possibly unethical (because they create undue risk of harm with little likelihood that pertinent information will be unearthed). An evaluator cannot, for practical reasons, assure litigants that every document described by them as being of potential importance will be reviewed and that every collateral source identified by them as having useful information will be interviewed. Though lists of documents to be reviewed and lists of collaterals to be interviewed must sometimes be trimmed, the evaluator must take great care to avoid conducting a focused search for data supportive of a favored hypothesis. Similarly, evaluators should be aware that many collateral sources are highly biased or inaccurate even if they do not have a direct interest in the case. Teachers, physicians, and therapists are like everyone else in having their observations shaped by factors that may be irrelevant to the issues at hand. The quality of information obtained from third parties can be improved by asking for specific factual information. For example, a teacher’s impression that ‘‘Mr. Jones seems to have an firm emotional relationship to his child’’ is far less useful than her observation that ‘‘Mr. Jones has come to each available parent-teacher conference. At the last conference he asked about three specific grades the child had received and wanted to know what he could do to help the child do better.’’ Addressing Bias Bias and the threat of bias are inevitable aspects of custody evaluations, just as they are inevitable aspects of any research or decisionmaking process. The presence of bias and threats of bias do not in themselves negate the value of custody evaluations. However, it is the responsibility of the custody evaluator, as it is the responsibility of the researcher or decision maker, to be as aware as possible of the impact of bias on opinions and to work to address the impact of bias on evaluations. Several means of accessing bias are described here. Audio and Video Recording Among other advantages, recordings of interviews provide excellent opportunities to detect and address bias. Even the best notes condense interactions. An evaluator cannot write down aspects of the interaction of which the evaluator is unaware. Not only the actual words used to phrase a question (which are usually lost unless the interview is recorded) but the evaluator’s inflection and tone carry markers of bias. The evaluator’s facial expressions and body language are often out of the examiner’s awareness and virtually never recorded in the notes. Consider the question ‘‘You never used illicit drugs, right?’’ Depending on the examiner’s tone, inflection, facial expression, and body movement, these words could
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indicate a friendly inquiry whose anticipated answer is affirmative or a hostile, skeptical interrogation designed to elicit a negative response. Not only would these two questions have different impacts on the litigant, but they would also indicate very different biases in the evaluator. These differences would be discernible only through adequate recording. Contemporaneous Notes Martindale (2001, p. 488) observes, ‘‘The search for indications of bias is most efficiently begun by comparing the contents of an evaluator’s contemporaneously taken notes with the evaluator’s description of factors supporting the opinion(s) offered.’’ Confirmatory bias or distortion is most easily demonstrated where there is a pattern of discrepancies between the information in contemporaneous notes and the information in the advisory report. Where parenting strengths in the nonfavored parent are described in the contemporaneous notes but not mentioned in the advisory report, either bias or outright distortion is at work. The same is true when deficiencies in the favored parent are noted but not alluded to in the report. Document Inspection Many evaluators retain documents they have relied on in forming opinions. Some evaluators, however, feel no obligation to retain items that have been considered but not relied on. In law, considering something involves examining it and deliberating about it (Nolan & Nolan-Haley, 1990, p. 306). The question of whether a document was not relied on because of bias can be answered only if the documents remain available. Assessment Data Review Evaluators whose neutrality has not been contaminated by bias ‘‘describe the strengths and limitations of test results and interpretations’’ (American Psychological Association, 2002, p. 1071), even if their profession is not psychology. Similarly, when factors come into play that might affect their ‘‘judgments or reduce the accuracy of their interpretations . . . , they indicate any significant limitations of their interpretations’’ (p. 1072). It is difficult to imagine a situation in which there would not be any limitations worthy of mention in a custody evaluation. The absence of such a statement suggests either that the evaluator is not knowledgeable enough about bias to address it or that an attempt is being made to persuade rather than inform. In either case it points to a problem in the management of bias by the evaluator. THE GOALS AND STANDARDS OF EVALUATION In their analysis of the best interest standard, Goldstein et al. (1975) observe that it is unrealistic to attempt to make recommendations that are optimal for the child and recommend instead that the evaluator attempt to find ‘‘the least
The Goals and Standards of Evaluation 35
detrimental alternative.’’ Although some of the recommendations based on this formulation now appear mistaken and the concept has not found wide acceptance, a central problem to which they pointed remains of concern. It is generally not possible to frame a scientific opinion regarding a particular child in such a way that definitively solves all the problems associated with a custody decision. Almost always, any custody decision will have adverse as well as desirable affects. Very often, the scientific evaluator will not be able to achieve the degree of certainty that all involved wish we had in making decisions that impact children as profoundly as custody decisions do. Far from implying that the opinions of scientific custody evaluators are useless, this means that their opinions can be relied on to be accurate and sound as far as they go. Courts and others who rely on these opinions may be less comfortable than they would be with more definitive statements, but they will at least have the advantage of accurate information on which to reach conclusions. Although we know of no studies on the matter, it is our impression that custody evaluators are rarely hired guns in the sense of deliberately making recommendations favorable to the party that has retained them.7 However, many experts believe it is useful to advocate for the opinion they have come to; sometimes they believe doing so is to advocate for the child. Such experts misunderstand their role in the legal process: providing the best information possible to those who must make custody decisions. The expert’s job is to communicate accurately and informatively in a way that is useful to the court and other decision makers. To obtain reliable testimony courts must tolerate the distress of decision making and the ambiguity that is part of the reality of complex human psychology. When courts displace their judicial responsibility for legal decision making onto enthusiastic experts, they create a situation in which the experts may fill this role at the expense of providing accurate information. Increasingly in the behavioral sciences, researchers have recognized the value of framing findings in terms of specific risks and probabilities. In socalled second-generation studies of the risk of violence, investigators have tried to make quantitative predictions of the likelihood of an individual’s being violent in various circumstances, rather than attempting the essentially impossible task of saying that the person will, in fact, be violent. Following such a process, the expert’s goal should be to reach the most reliable and valid opinion possible under the circumstances and to be able to describe how reliable and valid that opinion is. Rarely can the expert accurately forecast exactly what will or will not happen. (When an expert gives an opinion in this form, it almost always means that the opinion is inaccurate, has been poorly expressed, or responds to a situation where the outcome is so obvious that an expert opinion is not needed.) Experts should, however, be able to say whether the information changes the likelihood of some outcome and in some
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instances may be able to quantify that conclusion. In all instances, experts should be prepared to describe the reliability and validity of their own opinions. RELEVANCE AND HELPFULNESS Custody evaluations are valuable only insofar as they are admissible in court. Evaluators should be aware of the criteria used by the courts to ensure that their reports meet these criteria. Courts apply two specific tests of relevance and helpfulness in determining the admissibility of expert testimony. Most state evidence codes adopt or closely resemble the Federal Rules of Evidence (2006). Some states continue to use the Frye rule or variations on it. The Federal Rules of Evidence will form the basis of our discussion, but readers should be aware that rules may differ substantially from jurisdiction to jurisdiction and even from court to court. Rules 401, 402, 403, and 702 of the Federal Rules of Evidence are the most important for custody evaluators. Rule 401, Definition of ‘‘Relevant Evidence,’’ states, ‘‘‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’’ With special exceptions, relevant evidence is generally admissible, and irrelevant evidence is not admissible. Even when evidence is relevant, Rule 403 states, ‘‘evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’’ Although courts seldom exclude reports for providing too much information, some evaluators include information that is much more prejudicial than relevant. For example, although sexual behavior is relevant to some psychiatric diagnoses, evaluators have been known to include lurid details of sexual conduct of litigants in their reports. Such details can be prejudicial and are sometimes given far more weight than their relevance would support. Test results, as discussed earlier, when extensively quoted may be prejudicial if they seem to attribute many psychiatric problems to a litigant even though they in fact add very little to the actual evaluation. Rule 702 addresses testimony by experts: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles
Relevance and Helpfulness 37
and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The issue of expert testimony has been hotly debated by both the legal and psychological communities (Goodman-Delahunty, 1997; Kraus & Sales, 1999, Shuman & Sales, 1999). One issue is who can best decide what are and are not reliable scientific procedures and therefore potentially admissible evidence. Before 1923 courts simply reviewed the proposed experts’ credentials and the likelihood that their testimony would be helpful. From 1923 through 1992, they based decisions about admissibility on the General Acceptance Test (often called the Frye test) described in Frye v. U.S. (1923). In that case, a federal appellate court wrote: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (p. 1014)
The phrase ‘‘the particular field in which it belongs’’ has, in the case of the sciences, generally been understood to be the relevant scientific community. In 1962 the court tackled an important issue for psychologists. Rather than limiting the definition of expert based on credentials such as a medical degree, the court determined that what was more important was whether an opinion based on a reliable scientific procedure would be likely to help the judge or jury. There was less emphasis on the status of the witness, that is, physician versus social worker, and more emphasis on the helpfulness of the information. The Jenkins court (Jenkins v. U.S., 1962, p. 643) held, ‘‘The test, then, is whether the opinion offered will be likely to aid the trier in the search for the truth.’’ In 1993 the U.S. Supreme Court created a storm of change with its ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc. In an attempt to rein in the use of what it called ‘‘junk science’’ in litigation, the Court provided a set of flexible criteria to use in determining the admissibility of scientific evidence. It also assigned to the trial court judge the responsibility of gatekeeping. Rather than relying on the relevant scientific community to determine what a reliable scientific procedure is, judges were to make decisions about the scientific value of a technique. These flexible guidelines have come to be known as the Daubert standard. Daubert creates a set of flexible guidelines, not a standard of specific factors to be assessed by the judge.
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The Daubert Court defined scientific knowledge as follows: ‘‘The adjective ‘scientific’ implies a grounding in the methods and procedures of science. Similarly, the word ‘knowledge’ connotes more than subjective belief or unsupported speculation’’ (1993, p. 590). But to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation, that is, ‘‘good grounds,’’ based on what is known. In short, the requirement that an expert’s testimony pertain to scientific knowledge establishes a standard of evidentiary reliability (p. 590). Although Daubert placed courts in the position of gatekeepers of expert testimony, it provided only a flexible set of guidelines the trial that courts could (as opposed to should) use: Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate. (1993, pp. 592–593)
The following guidelines were offered by the Court to be used in a trial judge’s gatekeeping efforts. TESTABILITY
OR
FALSIFIABILITY
Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact is whether it can be (and has been) tested. ‘‘Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry’’ (Daubert, 1993, p. 593).8 PEER REVIEW Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances well-grounded
Relevance and Helpfulness 39
but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of ‘‘good science,’’ in part because it increases the likelihood that substantive flaws in methodology will be detected (Daubert, 1993, p. 593). Publication (or lack of such publication) in a peer-reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised (p. 594). ERROR RATE
AND
STANDARDS
OF
CONTROL
In addition, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation (Daubert, 1993, p. 594). GENERAL ACCEPTANCE Finally, ‘‘general acceptance’’ still has a bearing on the inquiry. A ‘‘reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community’’ (Daubert, 1993, p. 594). Widespread acceptance can be an important factor in ruling particular evidence admissible, and ‘‘a known technique which has been able to attract only minimal support within the community’’ may properly be viewed with skepticism (Daubert, 1993, p. 594). The Court wrote: The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate. (Daubert, 1993, pp. 594–595)
In 1997 the U.S. Supreme Court heard General Electric Co. v. Joiner and expanded the Daubert decision, noting the following: Conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit9 of the
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expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. (p. 146)
In other words, there must be something more than just the expert’s word tying the data to the opinion. The focus of the Daubert Court was on scientific knowledge because that was the nature of the testimony offered into evidence. This is clarified in a footnote to the opinion and sets the stage for the next case in what has been called the Daubert trilogy: ‘‘Rule 702 also applies to ‘technical, or other specialized knowledge.’ Our discussion is limited to the scientific context because that is the nature of the expertise offered here’’ (Daubert, 1993, p. 590). In 1999 the U.S. Supreme Court further expanded the Daubert decision to include all expert testimony, not just testimony based on scientific knowledge. In Kumho Tire Co. v. Carmichael (1999) the Court noted the following: The Daubert ‘‘gatekeeping’’ obligation applies not only to ‘‘scientific’’ testimony, but to all expert testimony. Rule 702 does not distinguish between ‘‘scientific’’ knowledge and ‘‘technical’’ or ‘‘other specialized’’ knowledge, but makes clear that any such knowledge might become the subject of expert testimony. It is the Rule’s word ‘‘knowledge,’’ not the words (like ‘‘scientific’’) that modify that word, that establishes a standard of evidentiary reliability. Daubert referred only to ‘‘scientific’’ knowledge because that was the nature of the expertise there at issue. (p. 138) We conclude that Daubert’s general holding—setting forth the trial judge’s general ‘‘gatekeeping’’ obligation—applies not only to testimony based on ‘‘scientific’’ knowledge, but also to testimony based on ‘‘technical’’ and ‘‘other specialized’’ knowledge. We also conclude that a trial court may [emphasis added] consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability. But, as the court stated in Daubert, the test of reliability is ‘‘flexible,’’ and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. (p. 141)
In other words, where the evidence code says ‘‘if scientific, technical, or other specialized knowledge will assist the trier of fact,’’ the key word is ‘‘knowledge,’’ and not ‘‘scientific’’ (Shuman & Sales, 1999). Ultimately, regardless of the type of testimony, it is the methodology underlying an expert’s opinion that must be sound, reliable, and generally accepted, not the opinion itself. The Daubert, Joiner, and Kumho cases were clarifications of the
Notes 41
Federal Rules of Evidence, and therefore did not apply directly to the states. Many states, however, have adopted the Daubert standard. Several states have continued their reliance on the Frye test, or an expanded version of the Frye test. California, for example, has the Kelly-Frye test (People v. Kelly, 1976) and Florida has the Ramirez-Frye test (Ramirez v. State, 1995). Both of these states have expanded the Frye test to determine if the methodology underlying the expert’s opinion is reliable and valid and helpful to the court.
CONCLUSION Custody evaluation can incorporate empirical information to reach credible conclusions. This involves three overlapping steps: the collection of information about the particular situation, the evaluation of pertinent published reports, and the informed use of published reports in reaching conclusions. The outcome, if the process is conducted properly, may not necessarily be clear or definitive, but under the circumstances it is the best information to aid those making decisions.
NOTES 1. The pursuit of accurate and adequately recorded information is time consuming and expensive. It also often produces more complex findings than more superficial investigations. When the evaluation becomes part of a litigation process, this means that the scientific evaluator may appear to be at a disadvantage. Such an evaluator will be more explicit about the limitations of the evaluation and will acknowledge that certain investigations were not performed (or recorded). He or she will acknowledge lack of funds or time, will engage in more extensive and therefore more expensive evaluations whose cost may aid in suggesting that the expert is a hired gun, and at the end may come to conclusions that are less black and white than a less systematic investigator. Depending on the sophistication of the trier of fact, the scientifically oriented evaluator may thus appear at a distinct disadvantage as an expert witness compared to the less adequate examiner. As the courts move more in the direction of excluding junk science and develop increasingly sophisticated appreciation of the nature of scientific thinking, these apparent weakness are likely to turn into strengths. Scientifically oriented experts must be prepared to explain why their methods may appear less impressive than the false certainty of less careful evaluators. 2. Much research and scientific writing results from the collaboration of a seasoned researcher with a more junior colleague. The senior investigator, in essence, certifies the quality of the junior’s research and is regarded as responsible for the result. 3. This matter is introduced here only as an example. Contemporary psychoanalysts would answer this criticism in two ways. Some would point out that the
42
4.
5.
6.
7.
8.
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actual theory predicts the presence of certain observable residues of the Oedipal situation so that the theory is actually falsifiable (Edelson, 1984). Others would say that psychoanalysis is not a science in the same sense as the physical sciences and makes a different kind of claim to truth based on an enriched understanding of the psychological world rather than testable propositions about it (Cohler & Galatzer-Levy, 2007). Even when those who construct tests carefully describe what they do and do not measure, it is easy to misconstrue their significance. Although intelligence tests were largely constructed to predict academic performance and although they have been shown to usefully measure a range of psychological functions, they are not adequate measures of overall psychological capacity or ability to function. Yet they are commonly treated as such not only by laypeople but also by professionals, often with negative consequences (see, e.g., S. Gould, 1981). The applications of psychological tests to individuals are discussed at greater length in the chapter on psychological testing (Chapter 4). It is worth noting here that the application of psychological tests that lack content validity may lead to particular problems in assessing psychological function. One of the authors of this chapter recently had the experience, in two consecutive evaluations of Minnesota Multiphasic Personality Inventory II test results suggesting that the subjects were psychotic and delusional. Their scores in these areas had been elevated because both answered affirmatively that their pictures had appeared on magazine covers. In fact, both individuals had been depicted on the covers of national magazines. A certain test-taking set or stance is more likely to distort results when subjects strive so hard to be honest that they overinterpret self-report test items, for example, endorsing, ‘‘I have difficulty falling asleep’’ because they occasionally—not usually or often—have difficulty doing so. We use the ‘‘best interest’’ criterion here as an example both because it is widely accepted in the United States and because it points to the complexity of behavioral science opinions. The same logic would apply to virtually any question that might be posed to the behavioral scientist in this context, even though the issue at hand might not be the child’s best interest. The impression that so-called hired guns are common arises from several sources. Most evaluators who do substantial work in this area develop reputations regarding the kind of opinions they are likely to render, so that attorneys are likely to try to select evaluators who agree with their client’s interests. When an evaluator comes to a conclusion contrary to the retaining attorney’s position, the case often settles without trial or the expert is not called to testify; thus at trial it usually appears that experts always agree with those who retain them. Finally, there are unethical individuals who, for a fee, will testify to almost anything. They stick out in memory because their behavior is often so egregious. In his dissent from this opinion (92–102, William Daubert et ux., etc., et al., Petitioners v. Merrell Dow Pharmaceutical Inc.) William Rehnquist observed, ‘‘I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its ‘falsifiability,’ and I suspect some of them will be, too.’’ Indeed the very
References 43
language of the Supreme Court’s decision suggests that he was correct because ‘‘falsifiability’’ as used in studies of the philosophy of science is not something that can itself be tested, but is the property that a proposition can, in theory, be shown to be untrue by empirical means. 9. The Latin phrase ipse dixit means ‘‘he himself said it; an assertion by one whose sole authority for it is the fact that he himself said it’’ (Gifis, 1991, p. 252).
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CHAPTER 2
Legal and Ethical Issues in Child Custody Evaluations DAVID A. MARTINDALE and NORMAN M. SHERESKY
D
and access cases are among the most difficult that courts have to make. Over the decades they have struggled with the development of procedures for achieving the elusive but universal goal of acting ‘‘in the best interests’’ of children. Because what is in the best interests of children, even as a concept, depends on ever shifting notions of law and equity and equally shifting psychiatric, psychological, and scientific principles, doing justice is hard work. To make matters worse, there are differing rules among the states whose courts must decide litigated issues of custody. Although many states have adopted the Federal Rules of Evidence or similar rules, their interpretation differs from state to state. Custody decisions are increasingly influenced by the advisory input of forensic evaluators—psychologists, psychiatrists, and social workers. The role, function, limits, and usefulness of custody evaluators’ work derive from the law and rules of the jurisdictions in which they are appointed and from the ethics and standards of their professions. Custody evaluators should be (but are not always) held to the same standard as for any expert witness: An opinion may be offered by a witness only if it pertains to matters that are beyond the scope of what the finder of fact (in custody cases, usually the judge) can determine without assistance. The expertise that entitles witnesses to proffer opinions, rather than testify only to facts, is generally defined as a qualification by reason of ‘‘knowledge, skill, experience, training or education’’ (see, for example, Rule 702 of the Federal Rules of Evidence [2006]). In custody cases, however, the American Psychological Association’s (APA, 1994, Guideline 7) Guidelines for Child Custody Evaluations in Divorce Proceedings urges treating practitioners to ECISIONS IN CUSTODY
49
50 LEGAL
AND
ETHICAL ISSUES
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‘‘decline the role of an expert witness who gives a professional opinion regarding custody and visitation issues.’’1 With increasing frequency, the services of custody evaluators are being utilized in contested cases, and, in many cases, their input is relied on almost to the exclusion of other evidence. Tippins (2003, p. 3) has warned that to the extent that decisions in custody and access matters have been overly influenced by the opinions of experts, such decisions ‘‘scientifically . . . stand on feet of clay.’’ The danger of undue reliance on evaluators has been repeatedly discussed. For example, Chief Judge Breitel cautioned that courts often depend on the ‘‘auxiliary services of psychiatrists, psychologists, and trained social workers . . . but it may be an evil when the dependence is too obsequious or routine or the experts too casual’’ (Matter of Bennett v. Jeffreys, 1976, p. 821). Federal Rule of Evidence 702 places on experts an ‘‘obligation to assist the trier of fact.’’ This universally recognized requirement of statutory and case law leaves open what constitutes ‘‘assistance’’ or ‘‘helpfulness.’’
HELPFULNESS, ASSISTANCE, AND EXPERTISE DEFINING HELPFULNESS Even in allegedly simpler times, when the anticipated helpfulness of proffered evidence was assessed by examining ‘‘general acceptance,’’ the frequency with which certain methods were employed was often used as a means by which to assess their general acceptance. When Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993, p. 2786) prompted the U.S. Supreme Court to reinterpret Federal Rule of Evidence 702, the Court ruled that trial judges must assess the methodology that underlies the proffered testimony and determine whether it is ‘‘scientifically valid . . . and can be applied to the facts in issue.’’ The Court pointed out that the focus of gatekeeping efforts ‘‘must be solely on principles and methodology, not on the conclusions that they generate’’ (p. 2797). In Daubert the Supreme Court described Federal Rule of Evidence 702 as setting forth a ‘‘helpfulness standard’’ (p. 2796). Subsequently, on April 17, 2000, Rule 702 was amended to declare that expert testimony must be ‘‘based upon sufficient facts or data,’’ must be ‘‘the product of reliable principles and methods,’’ and must be offered by a witness who has ‘‘applied the principles and methods reliably to the facts of the case.’’ Focusing on methodology is a far better way to gauge potential helpfulness than surveying frequency of use. The popularity of certain instruments is more a tribute to the marketing acumen of those who sell the instruments than to the psychometric expertise of those who design them. Lilienfeld, Lynn, and Lohr (2003, p. 3) remind us that ‘‘a basic tenet of science is that the burden of
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proof always falls squarely on the claimant, not the critic. Consequently, it is up to the proponents of these techniques to demonstrate that they work.’’ The quality of evidence put before the courts is likely to improve if proponents are required to demonstrate that assessment methods do what they are intended to do. It is not uncommon to see the Daubert criteria referred to as ‘‘rules.’’ They are not. By referring to the Daubert criteria as ‘‘rules,’’ writers are suggesting that there is clarity when, in fact, confusion reigns. It is often forgotten that in articulating the Daubert criteria, the Court declared, ‘‘We do not presume to set out a definitive checklist or test. But some general observations are appropriate’’ (1993, p. 593). In addition to confusion concerning the intended flexibility of the criteria, there is perplexity concerning the meaning of the criteria. In Kumho Tire Co., Ltd. v. Carmichael (1999, p. 1167), the U.S. Supreme Court made it clear that the applicability of the Daubert criteria ‘‘to a particular case is a matter that the law grants the trial judge broad latitude to determine.’’ Decisions by trial courts concerning the admissibility of expert testimony are typically afforded great deference (Sales & Shuman, 2005). It should come as no surprise, then, that ‘‘behavioral and social science evidence that was admitted before Daubert has been admitted after Daubert’’ (Shuman & Sales, 1999, p. 5). NONSCIENTIFIC ASSISTANCE There can be little doubt that opinions for which there is no empirical support are often admitted into evidence. Interestingly, some evaluators believe that this is as it should be. Calloway (2002, p. 216), for example, has opined that neither ‘‘clinical intuition [nor] hunches . . . [should be] castigated as inherently inferior.’’ Tippins and Wittmann (2005) have forcefully advanced the position that lives are dramatically changed by the judicial decisions that are handed down in custody cases and have urged judges to require that the experts whose input guides them support their inferences with specific empirical evidence or explain their inability to do so. We endorse their position. Bala (2005, p. 554) has opined that ‘‘evaluators may not be ‘experts,’ but they can express best interests opinions.’’ Specifically, Bala has urged family courts not to ‘‘apply the ‘expert evidence’ standard when deciding how to use the evidence of a court-appointed evaluator but, rather [to] use a more flexible standard that takes into account the family law context’’ (p. 554). In Tippins’s (e-mail communication, January 24, 2007) opinion, not everything that judges view as helpful and might wish to hear or read is admissible, nor should it be. It is his position that ‘‘if our society wishes judicial decisions in matters such
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as custody and access to be guided by ‘clinical experience and intuition,’ evidentiary safeguards and due process would need to be shredded, because current law does not permit it.’’
DEFINING EXPERTISE Neither the scope nor the quality of the input offered by an expert to a court can be judged by the scope and quality of the expert’s education and training: The defining attributes of an expert opinion relate not to the credentials held by the individual whose fingers type the words or from whose mouth the words flow; rather, the requisite characteristics relate to the procedures that were employed in formulating the opinion and the body of knowledge that forms the foundation upon which those procedures were developed. (Martindale, 2001, p. 503)
That is not to say that lack of credentials is insignificant in custody proceedings. AN ESTABLISHED BASE
OF
KNOWLEDGE
A ‘‘body of knowledge’’ is knowledge that has been developed by the field in which the evaluator claims expertise: With only rare exceptions, the information imparted by custody experts in their reports and in their testimony is not information that they themselves have uncovered in their own research. An expert opinion rests on the firm foundation of specialized knowledge that has been slowly and carefully developed over many years by members of the profession with which the expert is affiliated. Experts are, in reality, perpetual students. Good experts devour the professional literature, critically examine published research, and draw upon the knowledge base of an entire profession each time they conduct an evaluation. The task of the skilled evaluator is to decide what research is applicable to the specific family that is the focus of the court’s attention, to apply the research, and to explain how the cited research sheds light on the particular issues in dispute. (Gould & Martindale, in press)
Tippins and Wittmann (2005) have called attention to the fact that no matter how well qualified an expert may be, credentials are of little consequence if the information needed by the court is not contained within the knowledge base of the field in which the expert’s credentials have been earned. Experts who see no need to draw on the knowledge base of their
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respective fields and who confidently express opinions based solely on their own experience, skills, or insight are using smoke and mirrors and a large curtain. In our view, custody evaluators must effectively demonstrate that their opinions rest on a ‘‘body of known facts or [on] any body of ideas inferred from such facts’’ (Daubert, 1993, p. 1317.) It is for this reason that we urge evaluators to include references to relevant peer-reviewed publications in their advisory reports. Some evaluators refuse to make qualitative distinctions between opinions formulated on the basis of empirically supportable data and those formulated in other ways. Calloway (2002, p. 216) has written, ‘‘When forensic rigor is overly applied . . . clinical intuition, hunches, expertise, methods, and techniques are castigated as inherently inferior.’’ We believe they should be. CONNECTING
THE
DOTS
In addition to drawing on a ‘‘body of known facts or [on] any body of ideas inferred from such facts,’’ evaluators must articulate the manner in which the referenced facts bear on the issues being adjudicated. There is a postscript to the Daubert case with which far too many mental health professionals are unfamiliar, and it bears on the defining characteristics of an expert opinion. The Daubert case was returned to the 9th Circuit Court and, again, the scientific evidence proffered by the plaintiffs was rejected by the court (Daubert v. Merrell Dow Pharmaceuticals, Inc. (on remand), 1995). Judge Alex Kozinski, writing for the court, declared, ‘‘Something doesn’t become ‘scientific knowledge’ just because it’s uttered by a scientist’’ (pp. 1315–1316). The court’s task, Kozinski wrote, ‘‘is to analyze not what the experts say, but what basis they have for saying it’’ (p. 1316). This was not the first time that a respected jurist had emphasized the importance of experts articulating the bases for their opinions. In 1967 Judge David Bazelon, in his opinion in Washington v. United States, declared that the court was ‘‘deeply troubled by the persistent use of labels and by the paucity of meaningful information’’ presented by experts (p. 447). He added that in the current case, the experts had provided ‘‘only the conclusions without any explanation of . . . what facts . . . [were] uncovered, and why these facts led to the conclusions’’ (p. 447). HEARSAY Even before considering the quality of an expert’s opinions, a court must deal with the thicket of competing views on the quality of evidence it may hear
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offered to buttress an expert’s views. High on the list of legal issues presented in custody litigation is how to deal with opinion based neither on the personal knowledge of the expert nor on facts admitted into evidence. The trend is to permit experts to rely, at least in part, on evidence not personally known to them, ‘‘where the data relied upon is of a nature usually accepted in that field as reliable in forming an opinion, or on material which does not meet this test if it came from a person who on the trial is a witness subject to crossexamination’’ (Fisch, 1977, §429). This issue most frequently arises when evaluators seek the views of knowledgeable witnesses from whom testimony is not anticipated. Individuals referred to as ‘‘collateral sources,’’ such as teachers, treating mental health professionals, and siblings, are often interviewed by custody evaluators when no thought has been given to whether they will be called as witnesses. Such evidence, obtained orally or through written records, is often admitted. NEW ARENA, NEW RULES In drafts of the Association of Family and Conciliation Courts’ (AFCC, 2006) Model Standards of Practice for Child Custody Evaluation several commentators expressed the view that evaluators should not be expected to ‘‘have knowledge of the legal and professional standards, laws, and rules applicable to the jurisdiction in which the evaluation is requested’’ (Model Standard 2.1). It was the view of the task force that the forensic nature of the custody evaluator’s task demands that evaluators have this knowledge. When mental health treatment providers joined provider panels so that clients could more easily utilize health insurance to offset the cost of treatment, these providers had to learn a new set of rules. There were new record keeping standards, regulations concerning access to records, and policies affecting practitioner accountability. Mental health practitioners who wish to enter the forensic arena must also learn a new set of rules. Mental health professionals who have elected to offer forensic psychological services are obligated to recognize that operating within the legal system demands a mind-set modification and an awareness of the discovery process. Attorneys have certain obligations that mental health professionals must appreciate. The attorney representing a client who wishes to challenge an evaluator’s findings must have full access to the evaluator’s file to plan an effective cross-examination. EVALUATORS’ RECORD KEEPING The developers of the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) were setting the
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bar where it belongs when they observed that the standard to be applied to records such as those created by custody evaluators ‘‘anticipates that the detail and quality of such documentation will be subject to reasonable judicial scrutiny’’; when they emphasized that ‘‘this standard is higher than the normative standard for general clinical practice’’; and when they explained that when psychologists have ‘‘foreknowledge that their professional services will be used in an adjudicative forum, they incur a special responsibility to provide the best documentation possible under the circumstances’’ (Section VI.B). The importance of advocating for the creation and preservation of detailed records in custody-related work took on added importance when a text was published in which the destruction of records is advocated. In this text, the authors endorse the erasure of tapes and opine that doing so ‘‘prevents the opposing counsel from using contemporaneous material out of context during a later cross-examination at deposition or trial’’ (Benjamin & Gollan, 2003, p. 35). Courts do not take lightly to the destruction of records. ‘‘Spoliation is the destruction or significant alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation’’ (West v. Goodyear Tire & Rubber Co., 1999, p. 778). A document, once created, should neither be destroyed nor altered. The definition of spoliation, as it appears in Black’s Law Dictionary (Nolan & Nolan-Haley, 1990, p. 1401), incorporates the notion that the act of spoliation ‘‘constitutes an obstruction of justice.’’ If ‘‘obstruction of justice’’ is accepted as a defining feature of spoliation, then it follows that evaluators have an affirmative obligation to preserve their records. It is indisputable that evaluators have foreknowledge that their records are likely to be needed if the cases in which they have been involved proceed to trial. It is naive not to recognize that the destruction by evaluators of their own records is a self-serving act. Such destruction makes effective cross-examination impossible. When evaluators alter, conceal, or destroy portions of their files, efforts to thoroughly explore their methods and procedures are frustrated and the risk is increased that errors will go undetected. Evaluators—even those who have been appointed by the court—sometimes err. The work product of a courtappointed custody evaluator should be subjected to no less scrutiny than the work product of a retained expert. ETHICAL CONSIDERATIONS ETHICAL EVOLUTION In his ‘‘Foreword to the Association of Family and Conciliation Court’s Model Standards of Practice for Child Custody Evaluation,’’ Martindale (2007, p. 61) observed:
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Most professional practice standards evolve from accepted ethical principles and ethical principles are derived from and are, in essence, elucidations of the ethic of reciprocity. Evaluators should treat those with whom they interact as the evaluators would wish to be treated if the roles were reversed. It is incumbent upon evaluators to view the evaluation process from the perspective of the child, the litigants, the family members, the collateral sources, the attorneys, and the judge.
As we examine the history of the healing professions in our county, we see clear indications of a developing sense of ethics. The road to ethical maturity, however, is not without its potholes. As our society has become more litigious, we can see disturbing indications that various professions are becoming increasingly self-protective and, in doing so, are losing sight of the legitimate needs of those whom the professions serve. In his commentary on the development of the American Psychological Association’s most recent Ethics Code (APA, 2002), Barnett (2003, p. 9) asserted, ‘‘A main goal of the ECTF [Ethics Code Task Force] was to create a revised Ethics Code that provides better protection for psychologists.’’ The main goal of those revising an existing professional ethics code should be to improve the quality of the work done by members of the profession and to provide in the revised code a higher level of protection for the public than was provided in the earlier code. In a section of the APA’s 2002 Ethics Code dealing with documentation of professional and scientific work, psychologists were reminded that when they ‘‘have reason to believe that records of their professional services will be used in legal proceedings . . . , they have a responsibility to create and maintain documentation in the kind of detail and quality that would be consistent with reasonable scrutiny in an adjudicative forum’’ (Standard 1.23). No similar admonition appears in the 2002 Ethics Code. In the context of forensic work, due process is unobtainable if a forensic psychologist’s records are incomplete, inaccurate, illegible, or inaccessible. We do a disservice to the justice system when we present the participants in the legal process with records that are lacking in reasonable ‘‘detail and quality.’’
EVALUATORS’ OBLIGATIONS All documents outlining professional ethical standards address the obligations of the professionals to the recipients of their services. Evaluators’ obligations go beyond those to the courts that appoint them, to the adults whom they evaluate, and to the children whose best interests are the focus of
Ethical Considerations 57
custody and access evaluations. Evaluators also have obligations to participants in their evaluations and to affected others. Obtaining the Informed Consent of Collaterals Evaluators take unfair advantage of the cooperative nature of collateral sources when the evaluators fail to tell potential collateral sources what they need to know to make informed decisions about whether to assist the evaluator. Evaluators cannot presume that those who are contacted for information will realize that information provided by them is ordinarily discoverable. Many collaterals are likely to assume that information shared with a mental health professional is confidential. Delineating Roles Objectivity is impaired when an evaluator currently has, has had, or anticipates having a relationship with those being evaluated. Relationships cannot be time-delimited; specifically, prior relationships or the anticipation of future relationships can have the same deleterious effects on evaluator objectivity as current relationships would have. The harmful dynamics that characterize concurrent relationships also operate in sequential relationships. Providing Information in Written Form Information provided in written form is superior to information provided orally. Written information provides transparency, consistency, clarity, and accessibility; it protects wrongly accused evaluators and makes it easier to hold evaluators accountable when they err. For these reasons it serves to ensure fairness in the evaluative process. Transparency Ethical Standard 4.02(a) of the psychologists’ Ethics Code (APA, 2002) places on psychologists an obligation to inform both litigants of the reasonably ‘‘foreseeable uses of the information generated through their psychological activities.’’ The ‘‘foreseeable uses’’ include inspection of the file by the court, by the attorneys, and by consultants retained by the attorneys. For that reason, at the outset of their evaluations evaluators should secure signed authorizations from both parents authorizing the release of the entire file at the conclusion of the evaluation to those lawfully entitled to possess it or inspect it. Obtaining the needed authorizations at the conclusion of an evaluation can be difficult, and obtaining a court order can subject the litigants to needless expense. A litigant who is dissatisfied with the findings reported and opinions conveyed in an advisory report may want to have a consultant examine the evaluator’s methodology and data and the nexus between the data gathered and the opinions expressed. That litigant will sign any authorization form that is presented by the evaluator. Quite often, the litigant who
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is pleased with the evaluator’s expressed opinions is motivated to obstruct any examination of the evaluator’s work. That litigant may decline to sign a statement authorizing the release of the file to a reviewer. Thus, by failing to secure authorizations from both parties in advance, the evaluator often creates a knot the untangling of which can be both time-consuming and expensive. With regard to test data in particular, efforts to keep psychological test data out of the hands of nonpsychologists is a battle the outcome of which appears to be dependent on litigants’ monetary resources and willingness to expend those resources in battles for the desired data. Though APA’s (1987) General Guidelines for Providers of Psychological Services may seem dated, Guideline 2.2.2 declares, ‘‘Providers of psychological services avoid any action that will violate or diminish the legal or civil rights of users or of others who may be affected by their actions.’’ The rights of custody litigants to question opinions formulated by evaluators is substantially diminished when access to test data is blocked. The Case of the Misleading Credentials In June 2004, in response to much publicly expressed discontent, New York State Chief Judge Judith S. Kaye appointed a Matrimonial Commission ‘‘to review all aspects of matrimonial litigation and make recommendations for improving how the courts handle such litigation in both Family court and Supreme Court’’ (Miller 2006, Report of Commission). The Commission noted that ‘‘certain credentials may be misleading’’ and stated, ‘‘The Commission strongly urges the court and bar to carefully review the potential expert’s resume, curriculum vitae and application and be informed about the accreditations included therein’’ (Miller 2006, Report of Commission). It was noted that certification by certain organizations should not be interpreted as representing endorsement by the professions to which the certified practitioners belong. The Commission concluded by stating emphatically that if an evaluator with questionable certifications ‘‘gets to the point of testifying in court, it is the responsibility of the attorney to conduct a voir dire to clarify the question of validity of such credentials during the qualifying process’’ (p. 48). A mental health expert’s participation in litigation carries with it an obligation to contribute clarity, not misleading complexity. Mental health professionals ignore their responsibility to be helpful when they create confusion concerning their own credentials and, more specifically, what it means to be board certified. Whether or not the presentation of questionable credentials constitutes an ethical violation is a matter about which there continues to be heated debate. The point at which puffery becomes deception may be hard to pin down.
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Experts who display credentials issued by what are disparagingly referred to as ‘‘vanity boards’’ often point out that there are no empirical data linking board certification by the well-respected boards with demonstrably superior work in one’s field. It is their contention that the citing of board certification from the American Board of Professional Psychology, for example, creates an uneven playing field and that the citing of board certification by one of the now numerous vanity boards simply levels the field. The forthright course of action to be taken if one believes that board certification is not relevant in assessing a mental health professional’s expertise is to advance a convincing argument. The practitioner who advertises certification awarded by a vanity board indirectly suggests to the public that the difference between being board certified and not being board certified is relevant and that it is the differences among the various boards that are not relevant. That important differences exist among the various boards is demonstrable. We should not lose sight of the fact that, under Federal Rule of Evidence 702, ‘‘a witness [is] qualified as an expert by knowledge, skill, experience, training, or education.’’ If the traditional boards diligently endeavor to assess these professional attributes (as we assert is the case) and the nontraditional boards do not, it is reasonable to look with disfavor on the citing of credentials awarded by the nontraditional boards. Articulating Limits Mental health professionals should not present themselves to courts as experts unless they have a reasonably sufficient knowledge of the published research in their fields of expertise. For example, custody evaluators ought to be familiar with the extensive body of research that consistently demonstrates that experts in the mental health fields are no more effective at identifying lying than are nonexperts (DePaulo, Charlton, Cooper, Lindsay, & Muhlenbruck, 1997; Ekman & O’Sullivan, 1991; Feeley & Young, 1998; Frank & Feeley, 2003). To suggest that they can do so is to deceive the court. As one New York court put it, ‘‘There is no basis, at this time, to conclude that a psychologist is significantly more able to determine whether one is telling the truth than a layperson. Consequently, where, as here, the witness in question testified to the Court, the determination of her credibility should properly be left with the court as finder of the fact’’ (Matter of Sanchez, 1988). The same principle has been followed by a number of Courts (see, for example, U.S. v. Barnard, 907, 912, 913). The admonition to do no harm applies not only to the families with whom evaluators work but to the justice system as well. Evaluators do harm to the operation of the justice system when they deliberately or unintentionally lead courts to believe that they know more than they do, that their assessment devices are more reliable and precise than they are known to be, or
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that clinical intuition is a suitable substitute for opinions based on empirical data. When experts decline to opine or when they offer candid statements concerning the limits of their data, courts may decide that the experts’ input has not been helpful, but at least the input has not been harmful. Expert testimony is harmful when experts who should not opine do so anyway or when experts suggest that their methods have been reliable when the methods are not. It is not uncommon for testifying custody evaluators to present themselves and their data in ways that create the illusion that they know more than they do, can reliably offer the predictions that will form the basis of a parenting plan (when they cannot), and can resolve the complex issues facing the court (when they actually have no rational basis for such an assertion). A misleading aura of precision is often created when experts utilize assessment devices that produce numerical scores. Similar harm is done when experts imply (or courts infer) that expertise forms the basis for an expressed opinion when, in fact, it does not. Being Objective about Subjectivity Diane Gould-Saltman (2005, p. 72), an experienced family law attorney, opines that attorneys like tests because they ‘‘break things down to numbers, and we understand numbers.’’ She adds, ‘‘Tests give the sense of objectivity to counterbalance the much more subjective clinical portion of a custody evaluation’’ (p. 72, emphasis added). Unfortunately, psychologists have been known to overstate the objectivity of tests and to identify as ‘‘tests’’ assessment devices that do not meet the defining criteria for tests. The generally agreed upon definition of ‘‘test’’ is to be found in the introduction to the most recent edition of the Standards for Educational and Psychological Testing (American Educational Research Association, American Psychological Association, & National Council on Measurement in Education, 1999, p. 3): ‘‘A test is an evaluative device or procedure in which a sample of an examinee’s behavior in a specified domain is obtained and subsequently evaluated and scored using a standardized process.’’ The importance of standardization is emphasized: ‘‘In all cases . . . tests standardize the process by which test taker responses to test materials are evaluated and scored’’ (p. 3). Stephen Behnke (2004, p. 58), the ethics director for the American Psychological Association, has observed that ‘‘Principle A [of the APA Ethics Code] recognizes the influence that psychologists have over others and exhorts psychologists to use that influence responsibly and with care. In few places of our profession is this influence felt more than in psychological assessment.’’ Readers of reports may mistakenly presume that there is no room for deliberate distortion in the reporting of test results and only minimal room for subjectivity.
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The use of self-report inventories (often referred to as objective tests) and of computer-generated interpretive reports has been the subject of considerable discussion (Butcher, 2003; Eyde, Kowal, & Fishburne, 1991; Fowler, 1969; Moreland, 1985; Otto & Butcher, 1995; Otto & Collins, 1995; Otto, Edens, & Barcus, 2000). Commenting on self-report inventories, Theodore Millon and his colleagues (Millon, Davis, & Millon, 1997, p. 7) have opined: There are distinct boundaries to the accuracy of the self-report format; by no means is it a perfect data source. Inherent psychometric limits, the tendency of similar patients to interpret questions differently, the effect of current affective states on trait measures, and the effort of patients to affect certain false appearances and impressions all lower the upper boundaries of this method’s potential accuracy.
Rarely do evaluators include in their advisory reports all the data that are generated when self-report inventories have been administered to litigants. Rarely do evaluators exclude any mention of the data. As might be expected, evaluators tend to cite those data that are deemed pertinent by the evaluators. As evaluators decide what is pertinent, confirmatory bias can influence the decision-making process (Martindale, 2005). Evaluators who utilize computerized scoring services but interpret the data independently can be selectively attentive to supportive data if they are so inclined. The problem is not resolved by the use of computer-generated interpretive reports. For many reasons, not the least of which is ‘‘the effect of current affective states on trait measures’’ (Millon et al., 1997, p. 7), evaluators must review interpretive reports with great care. Standard 9.09 (c) of the psychologists’ Ethics Code reminds psychologists that they ‘‘retain responsibility for the appropriate application, interpretation, and use of assessment instruments, whether they score and interpret such tests themselves or use automated or other services’’ (APA, 2002, p. 1072). The responsibility alluded to presents evaluators with an opportunity to select from a lengthy narrative report those passages that are in accord with the evaluator’s impressions, omit passages that would call into question the evaluator’s impressions, and explain both of these editorial actions by referring to the expert’s ultimate responsibility for the interpretation of test data. Advocacy and Data Suppression Court-appointed evaluators are viewed as impartial experts, but the same behaviors that are observed in advocates can sometimes be seen in neutral evaluators when they become emotionally invested in bolstering the opinions they have expressed in their reports. Where data supportive of one’s position are presented forcefully; where data
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not supportive of one’s position are withheld; where the recipient of the evaluator’s information, perspectives, opinions, and recommendations is a court; where the evaluator knows that the court is utilizing his or her advisory input to make decisions concerning issues of visitation and custody; and where the evaluator knows (or, pursuant to applicable standards, reasonably ought to know) that flawed decisions may result in irreparable harm to the family whose dispute is before the court, the withholding of pertinent data and the failure to articulate the significant limitations in data or of discrepancies in data violate the trust that courts have placed in their appointed evaluators. MALPRACTICE AND DISCIPLINARY ACTIONS COMMENTARY
ON
MALPRACTICE
A lack of ability to meet the demands of a professional obligation constitutes incompetence. The acceptance of a professional duty for which one is not adequately prepared by virtue of education and training rises to the level of gross incompetence when the duty has been aggressively sought rather than imposed; when the deficiencies in a practitioner’s education and training are or should be apparent to him or her; when opportunities to obtain the requisite education and training abound; and when the practitioner has, by choice, not developed the skills needed to competently perform the assignment that he or she has accepted. Some health service providers wishing to escape from the grip of managed care have begun promoting themselves as custody evaluators without first having obtained the education or undergone the training needed to responsibly identify themselves as forensic practitioners. The standard of care by which evaluators will be judged is likely to be determined, at least in part, by their own statements concerning the nature of their services and areas of expertise. Where ignorance of pertinent information can be demonstrated, it is likely that the decision not to secure the necessary expertise coupled with the decision to promote oneself as an expert will be viewed as intentional acts. At the same time it should be noted that witnesses and individuals acting on behalf of the courts (or other government agencies) are generally immune from civil suit. These and other factors mean that malpractice suits against expert witnesses are rarely successful even when the witness’s behavior has been egregious. Disciplinary Boards Complaints about evaluator conduct are much more commonly addressed through complaints to licensing boards, ethics committees, and similar entities than to courts of law. Though such complaints seldom reward the complainants financially, they can have even more
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devastating effects on practitioners than malpractice suits. These proceedings can be particularly frightening because rules of evidence and procedure tend to be far less well developed than they are in courts of law. Forensic evaluators are often at a particular disadvantage before these boards because their members are commonly unsophisticated about the difference between forensic and therapeutic practice. We believe that many of the complaints about increasingly rigorous standards of practice are misplaced and should instead be directed to insisting that the board be more transparent and more sophisticated in their operation. Very little is known about the ways disciplinary boards investigate licensed practitioners. The potential for devastating consequences that arise from disciplinary board investigations suggests an urgent need for systemic revision of their operation in the interest of increased transparency, sophistication, and fairness. How Are Investigations Initiated? Must there be a complainant, or can the committee, board, or agency initiate an investigation sua sponte (on its own) rather than in response to a complaint? Does the organization accept anonymous complaints? Does the investigative agency act on complaints registered by organizations (such as a county psychological association)? Does the organization investigate the actions of practitioners not yet under its jurisdiction (such as practitioners who are not yet licensed but presumably wish to be licensed in the future)? Does a withdrawn complaint stop the investigative process or does an investigation, once started, continue? What Is the Organizational Structure of the Board? From what broader agency does the board derive its authority? (Is it, for example, under the aegis of the Department of Consumer Affairs?) What is the source of its funds, and what data are sought by oversight groups when funds are being sought? (In fighting for its budget, is the board encouraged to demonstrate that it has investigated and disciplined an impressive number of practitioners?) What other agencies compete for whatever funds are available? What is the composition of the board? (How many of the board members are familiar with forensic work in general and custody work in particular?) How are members of the board selected? What Are the Investigative and Operational Procedures? Is the focus of the investigation limited by the allegations contained in the complaint? (Does the board investigate aspects of an evaluator’s professional practice concerning which no allegations have been made?) Are consultants retained? If so, how are they selected? What information is given to them? Can consultants, once retained, request that their assigned tasks be broadened or changed? If a practitioner has been previously investigated and no disciplinary action has
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been taken, can a new complaint result in a review of earlier complaints and the use of information obtained during the investigation of earlier complaints? Are plea bargains offered? What is the range of possible outcomes? What Are the Complainant’s Rights? Can the complainant offer testimony during the investigative inquiry? Can the complainant call witnesses? Can the complainant search for others who have been displeased with the results of evaluations and encourage them to join in the complaint? Can the complainant retain his or her own expert? What Are the Rights of the Practitioner under Investigation? Is the practitioner shown a copy of the complaint and supporting documents? If not, what information is provided? If a consultant has been retained, does the practitioner have access to the consultant’s report? Can the practitioner seek the exclusion of the consultant’s report if it is felt that there is a conflict of interest? Are helpful instructions given to the practitioner relating to what documents must be produced? IMMUNITY
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In the first edition of this text (Galatzer-Levy & Kraus, 1999), Myers and Erickson (1999, p. 28) wrote, ‘‘A mental health professional who is appointed by a judge to conduct a custody evaluation for the judge is typically [emphasis added] protected by absolute judicial immunity.’’ In our view, such statements contribute to a false sense of security among evaluators. If the term ‘‘typically’’ is used by Myers and Erickson to suggest ‘‘more often than not,’’ we question the basis for their assertion. No data are provided and, in fairness, pertinent data would be impossible to obtain. We have no way of knowing how many times a potential plaintiff has conferred with an attorney regarding the desire to sue an evaluator only to be told by the attorney that it cannot be done because the evaluator has been granted immunity. Though Myers and Erickson cite cases in which suits have been initiated and subsequently dismissed, it would be imprudent to presume that such fortunate outcomes occur without exception. According to Nolan and Nolan-Haley (1990, p. 848), even absolute judicial immunity is a misnomer: ‘‘[A] judge is not subject to liability for any act committed within the exercise of his judicial function’’ (emphasis added). Thus even if we presume (and we do not) that the immunity granted to the judge extends to those whom the judge appoints, it can be alleged that an evaluator has committed an act that was not within the exercise of the court-appointed function. Additionally, the phrase ‘‘not subject to liability’’ refers to protection from civil suits. Evaluators can be held accountable for their actions by
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licensing boards or ethics committees, and sanctions as severe as loss of license can be imposed. Examples abound of courts ruling that immunity statutes are inapplicable for various reasons. In October 1999 the Pennsylvania Supreme Court (in a 5–2 decision) nullified an expert’s immunity. The court declared that the purpose of protecting witnesses is to foster ‘‘an atmosphere where the expert witness will be forthright and candid in stating his or her opinion’’ (LLMD of Michigan v. Jackson-Cross, 1999, p. 186). No useful purpose is served ‘‘by immunizing an expert witness from his or her negligence in formulating that opinion’’ (p. 186). In 1993 the Colorado Court of Appeals ruled, ‘‘Immunity is not established merely because a court appointee performed acts within the scope of the court’s order . . . . It is still necessary to establish that the acts performed were intimately related and essential to the judicial decision-making process’’ (Awai v. Kotin, 1993, p. 1332). In 1984 the New Jersey Supreme Court, in Levine v. Wiss & Co., (1984) offered these observations: (a) ‘‘One who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities’’ (p. 246); (b) a distinction must be made ‘‘between a person engaged because of special knowledge, technical skill, or expertise’’ to gather information for the court and a person ‘‘in whose hands the dispute resolution process is entrusted’’ (p. 248); and (c) ‘‘there is no special significance to be attached to the fact that defendants were appointed . . . pursuant to court order. A court-appointment is not a talisman for immunity. It does not alter the critical fact that defendants engaged in no adjudication and exercised no quasi-judicial power’’ (p. 252). Even where immunity is offered, the wording of the statute or precedent on the basis of which the immunity is provided is critical. In some states eligibility for immunity is based on one’s defined role; in other states eligibility is based on one’s activities. Where immunity is predicated on performing activities enumerated in a court order, immunity is lost if the activities about which someone is complaining are activities that the complainant asserts were beyond the scope of the court’s order. Immunity clauses offer no protection against alleged civil rights violations. Evaluators can be charged with having engaged in discriminatory actions (on the basis of race, religion, age, sex, ethnicity, and, in some jurisdictions, sexual preference). It is not uncommon to encounter ‘‘good faith’’ wording in immunity statutes. Consider, for example, Title VI, Chapter 61, of Florida’s statutes governing the practice of psychology: A psychologist who has been appointed by the court to conduct a child custody evaluation in a judicial proceeding is presumed to be acting in good faith if [emphasis added] the evaluation has been conducted pursuant to standards
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that a reasonable psychologist would have used as recommended by the American Psychological Association’s guidelines for child custody evaluation in divorce proceedings.
The APA (1994) custody guidelines contain 16 guidelines addressing such matters as focusing on the needs of the child, remaining impartial, having sufficient ‘‘specialized knowledge,’’ not exceeding the scope of the evaluation, using the ‘‘most appropriate methods available,’’ and recording ‘‘all raw data and interview information . . . with an eye toward their possible review by other psychologists or the court.’’ Rebutting the good faith presumption simply requires that a plaintiff allege that the practitioner was inattentive to one of more of the published guidelines.
CONCLUSION Just as it is possible to perform surgery without a sterile technique or to drive a race car without a helmet it may be possible to conduct a custody evaluation without good knowledge of the ethical and legal issues surrounding the evaluation. But it is impossible to do a good evaluation without this knowledge. Evaluators who proceed without such knowledge are likely to serve the court and litigants poorly and may well find themselves in a difficult situation. Fortunately, despite the difficulties of doing so, courts are moving to ever higher standards for evidence that claims to be scientific. The bad old days when ‘‘clinical wisdom’’ or a veneer of science were adequate to make testimony credible are quickly passing. At the same time, however, judges and lawyers whose training rarely includes any firm information about the methods of science face a steep learning curve as they try to differentiate scientifically credible testimony from opinions with less firm bases. Educating courts about how to implement the new, more solid standards is a major task for evaluators. It is best achieved by living up to the rigorous demands of performing and presenting scientifically based custody evaluations and, by doing so, showing courts how much more valuable such evaluations are in reaching just decisions about the incredibly difficult cases that confront them. NOTE 1. Throughout this chapter we refer to the Guidelines of the American Psychological Association and those of the Association of Family and Conciliation Courts because they are the most thoroughly developed sets of guidelines. Other important guidelines and ethical principles have been developed by the American Psychiatric Association, the American Academy of Child and Adolescent
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Psychiatry, the American Academy of Psychiatry and the Law, the National Association of Social Works, and the American Professional Society on the Abuse of Children, among others, including local professional organizations. Evaluators should be aware of all of the major guidelines as well as the guidelines that apply to their particular location and discipline. Familiarity with local case law is also important.
REFERENCES American Educational Research Association, American Psychological Association, & National Council on Measurement in Education. (1999). Standards for educational and psychological testing. Washington, DC: American Psychological Association. American Psychological Association. (1987). General guidelines for provision of psychological services. American Psychologist, 42, 712–723. American Psychological Association. (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49, 677–680. American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060–1073. Association of Family and Conciliation Courts. (2006). Model standards of practice for child custody evaluation. Madison, WI: Author. Awai v. Kotin, 872 P.2d. 1332 (Colo. Ct. App. 1993). Bala, N. (2005). Tippins and Wittmann asked the wrong question: Evaluators may not be ‘‘experts’’ but they can express best interests opinions. Family Court Review, 43, 554–562. Barnett, J. E. (2003, Spring). APA’s revised ethics code: Implications for professional practice. Register Report, 29, 9–11. Behnke, S. (2004). Ethics rounds: Test scoring and interpretation services. Monitor on Psychology, 35, 58–59. Benjamin, G. A. H., & Gollan, J. K. (2003). Family evaluation in custody litigation: Reducing risks of ethical infractions and malpractice. Washington, DC: American Psychological Association. Butcher, J. N. (2003). Computer-based psychological assessment. In J. R. Graham & J. Naglieri (Eds.), Comprehensive handbook of psychology (Vol. 10, pp. 141–164). New York: Wiley. Calloway, G. (2002). When forensic rigor is overly applied in ‘‘child-based vs. forensic evaluations.’’ In G. Calloway & S. M. Lee. (Eds.), Proceedings of the fifth International Symposium on Child Custody Evaluations and the fifth International Congress on Parent Education and Access Programs (pp. 213–219). Madison, WI: Association of Family and Conciliation Courts. Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655–665. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Daubert v. Merrell Dow Pharmaceuticals, Inc. (on remand), 43 F.3d. 1311 (9th Cir. 1995).
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DePaulo, B. M., Charlton, K., Cooper, H., Lindsay, J. J., & Muhlenbruck, L. (1997). The accuracy-confidence correlation in the detection of deception. Personality and Social Psychology Review, 1, 346–357. Eaton, L. (2004, May 23). For arbiters in custody battles: Wide power and little scrutiny. New York Times. p. 1. Ekman, P., & O’Sullivan, M. (1991). Who can catch a liar? American Psychologist, 46, 913–920. Eyde, L., Kowal, D. M., & Fishburne, F. J. (1991). The validity of computer-based test interpretations of the MMPI. In T. B. Gutkin & S. L. Wise (Eds.), The computer and the decision-making process (pp. 75–123). Hillsdale, NJ: Erlbaum. Federal Rules of Evidence, 2006. Printed for the Committee on the Judiciary House of Representatives, United States Government Printing Office, Washington, DC, 2006. Feeley, T. H., & Young, M. J. (1998). Humans as lie detectors: Some more second thoughts. Communication Quarterly, 46, 109–126. Fisch, E. L. (1977). Fisch on New York evidence. New York: London (Florida statutes) FSA 61.122 (1). Fowler, R. D. (1969). Automated interpretation of personality test data. In J. N. Butcher (Ed.), MMPI: Research developments and clinical applications, New York: McGraw-Hill. Frank, M. G., & Feeley, T. H. (2003). To catch a liar: Challenges for research in lie detection training. Journal of Applied Communication Research, 31, 58–75. Galatzer-Levy, R. M., & Kraus, L. (1999). The scientific basis of child custody decisions. New York: Wiley. Gould, J. W., & Martindale, D. A. (in press). The art and science of child custody evaluations. New York: Guilford Press. Gould-Saltman, D. (2005). Testing, one, two, three, testing: An attorney perspective. Journal of Child Custody, 2, 71–81. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999). Levine v. Wiss & Co., 97 NJ 242 (1984). Lilienfeld, S. O., Lynn, S. J., & Lohr, J. M. (2003). Science and pseudoscience in clinical psychology. New York: Guilford Press. LLMD of Michigan v. Jackson-Cross, 559 Pa.297, 740 A.2d. 186 (Penn. Supr. 1999). Martindale, D. A. (2001). Cross-examining mental health experts in child custody litigation. Journal of Psychiatry and Law, 29, 483–511. Martindale, D. A. (2005). Confirmatory bias and confirmatory distortion. In J. R. Flens & L. Drozd (Eds.), Psychological testing in child custody evaluations (pp. 31–48). New York: Haworth. Martindale, D. A. (2007). Foreword to the Association of Family and Conciliation Courts’ Model standards of practice for child custody evaluation. Family Court Review, 45, 61–69. Matter of Bennett v. Jeffreys, 40 N.Y.2d 43, 387 N.Y.S.2d 821 (1976). Matter of Sanchez, 141 Misc.2d 1066 (Family Ct., N.Y. Co., 1988). Millon, T., Davis, R. D., & Millon, C. (1997). MCMI-III manual (2nd ed.). Minneapolis, MN: NCS Pearson.
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Moreland, K. L. (1985). Validation of computer-based interpretations: Problems and prospects. Journal of Consulting and Clinical Psychology, 53, 816–825. Myers, J. E. B., & Erickson, R. (1999). Legal and ethical issues in child custody litigation. In R. M. Galatzer-Levy & L. Kraus (Eds.), The scientific basis of child custody decisions (pp. 12–31). New York: Wiley. Nolan, J. R., & Nolan-Haley, J. M. (1990). Black’s law dictionary (6th ed.). St. Paul, MN: West. Otto, R. K., & Butcher, J. N. (1995). Computer-assisted psychological assessment in child custody evaluations. Family Law Quarterly, 29, 79–96. Otto, R. K., & Collins, R. P. (1995). Use of the MMPI-2/MMPI-A in child custody evaluations. In Y. S. Ben-Porath, J. R. Graham, G. C. N. Hall, R. D. Hirschman, & M. S. Zaragoza (Eds.), Forensic applications of the MMPI-2 (pp. 205–211). New York: Sage. Otto, R. K., Edens, J. F., & Barcus, E. H. (2000). The use of psychological testing in child custody evaluations. Family and Conciliation Courts Review, 38, 312–340. Sales, B. D., & Shuman, D. W. (2005). Experts in court: Reconciling law, science, and professional knowledge. Washington, DC: American Psychological Association. Shuman, D. W., & Sales, B. D. (1999). The impact of Daubert and its progeny on the admissibility of behavioral and social science evidence. Psychology, Public Policy, and Law, 5, 3–15. Tippins, T. M. (2003, July 15). Custody evaluations: Pt. I. Expertise by default. New York Law Journal, p. 3. Tippins, T. M., & Wittmann, J. P. (2005). Empirical and ethical problems with custody recommendations: A call for clinical humility and judicial vigilance. Family Court Review, 43, 193–222. U.S. v. Barnard, 490 F.2d 907, 912, 913. Washington v. United States, 390 F.2d. 444 (1967). West v. Goodyear Tire & Rubber Co., 167 F.3d. 776, at 778 (2d Cir. 1999).
CHAPTER 3
Observations of Parents, Caretakers, and Children for Child Custody Assessment ANITA LAMPL
R
IGOROUS ASSESSMENT OF parenting must be objective in the child custody evaluation, which is at the interface between the mental health professions and the legal system. Many methods exist by which to assess parenting, including self-report, observations of parents and children in the home, structured and nonstructured observations of interactions in the office, and information from collateral sources. Multimethod assessments are useful because they combine sound measurement approaches and capture a broad spectrum of variance in the concept of parenting (Janssens, Bryer, Manders, & Scholte, 2005; Zaslow et al., 2006). The caveat needs to be added that only sound measurement approaches must be used as tools in custody evaluations. This chapter reviews the usefulness of parenting observations as seen in the experimental literature, the demand for observations in the child custody assessment field, the concerns about the validity and reliability of observations, the nature of measures available in the clinical and experimental literature, home visits and observational issues, and what may be necessary to bring observations as a tool up to the level of rigorous assessment.
USEFULNESS OF PARENTING OBSERVATIONS Parenting is a consistent yet often modest predictor of children’s outcomes (e.g., see Bonkowski, Raney, & Bristol-Power, 2001). Voluminous research on parenting exists. Parental warmth, parental hostility, parental respect for the child’s autonomy, parental ability to set limits, and parental ability to 71
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provide an environment that stimulates the child cognitively are key factors in predicting how well children do. Parental warmth and limit-setting ability are key elements also in a child’s postdivorce adjustment (Buchanan, Maccoby, & Dornbusch, 1996; Fine, Voydanoff, & Donnelly, 1993; Maccoby & Mnookin, 1992; Whiteside & Becker, 2000). Direct structured observations of parent-child interactions yield information that is similar to information from self-report, that is, questionnaires or tests. But such observations can be a more powerful predictor of a child’s outcome than parental self-report. For example, rating observed family interactions on a 7-point Likert scale for warmth yields more predictive data than the parents’ self-reports of warmth. When several types of measures of parenting are included, the prediction of a child’s outcome is substantially enhanced (Janssens et al., 2005; Zaslow et al., 2006). DEMAND FOR OBSERVATIONS VERSUS VALIDITY AND RELIABILITY CONCERNS Because of their usefulness in predicting child outcome, it would be difficult to argue that parent–child observations should not be included in a child custody evaluation. In fact, many major professional associations that assume oversight responsibilities in child custody evaluations require observations of parents and children together. The Association of Family and Conciliation Courts (AFCC), a multidisciplinary body of judges, attorneys, private mental health professionals, and court mental health professionals, concerns itself routinely with advancing best practice models for a host of ills that beset the family in court. Both in the AFCC’s already published standards and in its newest draft, it holds specifically that evaluators should observe parents and children in interactions together as part of gathering useful data from a variety of sources and in multiple ways (AFCC, 1995, 2006). The guidelines for child custody evaluation and divorce proceedings of the American Psychological Association (1994, p. 678) states that ‘‘comprehensive child custody evaluations generally require an evaluation of all parents or guardians and children, as well as observations of interactions between them.’’ California established its uniform standards of practice for a court-ordered child custody evaluations in 2002. Those standards state that the scope of the evaluation includes observation of the parent-child interaction ‘‘unless contradicted to protect the best interest of the child’’ and calls for interviewing and observing the child not just with the parents but also with ‘‘stepparents, step and half siblings,’’ and full siblings (California Rules of Court, 2006, Rule 5.220(e)(2)(D)). Emphatically supporting direct behavioral observation, Gould and Stahl (2000, p. 406) said, ‘‘We can think of no defensible position in which an
Demand for Observations versus Validity and Reliability Concerns 73
evaluator does not directly observe parent-child interactions when conducting a child custody evaluation.’’ This is a modification of Stahl’s (1994, p. 62) earlier position, in which he did not always include a parent-child observation if the child was over the age of 10. However, the custody evaluator adapting readily to this call for direct observation finds that the child custody literature raises significant concerns about the validity and reliability of procedures that evaluators use. The same AFCC (2006, 5C2-1) model standards that call for observations of interactions also note that the state of the art regarding observational data, offers no professional consensus concerning methodology. The standards then request that evaluators, concerned about ‘‘a balanced and standardized approach,’’ ‘‘be prepared to articulate the basis for the methodological decisions made by them’’ (5C2-1). (For further information on a variety of concerns about reliability and validity of data in general, see Gould, Martindale, & Flens, Chapter 4; Emery and Donohue, 2005.) After considering a plethora of factors that could be assessed in an evaluation, the existing knowledge of what affects the long-term adjustment of children after parental separation, and the state of the science and art of evaluating unique families for court, Krauss and Sales (2000, p. 870) concluded that mental health professionals ‘‘are not currently capable of offering scientifically derived opinions detailing an appropriate custody placement for a child. An expert opinion based exclusively on one’s clinical experience is not likely to convey any predictive accuracy beyond that of a normal individual.’’ Krauss and Sales (2000, p. 28) then inserted a telling commentary: ‘‘Expert legal opinion that is not based on standardized assessment instruments has not generally been treated as scientific evidence by the courts. . . . This test has been admitted under a broad relevancy approach to evidence.’’ They add, ‘‘The mere acceptance of information or testimony by the court does not indicate that it is ethical or appropriate for [mental health professionals] to offer such testimony.’’ Clearly there is tension among standards of practice, rules for court mandating parent-child observations, and the argument that clinical opinion in the absence of standardized measures is not worth more than anyone else’s and therefore may be unethical to offer. The mental health professional appears to be between a rock and a hard place in terms of custody evaluations. Relying on the AFCC (2006) draft standards, which call for a defense of the methodology that the mental health professional uses, one would need first to establish an overview of the general use of observation by mental health professionals, the oeuvre of methodologies for observation used by evaluators, methods that are published as clinical assessment tools and therefore available to clinicians, and methods that are published in the research literature that might be applicable. Although these categories of observation
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techniques are not by nature nonoverlapping, there is in fact little overlap among them and some categories have no members at all. MEASURES AVAILABLE IN THE CLINICAL LITERATURE What is the current practice among custody evaluators as to observations of parents and children? Bow and Quinnell (2001) and Ackerman and Ackerman (1997) give detailed information about the practice of seasoned psychologists in the field. Among those evaluators, parent-child observations are the third most commonly used practice, with over 90% doing them in 2001. Psychologists spent 2.6 hours doing observations per evaluation. For two parents and an average of two children, that is a range of 20 to 27 minutes per observation set, if each parent is observed with each child separately and each parent is observed with both children together. The vast majority of evaluators (9 out of 10) did not see both parents together with the children. The evaluators primarily did not use structured tasks during the behavioral observations. The majority of observations were done in an office or playroom setting. However, one-third of the respondents also did a home visit, averaging an hour per visit. Bow and Quinnell (2001) noted that practitioners used structured and unstructured tasks. They felt that ‘‘use of structured tasks offered or afforded a greater opportunity to observe the parent and child working toward a goal together’’ (p. 264). They concluded that the use of structured tasks had increased since the 1997 Ackerman and Ackerman study. Writing 20 years earlier, Marafiote (1985, p. 45) summarized his review of the types of observational tasks used by evaluators as ‘‘semi-structured interactions, at best.’’ Offering a more contemporary summary, Hyman (2003, p. 220) said, ‘‘There is very limited research to help guide decisions about what types of tasks to require of families in observational sessions.’’ (More of Hyman’s on-point findings will be discussed later.) That evaluators do not use similar tasks when observing parent-child interactions, even when children are of similar ages, may reflect a larger issue, which is that evaluators have not conceptualized fully what data they hope to collect when they observe the parents, children, and other family members in different combinations. However, even if evaluators have a reasonable conceptual grasp of the type of information they are seeking, there are simply no standardized clinical tools that are generally available with which to do so. No major catalogue for professional testing and assessment resources currently lists an observational instrument for families for any purpose, clinical or forensic (Multi Health Systems, Inc., 2006; Pearson Assessments Catalog, 2005; Psychological Assessment Resources, 2006; Western Psychological Services, 2006).
Measures Available in the Clinical Literature 75
Three psychological teams (Ackerman & Schoendorf, 1992; Bricklin & Elliott, 1995; Munsinger & Karlson, 1994) have authored data-gathering and -organizing systems for evaluators. The Uniform Child Custody Evaluation System (UCCES) by Munsinger and Karlson was not proposed as an assessment tool. The Ackerman-Schoendorf Parent Evaluation of Custody Test (ASPECT) and the Bricklin and Elliott system, A Comprehensive Custody Evaluation Standard System (ACCESS), were proposed as structured assessment tools leading to specific outcomes for recommendations. Each of these approaches has been reviewed and criticized elsewhere (e.g., Otto, Edens, & Barcus, 2002). It is probably sufficient to state that the reviews found that the validity and reliability of both the ASPECT and the ACCESS systems were weak at best. For these purposes, however, the parent-child observation components are interesting because the authors have published them and therefore the formats are available. In addition, the observational data are given a specific place and weight in the assessment process. This is at least a starting point for further discussion of the role of specific types of observational data in the context of child custody evaluations. Evaluators using the ASPECT observe each child interacting with each parent. Family interactions are not mentioned. The recommended tasks are semi-structured. For young children, the parent is to play with age-appropriate toys provided by the evaluator. For older children, the child and parent discuss a nonthreatening topic. The recommended time for each observation is 15 minutes. From this observation and other data, the evaluator addresses the following questions: Is the parent able to set appropriate limits? Did the parent interact appropriately with the child? Is there open communication between the parent and the child? Is there a warm, positive feeling from parent to child? Is there a warm, positive feeling from child to parent (Ackerman & Schoendorf, 1992). Although Bricklin (1995) is critical of the use of observations as typically conducted by evaluators, he does recommend in the ACCESS assessment a series of structured and unstructured observations for the parent and each child. Family observations are not mentioned. He recommends 1- to 2-hour observations using one-way mirrors, if possible. In addition, he recommends that the children be observed with both parents together, although that is not required if the process would be too stressful. The format for observations is specific, including spontaneous interactions and observation of the parent and child when the parent is teaching competency skills and when the child is performing both simple and complex tasks. The parent and child are rated separately. Structured tasks include, for example, solving math puzzles, filling out answers to test questions, putting jigsaw puzzles together, building block constructions, and memorizing poems. The evaluator notes the number of times the child looks at each parent, requests help from each
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parent, and shares affection, as well as the child’s physical placement and comfort with the parent. The observational data addresses several issues, including the parent’s ability to communicate clearly, the parent’s ability to meaningfully communicate a sense of warmth, love, and acceptance, the parent’s ability to be a competent role model, and the parent’s sensitivity to the child in areas of independence, growth, and limit setting. Munsinger and Karlson’s (1994) UCCES system provides for the behavioral observation of parents and children. Parents are rated on 12 criteria, such as ‘‘the ability to make the child feel secure and understood’’ and ‘‘consistency of relations with the child.’’ Behavioral clues to the parent-child fit are, among others, that the parent is open and relaxed, makes clear requests, praises the child, and tolerates the child’s emotions. As represented in Karras and Berry (1985), clinical impressions form the basis for conclusions about families using observational data, even when the observers use structured tasks, video tape interviews, and rank the parents on specific measures of attachment, empathy, sensitivity, and guidance. Because validity and reliability measures for the ASPECT and the ACCESS are not considered to be at an appropriate level for use in a forensic setting and none are offered for the UCCES, even collecting the data in this fashion does not raise the observations above the realm of impression. Therefore, as promising as these tests may be for further research, merely being published does not establish that they are better than clinical impression. However, organized clinical impressions are better than disorganized ones. Organized clinical impressions based on observing well-thought-out unstructured and structured tasks that families complete far better meet the fundamental call for defensible standardized methodologies for custody evaluators. Still, this falls short of the mark compared to experimental designs using observations, as will be seen in more detail later. Marafiote (1985) discussed at length the applicability of behavioral assessment of parent-child interactions for child custody evaluations. He addressed the issues of developing parental constructs to be assessed, interrater reliability, and the impact of the observer on the behavior being observed. The detailed analysis that he offered has not been duplicated in the child custody literature. However, he did not develop a format for observations that clinicians could use, leaving that larger task for further research. Therefore, although child development experimental data support the usefulness of observational data as not just adjunctive to but often more significant than self-report or test measures, and although observations of parents and children are strongly urged, and even demanded, for the purposes of a child custody evaluation, no structured and standardized observation format exists in the clinical or forensic literature that can be immediately adopted for forensic purposes.
Measures Available in the Experimental Literature 77
MEASURES AVAILABLE IN THE EXPERIMENTAL LITERATURE In the experimental literature, there are established, observationally based assessment techniques that both address issues relevant to child custody evaluations and have the merits of validity, reliability, and a track record of establishing effect sizes for the concerns they presume to address. Bringing these techniques into a clinical and forensic realm, however, presents significant problems. The techniques require training, as do all assessment techniques, and require knowledge of the underlying literature. Among the areas addressed are three of significance: attachment, family members’ affect, and the quality of stimulation and parenting observed in the home environment. A child’s attachment to parents is a reasonable area of focus for a custody evaluation. Maintaining secure attachments and reducing anxiety around attachment issues are considered under the best interest standard. Quality of attachment to the caregiver figure has a small to moderate effect on a child’s play activity, emotional regulation, and peer relationships in preschool, middle school, and even adolescence (NICHD Early Child Care Research Network, 2006, p. 38). Secure attachments in infancy also buffer children, adolescents, and young adults against declines in caretaker quality subsequently as well as serve as buffering against other life stressors. Improvement in caretaker quality also improves the quality of attachment over time. Nonetheless, significant life stress alters the security of felt attachments in a significant minority of cases (Waters et al., 2000). The Ainsworth Strange test (Ainsworth, Blehar, Waters, & Wall, 1978) is the standard observationally based assessment of attachment patterns in toddlerhood. Briefly, a toddler, typically between the ages of 12 and 36 months, is observed in a specific series of events involving the caretaker’s presence, then absence, and then reappearance while the toddler remains in an observation room. How the toddler responds to the series of events affectively and behaviorally classifies the child as securely, avoidantly, or anxiously attached to the caregiver. The protocol for the observations requires adherence to the time the toddler and caregiver are together and then apart and to what and who are in the observation room. This well-researched technique has potential for providing useful information about a toddler’s relative attachments to father and mother or to other caregivers. Formulating reasonable custody and access plans for young children is a difficult area at best (Kelly & Lamb, 2000; Whiteside & Becker, 2000). However, no psychologist surveyed was currently using the Strange test with toddlers (Ackerman & Ackerman, 1997; Bow & Quinnell, 2001). A few had used the technique earlier (Karras & Berry, 1985). Additionally, although the Strange Situation has thoroughly documented reliable and valid use in the experimental literature, it has not been translated into a clinical or forensic tool.
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The Family Interaction Coding System (FICS) was designed for evaluating children’s adaption to remarriage (Hetherington, Henderson, Reiss, & Anderson, 1992). This system, which codifies observed family interactions, includes scales for hostility, warmth, coercion, communication skills, assertiveness, mood, and transactional conflict. The FICS also assesses the child’s behavior and interactions, including the child’s prosocial behavior, antisocial behavior, and shy and withdrawn behavior. Families are asked to discuss a recent family problem or argument. Also using observed discussions of recent family problems to assess family interaction is the System for Coding Interactions in Family Functioning (Lindahl & Malik, 1996) and the Family Problem Solving Code (Forbes, Vuchinich, & Kneedler, 2001). Hyman (2003) wisely observes that if a child has a clinical problem, it does not inevitably reflect on the parent, but it may be meaningful to see whether a child manifests poor problem solving, high anger, or other negative behaviors in a session with one parent but not with the other. HOME VISITS AND OBSERVATIONAL ISSUES Home visits are another source of parent-child observations. Research about the effectiveness of home observation compared to in-office observation does not exist, although one-third of evaluators do home visits (Bow & Quinnell, 2001). Hyman (2003) points out that the extra time and expense of home visits may not be justified unless there are specific concerns about the safety and quality of the home environment. Income disparity between households can subtly affect the evaluator’s assessment of the quality of home life for the child. Mothers’ incomes and children’s financial well-being drop precipitously from 6 months before the parental separation, and the mother’s and the child’s financial well-being continue to be compromised until the mother remarries, according to some studies (Day & Bahr, 1986; Garrison, 1994; Ozawa & Yoon, 2003; Teachman & Paasch, 1994). Separation disrupts residences also. Inevitably one or both parents leave the family home. Due to financial strain, a parent and child may move in with relatives or friends either temporarily or permanently. Or a parent exercising visitation rights may do so in a new residence while the other parent possesses most, if not all, of the child’s most treasured possessions. A child’s sense of not belonging, of not having friends in the new neighborhood, or of being crowded into a bedroom at Grandma’s house can certainly influence the child’s attitude and behavior in a home visit. These issues may have a marginal impact on the quality of parenting and the parent-child relationship, but may unduly influence the evaluator.
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Specific public and private agencies—such as Child Protective Services, county building inspectors, and animal regulatory groups—are charged with investigating safety and health matters, and these agencies train their personnel in various protocols. Mental health professionals receive no such training on electrical wiring, animal husbandry, or the impact of no indoor plumbing on a child’s quality of life. Nonetheless, a cogent observation from a dispassionate mental health professional on the relevance of a mother’s packrat problems on her child’s ability to do her homework can be particularly apt. Similarly, the court would take notice that a preschooler bathed outside in a toddler pool because there was no tub or shower in the house. These observations do not, however, require an expert witness, although discussing the possible impact of those conditions on the child may require such expertise. Despite these concerns, home visits nonetheless can yield useful information that the evaluator cannot obtain in the office. Once such category may be concerns about the preschool child. Stahl (1994) recommended home visits for children 5 years of age and younger due in part to concerns about the child’s comfort level in the office. He also referred to getting ‘‘a qualitative feel for the differences between parents’’ and the type of situation that they provide for the young child. The Home Observation for Measurement of the Environment (HOME) is a well-researched and frequently cited environmental process measure initially designed specifically to sample certain aspects of the quality and quantity of social, emotional, and cognitive support available to 3- to 6-year-old children in their home (Bradley & Caldwell, 1979, p. 236; Linver, Brooks-Gunn, & Kohen, 2002). The HOME was later expanded to address issues through midadolescence (Totsika & Sylva, 2004). Although assessment of the home environment with the HOME initially focused on children who were developmentally at risk, later large-scale research on early childhood attention, memory, and planning looked at children across economic groups. Quality of family environment was a significant factor, more important than school or child care, in predicting a positive outcome for children, although the overall effect size was small (NICHD Early Child Care Research Network, 2005). Also, the HOME measures of parental sensitivity and responsiveness predict a toddler’s attachment status (Totsika & Sylva, 2004). The HOME assessment addresses areas such as physical environment (safety); stimulation through toys, games, and reading materials; language stimulation; the nature of the physical environment; the parent’s affective engagement with the child in both a positive and a negative way; the parent’s ability to encourage social maturity; and the parent’s ability to engage in a variety of types of stimulation appropriate for cognitive development. Because any home observation is labor intensive, Frankenburg and Coons (1986) developed the Home Screening Questionnaire based on the HOME but
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completed in the office by parents. There was adequate validity and reliability for this measure, especially for toddlers, when compared to the HOME. As a result, about 85% of the issues that put an infant or toddler at risk were identified by the less expensive questionnaire. CONCLUSION This review of parent-child observations in the office and home yields a mixed bag of findings and concerns. On the one hand, there are no standardized methods that evaluators use for observations, even though observations are generally required and are, indeed, generally done. There are no published and widely disseminated clinical observation tools. Although formats for observations have been proposed, those are not validated and have no reliability measures. On the other hand, experimental literature does support the usefulness of observations as an independent source of meaningful data on parenting. That literature finds that concepts such as parental warmth and support can be seen in interactions and measured, even when the actual means of assessing those concepts varies from study to study, which suggests that there is validity to the idea that ‘‘we know it when we see it.’’ The literature does provide formats for assessment of observations, such as the HOME, that meet criteria for validity, reliability, and acceptance in the scientific community. What appears to be required now is the will of the community of evaluators to investigate these possible observational paradigms. Evaluators could begin by determining the time frame likely to be useful for observations, such as 30 minutes per parent and child and another 30 minutes for the family unit, including siblings, half-siblings, stepsiblings, and stepparents. Evaluators could take the position that the parent and child would complete structured tasks appropriate to the age of the child under low stress (or as low as it can be given the fact that the parent and child are being evaluated) and medium stress. Medium stress could be introduced by time restraints on the task or by expectations for the quality of the task. As an example, 4- to 6-year-olds and parents could do a small picture puzzle with time requirements, and 7-yearolds and up could be expected to work on a very brief homework-like assignment with a parent. Low-stress tasks could be discussing pleasant activities that the parent and child do together or drawing a picture together. Special observations for toddlers and infants and parents could be derived. With infants, for example, the ability of the parent to comfort and calm the infant, stimulate but not overstimulate, and attend promptly to infant needs could serve as appropriate data. Evaluators would then observe parent behaviors, child behaviors, and interactive behaviors. Affect, such as smiling, eye contact, verbalizations, and
References 81
voice tone, would be carefully noted. Who, after all, should be better prepared to note affect than a trained mental health professional? Behaviors such as appropriate limit setting, cooperation in task completion, and adequate task structuring by the parent would also be specifically observed and noted. Addressing the needs of the custody evaluation may require dialogue with the academic community in this area. Grants for research into perfecting techniques can be sought and obtained. All that is needed are a few good volunteers.
REFERENCES Ackerman, M. J., & Ackerman, M. C. (1997). Custody evaluation practices: A survey of experienced professional (revisited). Professional Psychology: Research and Practice, 28, 137–145. Ackerman, M. J., & Schoendorf, K. (1992). ASPECT: Ackerman-Schoendorf scales for parent evaluation of custody. Los Angeles: Western Psych Services. Ainsworth, M. S., Blehar, M. C., Waters, E., & Wall, S. (1978). Patterns of attachment: A psychological study of the strange situation. Hove, England: Erlbaum. American Psychological Association, 1994. Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49, 677–680. Association of Family and Conciliation Courts. (1995). Model standards of practice for child custody evaluations. Madison, WI: Author. Association of Family and Conciliation Courts. (2006). Association of Family and Conciliation Courts model standards of practice for child custody evaluations. Manuscript in preparation. Bonkowski J., Raney, S., & Bristol-Power, M. (2001). Parenting and the child’s world: Influences on academic, intellectual, and social-emotional development. Mahwah, NJ: Erlbaum. Bow, J. N., & Quinnell, F. A. (2001). Psychologists’ current practices and procedures in child custody evaluations: Five years after American Psychological Association guidelines. Professional Psychology: Research and Practice, 32, 261–268. Bradley, R. H., & Caldwell, B. M. (1979). Home observation for measurement of the environment: A revision of the preschool scale. American Journal of Mental Deficiency, 84, 235–244. Bricklin, B. (1995). The custody evaluation handbook: Research-based solutions and applications. New York: Brunner/Mazel. Bricklin, B., & Elliott, G. (1995). ACCESS: A comprehensive custody evaluation standard system. Doylestown, PA: Village Publishing. Buchanan, C. M., Maccoby, E. E., & Dornbusch, S. M. (1996). Adolescents after divorce. Cambridge, MA: Harvard University Press. California Rules of Court. (2006). Rule 5.220: Court-ordered child custody evaluations (pp. 869–876.) Available from courtinfo.ca.gov/rules/. Day, D., & Bahr, S. J. (1986). Income changes following divorce and remarriage. Journal of Divorce, 9, 75–88.
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Emery, R. E., Ott, R. K., & O’Donohue, W. T. (2005). A critical assessment of child custody evaluations: Limited science and a flawed system. Psychological Science in the Public Interest, 32, 261–268. Fine, M. A., Voydanoff, P., & Donnelly, B. W. (1993). Relations between parental control and warmth and child well being in step families. Journal of Family Psychology, 7, 222–232. Forbes, C., Vuchinich, S., & Kneedler, B. (2001). Assessing families with the Family Problem Solving Code. In. P. Kerig, & K. M. Lindahl (Eds.), Family observational coding systems: Resources for systemic research. (pp. 59–75). Mahwah, NJ: Erlbaum. Frankenburg, W. K., & Coons, C. E. (1986). Home screening questionnaire: Its validity in assessing home environment. Journal of Pediatrics, 108, 624–626. Garrison, M. (1994). The economic consequences of divorce. Family and Conciliation Courts Review, 32, 10–26. Gould, J. W., & Stahl, P. M. (2000). The art and science of child custody evaluations: Integrating clinical and forensic mental health models. Family and Conciliation Courts Review, 38, 392–414. Hetherington, E. M., Henderson, S., Reiss, D., & Anderson, E. R. (1992). Adolescent siblings in stepfamilies: Family functioning and adolescent adjustment. Malden, MA: Blackwell Publishing. Hyman, D. J. (2003). Parent-child observations in custody evaluations. Family Court Review, 41, 214–223. Janssens, J., Bryer, E., Manders, W., & Scholte, R. (2005). The multi-trait-multimethod approach in family assessment: Mutual parent-child relationships assessed by questionnaires and observations. European Journal of Psychological Assessment, 21, 232–239. Karras, D., & Berry, K. (1985). Custody evaluations: A critical review. Professional Psychology: Research and Practice, 16, 76–85. Kelly, J. B., & Lamb, M. E. (2000). Using child development research to make appropriate custody and assessment decisions for young children. Family and Conciliation Courts Review, 38, 297–311. Krauss, D. A., & Sales, B. D. (2000). Legal standards, expertise, and experts in the resolution of contested child custody cases. Psychology, Public Policy, and Law, 6, 843–879. Linver, M. R., Brooks-Gunn, J., & Kohen, D. E. (2002). Family processes as pathways from income to young children’s development. Developmental Psychology, 38, 719– 734. Lindahl, K. M., & Malik, N. M. (1996). The System for Coding Interactions and Family Functioning. In. P. Kerig, & K. M. Lindahl (Eds.), Family observational coding systems: Resources for systemic research. (pp. 77–91). Mahwah, NJ: Erlbaum. Maccoby, E. E., & Mnookin, R. H. (1992). Dividing the child: Social and legal dilemmas of custody. Cambridge, MA: Harvard University Press. Marafiote, R. A. (1985). The custody of children: A behavioral assessment model. New York: Plenum Press. Multi Health Systems, Inc. (2006). MHS Catalog. North Tonawanda, NY: Author.
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Munsinger, H. L., & Karlson, W. (1994). Confirm child custody evaluation system (UCCES). Lutz, FL: Psychological Assessment Resources. NICHD Early Child Care Research Network. (2005). Predicting individual differences in attention, memory and planning in first grade from experiences at home, child care, and school. Developmental Psychology, 41, 99–114. NICHD Early Child Care Research Network. (2006). Infant-mother attachment classification: Risk and protection in relation to changing maternal caregiving quality. Developmental Psychology, 42, 38–58. Otto, R. K., Edens, J. F., & Barcus, E. H. (2002). The use of psychological testing in child custody evaluations. Family and Conciliation Courts, 36, 312–340. Ozawa, M. N., & Yoon, H. S. (2003). Economic impact of marital disruption on children. Children and Youth Services Review, 25, 611–632. Pearson Assessments Catalog. (2005). Pearson assessment. Minneapolis, MN: Author. Psychological Assessment Resources. (2006). PAR catalogue of professional testing resources. Lutz, FL: Author. Stahl, P. M. (1994). Conducting child custody evaluations: A comprehensive guide. Thousand Oaks, CA: Sage. Teachman, J. D., & Paasch, K. M. (1994). Financial impact of divorce on children and their families. In The Future of Children: Children and Divorce, 4. Princeton-Bookings Institute, Princeton, NJ. Available: www.futureofchildren.org. Totsika, V., & Sylva, K. (2004). The Home Observation for Measurement of the Environment revisited. Child and Adolescent Mental Health, 9, 25–35. Western Psychological Services. (2006). Western Psychological Services. Los Angeles: Author. Whiteside, M. F., & Becker, B. J. (2000). Parental factors and the young child’s post divorce adjustment: A meta-analysis with implications for parenting arrangements. Journal of Family, 14, 5–26. Zaslow, M. J., Weinfield, N. S., Gallagher, N., Hair, E., Ozawa, J. R., Egeland B., et al. (2006). Longitudinal prediction of child outcomes from differing measures of parenting in a low income sample. Developmental Psychology, 42, 27–37.
CHAPTER 4
Use of Psychological Tests in Child Custody Evaluations JONATHAN GOULD, DAVID A. MARTINDALE, and JAMES R. FLENS
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HIS CHAPTER DESCRIBES aspects of psychological testing employed in child custody evaluations. In the first section, we provide a conceptual model for assessment and explain the importance of selecting tests and measures based on sound psychological judgment and legal reasoning. In the second section we provide an in-depth discussion of the selection, administration, scoring, and interpretation of psychological tests in child custody evaluations.
CONCEPTUAL MODEL GUIDING PSYCHOLOGICAL ASSESSMENT IN CHILD CUSTODY EVALUATIONS Psychological assessment includes, but is not limited to, psychological testing (Meyer et al., 2001). Psychological testing is a relatively straightforward process. A particular test is administered to obtain a specific score. A descriptive meaning can be applied to the score based on data obtained from a normative group. This has been called nomothetic evaluation because the interpretation of the score is based entirely on comparison with the normative group. Interpretation does not include an examination of the individual’s score in the context of the person’s life. In child custody evaluations, most interpretations of individual psychological tests are nomothetic because they compare scores from each parent or child with scores from a normative group. In psychological assessment, the evaluator generally takes scores obtained from multiple test methods and considers ‘‘the data in the context of history, referral information, and observed behavior to understand the person being 85
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evaluated, to answer referral questions, and then to communicate findings’’ (Meyer et al., 2001, p. 131). This has been called idiographic evaluation because the assessment task is to understand the psychological test score in the context of the person’s life. The assessment task is to use test-derived sources of information in combination with historical data, presenting complaints, observations, interview results, and information from third parties to examine competing hypotheses about the subject’s psychology as it is pertinent to the referral question (Eyde et al., 1993; Heilbrun, 2001). Idiographic assessment requires a high degree of skill and sophistication (Meyer et al., 2001). In the context of child custody evaluations, the idiographic interpretation of psychological test data entails the integration of information from multiple sources that describe the parents, the children, and parent-child interactions. Idiographic interpretations found in child custody evaluations include integration of several nomothetic interpretations of independent test scores with collateral information, interview data, collateral record data, and clinical judgment. As forensic psychology is built on the foundations of clinical psychology, so too forensic psychological assessment is built on the foundations of clinical psychological assessment. Clinical psychological assessment is composed of clinical interviews and psychological measurement. Clinical interviews often are unstructured, and the client is free to guide the therapist toward clientdefined areas of relevance. Meyer et al. (2001) point out that clinical assessments are often limited when they rely only on unstructured interviews and observations: When interviews are unstructured, clinicians overlook certain areas of functioning and focus more exclusively on presenting complaints. When interviews are highly structured, clinicians can lose the forest for the trees and make precise but errant judgments. . . . Such mistakes may occur when the clinician focuses on responses to specific interview questions (e.g., diagnostic criteria) without fully considering the salience of these responses in the patient’s broader life context or without adequately recognizing how the individual responses fit together into a symptomatically coherent pattern. . . . Additional confounds derive from patients, who are often poor historians and/or biased presenters of information. (p. 135)
THE POTENTIAL POWER
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The authors of the Standards for Educational and Psychological Testing (American Educational Research Association, American Psychological Association, & National Council on Measurement in Education, 1999, p. 112) observe, ‘‘The greater the potential impact on test takers, for good or ill, the greater
Conceptual Model Guiding Psychological Assessment in Child Custody Evaluations 87
the need to identify and satisfy the relevant standards.’’ Extending that obligation further, the greater the potential impact on consumers of psychological services, for good or ill, the greater the need to adhere to established standards, to be responsive to applicable guidelines, and to endeavor to identify and subsequently utilize the best methodology possible.
CHOOSING ASSESSMENT INSTRUMENTS Do the psychological tests you have elected to utilize reliably measure functional abilities that bear directly on the matter before the court? LaFortune and Carpenter (1998, p. 222) list the seven most frequently used assessment instruments that ‘‘focus on parenting skill and the parent-child relationship’’ and that are ‘‘touted by their authors as helpful in clinical determinations of parental fitness.’’ LaFortune and Carpenter declare, ‘‘The validity of these measures is unestablished at best and seriously flawed at worst’’ (p. 222). Though the hope is expressed that improvements in these instruments may make them useful in the future, the authors conclude that their use at present ‘‘cannot be recommended’’ (p. 222). Similar concerns have been expressed by Otto (Otto, Buffington-Vollum, & Edens, 2003; Otto, Edens, & Barcus, 2000). Evaluators should obtain, review, and critically examine the documentation of assessment instruments under consideration and should select only those instruments whose reliability and validity are acceptable when used for the intended purpose. Although the frequency of their use is often referred to in justifying employing particular psychological tests in evaluations, we know of no text on assessment that includes ‘‘frequency of use by surveyed mental health professionals’’ as an acceptable measure of either the reliability or the validity of an instrument. The Standards for Educational and Psychological Testing (American Education Research Association et al., 1999) state: 1. Tests are to be accompanied by documentation that will provide test users with ‘‘the information needed to make sound judgments about the nature and quality of the test, the resulting scores, and the interpretations based on the test scores.’’ (p. 67) 2. ‘‘Presentation and analyses of validity and reliability evidence often are not needed in a written report, but the professional strives to understand, and prepares to articulate, such evidence as the need arises.’’ (p. 121) 3. ‘‘The greater the potential impact on test takers, for good or ill, the greater the need to identify and satisfy the relevant standards.’’ (p. 112)
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Functional Abilities To critically examine the roll of testing in custody evaluations, we must consider what type of information we are seeking, how tests may (or may not) assist us in gathering that information, and the ways each test type are deficient. The search for pertinent information is impeded when we look in the wrong places. A 1971 case before the U.S. Supreme Court that had nothing to do with custody work has had reverberations that were dramatically felt by evaluators. The Griggs decision (Griggs et al. v. Duke Power Co, 1971) focused on functional abilities. In Griggs, the Court ruled that ‘‘testing procedures must be demonstrably reasonable measures of (or predictors of) job performance.’’ Our endeavors to assess the characteristics that bear directly on parenting are more likely to meet with success if we conceptualize parenting as a job and focus our attention on those attributes, behaviors, attitudes, and skills that are reliably related to the demands of the job of effective parenting and on the assessment of the functional abilities that bear directly on those attributes. Examining an attribute in the absence of evidence of its connection to parenting effectiveness is not only irrelevant to the evaluation but may be prejudicial in that it suggests that basically irrelevant information should be considered in making a custody decision. Usefulness of Psychological Assessment Data Meyer et al. (2001) explain that the use of a psychological test battery provides an empirically based set of data that allows for more precise measurement of individual characteristics than is usually obtained from interviews alone. The use of multiple tests that make up a test battery allows for cross-checking of hypotheses. By incorporating multiple measures of multiple dimensions, evaluators are able to gather a wide range of information to increase their understanding of the evaluees as well as to facilitate an understanding of the comparative strengths and limitations of the evaluees. In assessing parenting strengths and deficiencies, this procedure makes it possible to compare each parent with the other and to compare each parent with the normative group. Use of a psychological test battery makes it possible to obtain data that shed light on a large number of personality, cognitive, emotional, and other dimensions at one point in time. Test batteries tend to be inclusive and tend to cover a range of functioning domains, many of which may be overlooked during less formal evaluation procedures. Test batteries are administered and scored by means of standardized procedures. Each evaluee is presented with a uniform stimulus that serves as a common yardstick by which to measure his or her characteristics. Standard administration and scoring procedures minimize the prospect that unintended bias may adversely affect the evaluee or the evaluator’s interpretation of the evaluee’s responses.
Conceptual Model Guiding Psychological Assessment in Child Custody Evaluations 89
Comparison of each evaluee’s data with context-specific normative data makes it possible to compare each evaluee with a relevant group of peers. The information obtained from such normative comparison allows the evaluator to formulate opinions concerning the strengths and weaknesses of evaluees. For example, both the Minnesota Multiphasic Personality Inventory 2 (MMPI-2) and the Millon Clinical Multiaxial Inventory III (MCMI-III) have context-specific normative data. Each test has normative data reported for male and female custody litigants. Use of these normative data allows the evaluator to consider the degree to which a particular evaluee’s scores deviate from the context-specific normative group. An experienced evaluator is able to examine subtle differences in the data obtained that may be relevant to questions about individual functioning along relevant dimensions associated with parenting. Manuals for psychological tests used in a forensic evaluation should have information about reliability and validity. Such psychometric information allows the evaluator to consider the strength and limitations of the information obtained from the test. Without such information, evaluators have little ability to gauge the accuracy of the data they interpret when making judgments. The use of psychological testing in child custody evaluations is a standard procedure among psychologists (Ackerman & Ackerman, 1997; Bow & Quinnell, 2001; Quinnell & Bow, 2001), although the frequency of use of specific psychological tests has been challenged (Hagen & Castagna, 2001). In its Model Standards of Practice for Child Custody Evaluation the Association of Family and Conciliation Courts (AFCC, 2006) declares: The use of formal assessment instruments is not always necessary. Where those who are legally permitted to administer and score psychological assessment instruments elect not to do so, they shall recognize that they may be called upon to articulate the basis for that decision. (Model Standard 6.1)
Multitrait/Multimethod Assessment Forensic assessment is premised on the idea of seeking convergent and divergent validity. A satisfactory forensic evaluation contains multiple sources of information from independent sources of data. This is referred to as the multitrait/multimethod model of assessment (Campbell & Fiske, 1959) and has been applied to child custody assessments (Schutz, Dixon, Lindenberger, & Ruther, 1989). A critical issue in the use of a multitrait/multimethod model is the extent to which distinct assessment methods provide independent rather than redundant information. It is important to recognize that more data do not always create a more accurate picture. For example, when using two tests that are intercorrelated, the predictive power of the two tests combined may be lower
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than the predictive power of one test that is more psychometrically sound (Borum, Otto, & Golding, 1993). The idea behind multitrait/multimethod assessment is to increase the predictive power of the data. If a method does not increase our ability to predict the behavior of interest, then there is no incremental validity derived from the use of the method. Use of identical information-gathering procedures with different information sources often yields contradictory information. For example, information provided through the use of questionnaires that are completed by siblings, aunts, uncles, teachers, coaches, youth counselors, therapists, and other people outside the family system may provide descriptions of specific behaviors that are quite different from the descriptions provided by the parents. CHOOSING WISELY Two decades ago Lanyon (1984, p. 690) observed that psychologists do not do well at selecting valid instruments and rejecting unsuitable instruments: ‘‘The consumer professionals are generally unable to discriminate among [the various available instruments] and are predisposed to believe whatever is printed.’’ There is no indication that in the past 2 decades test purchasers have become more discriminating. Our experience as reviewers of colleagues’ advisory report is that many mental health professionals do not even read the manuals that accompany the assessment instruments they use. In 1997 Ackerman and Ackerman reported that 4% of the ‘‘experienced professionals’’ responding to their survey utilized the Custody Quotient (CQ). Four years later, Quinnell and Bow (2001) reported that 2% of those responding to their survey were using the CQ. What makes these data noteworthy is the fact that a very conspicuous warning appears in the manual for the CQ (Gordon & Peek, 1988) that unambiguously describes it as a research instrument that has not yet been fully developed. Peek (personal communication, September 4, 2004; cited with permission) continues to maintain that the CQ remains an undeveloped instrument and that he himself would not consider utilizing in a custody evaluation. In her review of the CQ for The Eleventh Mental Measurements Yearbook, Bischoff (1992, p. 255)] wrote, ‘‘No predictive validity and scant reliability data are available at the present time.’’ Although, to the best of our knowledge, no applicable survey data are available, we believe it to be common knowledge that some mental health professionals endeavoring to assess risk of child sexual abuse have used the Child Abuse Potential (CAP) Inventory (Milner, Gold, & Wimberley, 1986; Milner, 1989) and have cited the data in articulating the bases for whatever opinions are expressed. It is made quite clear in the manual for the CAP
Conceptual Model Guiding Psychological Assessment in Child Custody Evaluations 91
Inventory that it is for use in assessing risk of child physical abuse and not for assessing risk for child sexual abuse. THE MYTH
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OBJECTIVE TESTS
Certain tests are often described as ‘‘objective.’’ True, the data are what they are, so in that respect the tests are objective. But psychologists must make decisions about the meaning of these data, and at that point, subjectivity comes into play. Subjective decisions are made when testers address questions such as ‘‘If validity indicators are not elevated, should we presume that a test taker’s statements about his or her behaviors, beliefs, fears, desires, and so on accurately reflect his or her behaviors, beliefs, fears, desires, and so on?’’ Similarly, when, for whatever reason, cutoff points are adjusted, we alter the probability of Type I errors and Type II errors. Though most mental health professionals recognize the role of inferential reasoning in the interpretation of projective test data, many are inattentive to the ways evaluator judgment is involved when we use objective tests. PROJECTIVE TESTS In a treatment setting, projective tests can be of great value in facilitating the formulation of hypotheses that, as treatment progresses, the clinician can further investigate. In a forensic setting, in which one is expected to formulate opinions that can be expressed with a reasonable degree of professional certainty, self-report inventories offer clear advantages. The data obtained by means of such assessment devices are insulated from possible examiner bias; therefore, in forensic settings they are superior to assessment instruments constructed to permit examiner subjectivity to affect the data collection process or the scoring. In a treatment setting, a psychological assessment marks the beginning of an ongoing relationship in the course of which there will be opportunities for subsequent reassessment. As new information disconfirms old hypotheses, appropriate adjustments can be made. In a forensic setting, the report in which one’s assessment is described marks the end of a relationship. No opportunities to reassess are provided. In reading advisory reports, it is not uncommon to find assessment instruments referred to in a manner suggesting that the information obtained through their administration constitutes a data source separate from the evaluator’s clinical impressions. In some assessment techniques (the Draw-APerson technique being perhaps the best example), the evaluator is the instrument. It is, therefore, disingenuous at best to speak of one’s clinical impressions and assessment results as though each was independent of the
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other. The influence that an examiner has on the data obtained through any assessment instrument can be seen in interjudge reliability coefficients. Where significant clinical judgment is required, reliability coefficients are typically low. We will return to a more in-depth discussion of the usefulness of projective testing later in the chapter. ADMINISTRATION ISSUES Kevin Moreland, former member of the Pearson Assessments (formerly NCS) staff and the MMPI-2 restandardization team, observed that ‘‘in responding to questions, examiners may inadvertently hint at the nonpathological answer when the test taker is someone whose position they favor (whether it be a custody case, injury case, or whatever).’’ He added, ‘‘Neither NCS nor the Eydegroup has told test-givers how to deal with questions from test-takers’’ (e-mail from Kevin Moreland, August 22, 1996; reprinted with permission). When consulting the MMPI-2 User’s Guide [for] the Minnesota Reports for Forensic Settings (Butcher, 2000, p. 7) test users will encounter the admonition ‘‘Provide clear instructions.’’ Ironically, the instructions given to the practitioner are unclear. The author observes that ‘‘it may be tempting to allow the subject to figure out the instructions on his or her own by reading the booklet . . . [but a] more effective administration system incorporates a trained person . . . to explain the test instructions clearly’’ (p. 7, emphasis added). The words ‘‘DO NOT OPEN UNTIL TOLD TO DO SO’’ appear (entirely in uppercase letters) across the top of the booklet. Because the MMPI-2 is not timed, these words suggest that the ‘‘trained person’’ should read the instructions aloud and then (with trepidation) ask, ‘‘Do you have any questions?’’ If the instructions are as clear as they should be, nothing in them should require explanation. If experience has shown that the instructions are not free of ambiguity, they should be modified, and in the meantime users should be provided with a list of frequently asked questions, accompanied by appropriate responses. The Standards for Educational and Psychological Testing (American Educational Research Association et al., 1999, p. 61) state, ‘‘When directions to examinees, testing conditions, and scoring procedures follow the same detailed procedures, the test is said to be standardized. Without such standardization, the accuracy and comparability of score interpretations would be reduced.’’ DISTINGUISHING TESTS FROM OTHER CREATURES The portion of an advisory report in which evaluators outline assessment data and offer interpretations of those data is fertile ground for the operation of confirmatory bias and confirmatory distortion, that is, the tendency to collect
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and interpret data in a manner that supports one’s current understanding of the situations (see Galatzer-Levy, Gould, & Martindale, Chapter 1). It is not uncommon to encounter discussions of assessment data under a heading such as ‘‘Test Results.’’ Readers of reports may mistakenly presume that there is no room for deliberate distortion in the reporting of test results and only minimal room for subjectivity. Referring to an instrument as a ‘‘test’’ suggests precision. Evaluators may describe as ‘‘tests’’ assessment devices that are far from precise. The generally agreed upon definition of ‘‘test’’ is to be found in the introduction to the most recent edition of the Standards for Educational and Psychological Testing (American Educational Research Association et al., 1999, p. 3): ‘‘A test is an evaluative device or procedure in which a sample of an examinee’s behavior in a specified domain is obtained and subsequently evaluated and scored using a standardized process.’’ The importance of standardization is emphasized: ‘‘In all cases . . . tests standardize the process by which test taker responses to test materials are evaluated and scored’’ (p. 3). Further, those who utilize various assessment devices are reminded that ‘‘the applicability of the Standards to an evaluation device or method is not altered by the label applied to it’’ (p. 3). Presumably, this reminder is intended to exhort mental health professionals to choose assessment instruments based on ‘‘written documentation on the validity and reliability of [those instruments] for the specific use intended’’ (American Educational Research Association, American Psychological Association & National Council on Measurement in Education, 1985, p. 41). Some of the instruments utilized by evaluators are not accompanied by any documentation relating to validity or reliability. In commenting on projective devices, Anastasi (1988, p. 614) opines, ‘‘The final interpretation of projective test responses may reveal more about the theoretical orientation, favorite hypotheses, and personality idiosyncrasies of the examiner than it does about the examinee’s personality dynamics.’’ Even those who feel that Anastasi overstates the case against projective assessment devices would presumably agree that in the interpretation of a test taker’s responses there is ample room for confirmatory bias or confirmatory distortion to operate. The use of self-report inventories (often referred to as objective tests) and the use of computer-generated interpretive reports has been the subject of considerable discussion (Butcher, 2003; Eyde, Kowal, & Fishburne, 1991; Fowler, 1969; Moreland, 1985; Otto & Collins, 1995; Otto et al., 2000). Commenting on self-report inventories, Millon (1997, p. 7) states: There are distinct boundaries to the accuracy of the self-report format; by no means is it a perfect data source. Inherent psychometric limits, the tendency of similar patients to interpret questions differently, the effect of current affective
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states on trait measures, and the effort of patients to affect certain false appearances and impressions all lower the upper boundaries of this method’s potential accuracy.
Evaluators seldom report all the data that are generated from such instruments. They also rarely entirely exclude these data. Instead, they tend to cite those data that they deem pertinent, thus introducing the risk of confirmatory bias. COMPUTER-GENERATED INTERPRETIVE REPORTS The use of computer-generated interpretation may inappropriately suggest a degree of validity and objectivity that the report does not, in fact, possess. Evaluators who use computerized scoring services but who interpret the data independently may be selectively attentive to supportive data. Additional reasons, not the least of which is ‘‘the effect of current affective states on trait measures’’ (Millon, 1997, p. 7), should lead evaluators to review interpretive reports with care. Standard 9.09(c) of the psychologists’ Ethics Code reminds psychologists that they ‘‘retain responsibility for the appropriate application, interpretation, and use of assessment instruments, whether they score and interpret such tests themselves or use automated or other services’’ (American Psychological Association [APA], 2002, p. 1072). The scientific aura surrounding computer-based interpretations is partly based on an inattention to how these interpretations are validated. Writing on the validity and utility of computer-based test interpretations, Butcher, Perry, and Atlis (2000, p. 10) observe, ‘‘In most published studies of CBTI [Computer Based Test Interpretation] validity, the CBTIs’ recipients (usually clinicians) rate the accuracy of computer interpretations on the basis of the clinicians’ knowledge of test respondents.’’ But, of course, this means that the computer reports can be no more valid than the clinical judgments that are used as the standard and hence are subject to all the problems associated with such judgments. Including computer-generated interpretative reports in the body of a report creates difficulties. First, it is an act of plagiarism to insert the entire computer-generated report into a report and present it in a way that the reasonable reader would infer that the interpretive statements had been developed by the practitioner. The psychologist who clearly attributes authorship of the report to the developer of the program that created it may be out of compliance with Standard 9.09(c) of the psychologists’ Ethics Code. Second, Butcher (Butcher et al., 2000, p. 15), whose program generates some of the best computer-based reports, opines, ‘‘Computer generated reports should be viewed as valuable adjuncts to clinical judgment rather
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than [as] ‘stand alone’ substitutes for a skilled clinician. . . . Responsibility for the appropriate application, interpretation, and use of automated reports requires using clinical judgment.’’ This admonition suggests that a practitioner should examine the report, decide which portions are descriptive of the examinee and which are not, and, after having made these clinical decisions, employ only those descriptors that the examiner believes to be accurate. But Butcher et al. call attention to the unfortunate reality that ‘‘attempting to tailor test results to unique individual characteristics is a complex process and may not always increase their validity’’ (p. 15). This suggests that a blind analysis of the test data will at times yield a more accurate description of the examinee than an analysis that represents the combined efforts of computer and clinician. Clinician modifications of computer-generated statements introduce an element of subjectivity that creates a risk of lowered validity. Essentially the evaluator is in many ways in a ‘‘damned if you do, damned if you don’t’’ position when it comes to computer-generated reports. The problems associated with the use of computer-generated reports are the subject of ongoing debate. Pope, Butcher, and Seelen (2000, p. 35) remind consumers of CBTIs that ‘‘commercially available systems differ with respect to the information presented and the accuracy of the interpretations.’’ Standard 9.09(b) of the psychologists’ Ethics Code states, ‘‘Psychologists select scoring and interpretation services (including automated services) on the basis of evidence of the validity of the program and procedures as well as on other appropriate considerations’’ (APA, 2002, p. 1072). It is our contention that practitioners cannot ‘‘select scoring and interpretation services’’ and make their decisions ‘‘on the basis of evidence of the validity of the program’’ when the only data that have been published are more accurately described as ‘‘user satisfaction data’’ than as ‘‘validity data.’’ Stephen Behnke (2004, p. 58), APA ethics director, interprets the phrase ‘‘other appropriate considerations’’ as a reference to ‘‘the purpose . . . for which the service is used.’’ Behnke explains: ‘‘The sort of evidence required by a psychologist who simply wants to generate and test hypotheses’’ (p. 58) may be different from the evidence that might be required under other circumstances. He adds that ‘‘there is little downside to having additional hypotheses that the psychologist can disregard if they do not fit with other data’’ (p. 58). This may be true in clinical situations, where hypotheses are put to the test of further clinical observation. But in a forensic context such generation of additional hypotheses may be far from benign: It may contribute to confirmatory bias. Lawyers and judges reading these hypotheses, no matter how clearly labeled, are very likely to treat them as confirmed facts, especially if they are generated by scientific-seeming tests scored using computers.
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James Butcher has pointed out that the appropriate use of computerized reports is no different from a clinician’s consultation of a MMPI-2 textbook or code book in profile interpretation. However, a practitioner utilizing a respected text and generating his or her own interpretive statements can explain the bases for the statements offered and can, if called on to do so, cite the specific pages on which pertinent information can be found. Companies that produce computer-generated interpretive reports protect their proprietary rights to the program’s decision rules. The user of an interpretive report cannot identify the data patterns that have triggered the computer to produce a particular descriptive statement and so is not in a position to criticize or rationally defend the report’s validity. PSYCHOMETRICS The psychometric qualities of a test refer to its statistical properties. There is a simple rule regarding the psychometric properties of psychological tests: A test can only be as valid as it is reliable. In other words, if a test has poor reliability, it also has poor validity (Otto et al., 2000). A test must measure something consistently in order to measure it accurately. The converse, however, is not always true: A test may be very consistent, but that does not mean it measures anything accurately. (Think of a broken clock that consistently shows the same time but that, for precisely this reason, gives no information about the actual time.) Though psychological testing is the most scientifically based of the various methodologies used in a forensic context (i.e., interview, observation, testing, third-party data), it cannot be concluded that it is necessarily the most useful (Martindale, 2005). The process of developing a test involves multiple research studies to establish the item content, the psychometric qualities, and the actual meaning of the test scores. Together these investigations should show what a test measures and how well it is measured. But none of this speaks to the relevance of these measures to custody issues. For example, a test may indicate that a person is very likely to have some personality trait but leave unanswered the question of whether that trait is relevant to parenting capacities. In addition, because the qualities measured by psychological tests are often named after elements of psychopathology, even though the test measures something other than that psychopathological quality, nonexpert readers of some test reports often believe that the results show a much higher degree of psychological disturbance than the test actually indicates. The combination of their scientific status, lack of clarity about their relationship to custody issues, and use of the language of psychopathology all tend to give tests more weight in court than they deserve. This weight is often in a negative direction.
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TESTING MANUAL AND TESTING MATERIALS Much of the weight of psychological tests rests in their standardization, that is, that they are performed and scored in a well-defined, regular way that is consistent with the studies showing their reliability and validity. The proper use of psychological tests in custody evaluation requires that evaluators carefully use the tools provided by the test developer to achieve valid measures. Test manuals contain information about how tests have been developed and about the assumptions underlying the meaning of scores. Manuals should also contain information about the strengths and weaknesses of the tests, information about application in particular populations, and information about how to interpret scores. Most important, they describe how the test should be administered and scored. Some evaluators do not own and have not read the manuals of the tests they administer (Bow, Flens, Gould, & Greenhut, 2006). Others fail to read the statistical information in the manual, although this is the part of the manual that most directly addresses the questions of validity that are central to the evidentiary value of the tests. Many test manuals are continually updated and include new information regarding the psychometric qualities of the tests; the MMPI-2 and MCMI-III are good examples. Evaluators who have not read the most recent editions of the tests they use are very likely unfamiliar with significant changes in the test. For example, one evaluator used the Parenting Stress Index (PSI) with both parents in a case involving a 9-year-old child. The evaluator was not aware that the normative data for the PSI do not include fathers and that the supplemental data on fathers included children only up to age 6 years. Good tests are accompanied by detailed careful manuals and well-defined test materials to ensure that, within reason, each person evaluated is given essentially the same test. For this reason evaluators should use only the forms and materials provided by the testing company. Detailed manuals are provided for reference and should be reviewed as needed. Although it is highly relevant to the credibility of an evaluator whether he or she has followed the manual in conducting a test, it is neither reasonable to expect nor relevant to explore in testimony whether an evaluator has essentially memorized the manual in all its details, as this capacity has little to do with whether the testing was properly performed and scored.
SELECTING TESTS FOR CUSTODY EVALUATIONS There are two different models for selecting psychological tests in child custody evaluations, for which we have deliberately chosen provocative names.
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1. Scientist-practitioner model:1 In this model, the evaluator selects testing methodologies based on the psycholegal issues involved in the specific case and the psychometric qualities of the particular tests. Using the scientist-practitioner model permits the evaluator to answer questions regarding a test’s appropriateness for use in an evaluation from both legal (i.e., relevance and helpfulness) and psychological (i.e., reliability and validity) perspectives. 2. Lemming syndrome model: In this model, testing methodologies are selected based on frequency-of-use data reported in published surveys of custody evaluators, common local practice, or judges’ expectations. Although the lemming syndrome model is consistent with the Frye (Frye v. United States, 1923) standard for expert evidence (i.e., it does show that similarly positioned practitioners employ a particular method), it only very indirectly addresses questions of relevance, helpfulness, reliability, or validity that are (or should be) of central importance to the evaluator. A psychological test has little value if it does not measure something consistently and accurately. Heilbrun (1992) and Otto et al. (2000) recommend that tests should be commercially available and have an accompanying manual. However, these criteria do not guarantee that the test is reliable, valid in general, or valid for specific use in a child custody evaluation. Publishers of psychological tests are in the business of making money; colorful brochures and catchy phrases are marketing tools that should have no bearing on an evaluator’s decision to use a test. As noted by Martindale (2001, p. 500), ‘‘The frequency with which certain instruments are utilized may be attributable more to marketing and related phenomena than to psychometric integrity.’’ The selection of psychological tests for a child custody evaluation should be based on the specific questions identified by the court or the attorneys that are the focus of the forensic investigation. Each test manual should be examined for the degree to which its methodology is consistent with the state’s evidentiary requirements for a reliable scientific procedure. Most states have statutes, case law, or rules of evidence that define legal reliability. (Keep in mind that the term ‘‘reliability’’ has a different meaning in psychology than in law. In psychology it refers to the extent to which repeated measurements provide the same results. In law it refers to the extent to which a trier of fact should rely on particular testimony.) Tests are usually evaluated as an entire unit regarding their reliability and validity. Elements of such tests have generally not been shown to be reliable and valid, so evaluators should not attempt to cobble together elements of reliable and valid tests to create a homemade test battery. Courts have frowned on such creative choices. In Chapple v. Ganger (1994), a personal
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injury case, criteria mandated by Daubert v. Merrell Dow Pharmaceuticals (1993) were applied to the use of fixed (standardized) versus flexible (nonstandardized) neuropsychological test batteries. The court gave far greater weight to the results of the fixed battery than to the results obtained from two flexible neuropsychological test batteries. The district judge noted the lack of medical and scientific evidence to support the conclusions made by the plaintiffs’ two expert witnesses, a psychologist and a neuropsychologist, even though each had administered a comprehensive and flexible neuropsychological test battery and had based their conclusions on the test results. However, the judge accepted as scientific evidence the test results obtained from a fixed test. Applying the Daubert criteria to the neuropsychological test results and opinions of the expert witnesses, the district judge held that the entire reasoning process and not simply part of the reasoning process on which the expert witness derives a conclusion must reflect the correct application of a reliable scientific methodology. Test selection may also be guided by statutory or case law definitions of the best interests of the child. For example, if a state’s best interests statute contains language alluding to the psychological and emotional health of the parents, tests should be selected that (a) measure adult psychological and emotional functioning and (b) have been accepted as a scientific instrument by the courts in the jurisdiction in which the dispute is being adjudicated. ETHICAL CONSIDERATIONS The following two sections of the 1992 APA Ethics Code related to psychological testing were deleted in the 2002 revisions:
1. 2.01 Evaluation, Diagnosis, and Intervention in Professional Context (a) Psychologists perform evaluations, diagnostic services, or interventions only within the context of a defined professional relationship. (See also Standard 1.03, Professional and Scientific Relationship.) 2. 2.04 Use of Assessment in General and With Special Populations (a) Psychologists who perform interventions or administer, score, interpret, or use assessment techniques are familiar with the reliability, validation, and related standardization of outcome studies of, and proper applications and uses of, the techniques they use. (b) Psychologists recognize limits to the certainty with which diagnoses, judgments, or predictions can be made about individuals. (c) Psychologists attempt to identify situations in which particular interventions or assessment techniques or norms may not be applicable or may require adjustment in administration or interpretation because of factors such as individuals’ gender, age, race, ethnicity, national origin, religion, sexual orientation, disability, language, or socioeconomic status.
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These sections of the 1992 APA Ethics Code were directly related to issues associated with the psychometric qualities of the tests that psychologists use in all settings, not just child custody evaluations. We have expressed concern about why the APA would eliminate those sections from the Ethics Code that specifically address reliability, validity, and context-specific variables that might affect the confidence and certainty that can be placed in test results, that is, precisely the questions a court should ask in deciding whether to rely on a psychological expert’s testimony (Gould & Martindale, 2007; Martindale & Gould, 2004). The APA’s 2002 revision left the following section unchanged from the 1992 version:
1. 9.02 Use of Assessments (a) Psychologists administer, adapt, score, interpret, or use assessment techniques, interviews, tests, or instruments in a manner and for purposes that are appropriate in light of the research on or evidence of the usefulness and proper application of the techniques.
Table 4.1 Criteria of Psychological Tests for Use in Forensic and Custody Evaluations Heilbrun (1992)
Otto, Edens, and Barcus (2000)
Test must be commercially available.
Is the test commercially published?
Test must have published manual describing development, psychometric properties, and procedures for administration.
Is a comprehensive test manual available?
Test-retest reliability is a least 0.80.
Are adequate levels of reliability demonstrated?
There is ongoing research exploring the test’s usefulness (validity).
Have adequate levels of validity been demonstrated?
The test must be relevant to the legal issue or to a psychological construct underlying a legal issue.
Is the test valid for the purpose for which it will be used?
There is standard administration.
What are the qualifications necessary to use this instrument?
Test is reviewed in peer-reviewed journals.
Has the instrument been peer-reviewed?
Test must have measures of response style.
Not addressed by Otto et al.
Note. From ‘‘The Role of Psychological Testing in Forensic Assessment,’’ by K. Heilbrun, 1992, Law and Human Behavior 16(3), p. 257; ‘‘The Use of Psychological Testing in Child Custody Evaluations,’’ by R. K. Otto, J. F. Edens, and E. H. Barcus, 2000, Family & Conciliation Courts Review, 38(3), pp. 312–340.
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Thus in selecting psychological tests for a child custody evaluation, the evaluator is ethically obliged to use tests ‘‘appropriate in light of the research on . . . the technique[s]’’ or ‘‘appropriate . . . in light of the evidence of the usefulness and proper application of the technique[s].’’ The standard is mute as to the nature of the required research and evidence of usefulness to which it refers. As discussed later, Heilbrun (1992) developed specific criteria for using tests in a forensic context. Otto, Edens, and Barcus (2000) have adopted Heilbrun’s model to custody evaluations in the form of a series of questions the evaluator should address (see Table 4.1).
ADDITIONAL PRACTICAL STEPS Literature searches for information about the psychometric integrity of the tests chosen for use in each forensic evaluation ensure that the evaluator is current in published research about the instruments used. Directly writing to the test author or test publisher for new information about the test is often fruitful. The forensic psychology literature includes information about a test’s admissibility under differing legal criteria (i.e., Frye test, Daubert, flexible criteria). Among the articles that we believe are important to have reviewed are the use of Human Figure Drawings (Lally, 2001), the use of the MCMI-III (McCann, 2002; McCann & Dyer, 2002), the use of the MMPI-2 (Otto, 2002), the use of the Rorschach (Gacono, Evans, & Viglione, 2002; McCann, 1999; see Grove & Barden, 1999; Grove, Barden, Garb, & Lilienfeld, 2002; and Wood, Nezworski, Lilienfeld, & Garb, 2003, for an opposing view; and Ritzler Erard, & Pettigrew, 2002a, 2002b, for replies), and the use of child custody–specific tests (e.g., the Bricklin scales, the Ackerman-Schoendorf Parent Evaluation of Custody Test [ASPECT] Otto et al., 2000). Excellent independent critical reviews of psychological tests are available from Buros Mental Measurements Yearbook and Tests in Print. In some situations, a review of case law may also be useful because some psychological instruments may have been found to be admissible in a particular state’s courts as a scientific instrument whereas other commonly used psychological instruments may have been found to be inadmissible as scientific instruments. It is important for the prudent custody evaluator to have a balanced understanding of the literature on a particular assessment methodology that includes both supportive and critical reviews. The least opportune time to learn about a body of literature critical of chosen tests is on the witness stand.
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GENERAL PROBLEMS WITH TESTS IN CUSTODY EVALUATION Several studies have looked at assessment methodology in the child custody context in terms of the use of psychological tests (Ackerman & Ackerman, 1997; Bow & Quinnell, 2001, 2002; Horvath, Logan, & Walker, 2002; Karras & Berry, 1985; Keilin & Bloom, 1986; Quinnell & Bow, 2001). The tests used in custody evaluations are of two kinds: tests primarily designed to evaluate psychological qualities whose results are applied to custody issues and tests designed primarily to address custody issues. More than 20 years ago, Keilin and Bloom (1986) reported survey data from child custody evaluators indicating that approximately 75% of respondents used testing with parents and children. The MMPI-2, the most common test used with parents, was employed by approximately 33% of the respondents. In a follow-up study, Ackerman and Ackerman (1997) found that custody evaluators spent an average of 5.2 hours doing psychological testing. The Hagan and Castagna (2001) study raised the issue of ‘‘standard of practice’’ based on the Ackerman and Ackerman data. In a reanalysis of the Ackerman data, the authors found that none of the tests—except the MMPI-2—reached a level of usage consistent with a standard of practice. The use of psychological tests in child custody evaluations has been criticized (Brodzinsky, 1993; Grisso, 1986, 2003; Melton, Petrila, Poythress, & Slobogin, 1997). Early criticism focused on the selection of inappropriate tests and the use of psychological test data to develop diagnostic impressions that were misleading, pejorative, or invalid (Grisso, 1986). Other criticisms pointed to overutilization of psychological tests without psycholegal relevance (Brodzinsky, 1993; Melton et al., 1997). Recent research, however, has found that current child custody evaluation practices are less problematic with regard to these matters (Ackerman & Ackerman, 1997; Bow & Quinnell, 2001, 2002; Horvath et al., 2002; Quinnell & Bow, 2001). LaFortune and Carpenter (1998) voiced concern over how evaluators’ interpretation of data drawn from the use of psychological procedures were applied to custody decisions with little concern for the validity of such opinions. They wrote: Even with this large number of diverse findings, a number of general conclusions emerge from the data. . . . Although tests play a smaller role than interviews and observation, many experts employ procedures with little or no know [sic] valid basis for informing custody decisions. (p. 221)
Quinnell and Bow (2001, p. 498) compared the results of their survey study to the studies by Ackerman and Ackerman (1997) and Keilin and Bloom (1986) and noted the following:
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First, participants in the study only ranked psychological testing as moderately important (fourth and sixth) among ten main custody evaluation procedures. . . . These findings suggest that psychological testing is no longer the primary procedure in custody evaluations; but instead is used to supplement other procedures or to create ‘‘working hypotheses,’’ as defined by Heilbrun (1995).
Custody-specific tests (e.g., Bricklin Scales, ASPECT) are more problematic than other psychological tests. Otto et al. (2000) observe: Although these tests have good face validity (i.e., their item content makes senses and appears to assess factors relevant to child custody decision making), significant questions remain regarding their utility, and their appropriateness for use in custody evaluations at the present time. . . . In essentially every published review of these custody assessment instruments, concerns about their reliability and validity have been identified, and the need for research has been made clear. Unfortunately, child custody evaluators continue to wait for that research. (pp. 317, 336)
Looking at the issue from the point of view of completed custody evaluations Horvath et al. (2002) came to the somewhat surprising finding that custody evaluators may actually not use enough psychological testing in child custody evaluation cases. They regard psychological testing, along with standardized interviews and behavioral assessment instruments, as important ‘‘independent anchors’’ that were often missing from the assessments they reviewed. In another review of custody evaluations, Bow and Quinnell (2002, p. 174) found results similar to those of the Quinnell and Bow (2001) study, and noted, ‘‘In general, psychological test findings were not given undue weight and reviewed as one data source.’’
ADMINISTRATION AND SCORING Administration and scoring receive little attention in the professional literature. However, the U.S. Supreme Court regarded them as important enough to include in the Daubert (1993) decision. The Court noted that in determining admissibility of expert testimony the trial court could consider the following: ‘‘In the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, and the existence and maintenance of standards controlling the technique’s operation’’ (p. 594). The ‘‘standards controlling’’ the tests we use in child custody evaluations involve appropriately used administration techniques and scoring methods.
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Almost every textbook on psychological testing describes the need for evaluators to use the standardized instructions when administering psychological tests. Failure to use the standardized instructions reduces the evaluator’s ability to use the appropriate normative data, so that the test results could be rendered uninterpretable. Any changes in administration or other variables that could affect the resulting test data and its interpretation must be noted in the report. (This expectation is supported by the APA’s 1992 Ethics Code.) OUT
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Tests should be administered in a controlled environment, typically a quiet room with no interruptions. Bow, Flens, Gould, and Greenhut (2006) report that about 10% of evaluators have parents complete psychological tests in an open waiting room where people come and go from and to other offices, which is neither particularly quiet nor free from distraction. As the APA’s 1994 Ethics Committee found (with emphasis on the MMPI but not limiting their findings to that test), parents should never be allowed to take tests home because this leads to nonstandard administration and compromises the security of the test. USE
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Two MMPI-2 studies (Butcher, Morfitt, Rouse, & Holdren, 1997) have looked at altered instruction sets during readministration of the test after an individual has produced an ‘‘invalid’’ profile. Although both of these studies involved situations in which the tests were being used for personnel selection, they may be relevant to child custody evaluations. In these studies, invalid tests were determined with various cutoff scores on the L and K scales. The first study used an L scale > 65T or a K scale > 70T to establish an invalid profile. The second study used a more stringent set of criteria to determine the profile’s invalidity: an L 76; K 72, or false percent > 74%. Both studies showed a statistically significant reduction in the validity scales after readministration of the test (i.e., the test results appeared more valid as measured by the tests’ internal scales). In addition, several clinical scales showed statistically significant differences. However, these changes, though statistically significant, are probably not clinically significant. Readministration of psychological tests continues to be a matter of debate. To date, no standard directions have been developed for use in a readministration. Without standard directions that have been examined against their effect on test scores, it is not possible to know how nonstandard directions given in a readministration might affect test scores. Recalling the earlier
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discussion about the use of homemade testing procedures, the use of nonstandard readministration directions may be an incorrect application of a reliable scientific procedure or a methodology of unknown reliability. TEST SCORING Scoring a standardized test may be done by hand, using the manual as a guide for proper scoring, or by using software that allows both administration and scoring of the test via computer. Hand scoring carries with it a greater likelihood of error and so requires scrupulous attention to accuracy. The more complex the scoring procedure, the more likely there are to be errors (Simons, Goddard, & Patton, 2002). Hand scores should be double-checked. Some research suggests that errors in scoring the protocol are directly related to the complexity of the scoring procedure and the layout of the protocol. The manual for the MCMI-III (Millon et al., 1997, p. 112) states, ‘‘Hand scoring [the MCMI-III] is a very complex procedure that commonly results in scoring errors. Each test should be scored twice to increase accuracy.’’ Similarly, Graham (2000, p. 17) observes, ‘‘Although hand scoring the MMPI-2 is a simple clerical task, it should be completed with great care, as counting and recording errors are rather common.’’ Though the problems associated with hand scoring are reduced by computer scoring, computer scoring is not a panacea. It is important that manual input of test data into a scoring program be verified using procedures recommended in the manual. Some computer programs have verification modes which require the data to be entered twice before the program scores the profile. Failure to use the verification procedure may result in data errors. The use of unofficial scoring programs can also cause problems.2 Even though they cost less than sanctioned programs their use introduces unnecessary complications in forensic evaluations and they should be avoided. INTERPRETATION Interpretation of any test requires an understanding of several variables that could impact the test data and their interpretation. Among these variables are the population being evaluated, contextual variables, response style, and context-specific normative data. Population and Contextual Variables What do we really know about the population of people evaluated in contested child custody cases? We know something about how male (Bagby, Nicholson, Buis, Radovanovic, & Fidler, 1999; Bathurst, Gottfried, & Gottfried, 1997; Butcher, 1997; Posthuma
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& Harper, 1998; Schenk, 1996; Strong, Greene, Hoppe, Johnston, & Olesen, 1999) and female (Halon, 2001; Lampel, 1999; McCann & Flens, 1998; McCann et al., 2001) custody litigants perform on a few psychological tests. But for the most part, the answer is ‘‘not much.’’ Contested child custody cases involve only a small fraction of divorce cases involving children, and among that small fraction an even smaller fraction of contested cases are heard in court. We know little about the situational and contextual variables associated with this small group of people involved in child custody litigation. Situational and Contextual Variables The APA (2002, p. 24) Ethics Code speaks to the issue of these threats to the reliability of test data and interpretations: When interpreting assessment results, including automated interpretations, psychologists take into account the purpose of the assessment as well as the various test factors, test-taking abilities, and other characteristics of the person being assessed, such as situational, personal, linguistic, and cultural differences, that might affect psychologists’ judgments or reduce the accuracy of their interpretations. They indicate any significant limitations of their interpretations.
The most important situation variable in custody litigation is the stress placed on the parents by the divorce, litigation, personal living arrangements, and particularly the loss or diminution of their relationship with their children. Though responses to stress vary among individuals, the presence of stress is almost universal in divorce. Many parents exhibit increased competitiveness during divorce because they come to view the custody litigation as a contest that may result from external contextual factors. The legal system engenders a win-lose attitude, which is likely to be particularly prevalent among those involved in custody litigation because they have usually failed to reach an agreement through mediation or a collaborative process. Evaluators may communicate that their work pits one parent against the other by focusing on allegations rather than focusing on developing a postdivorce parenting plan (Benjamin & Gollan, 2003). Some state laws provide financial incentives to the nonresidential custodial parent if he or she spends ‘‘a substantial amount of time’’ with the child and so create an incentive to fight for more visitation and access time. The media have created an image of divorce and custody cases in movies such as Kramer versus Kramer and Mrs. Doubtfire and television shows such as Judging Amy that inaccurately suggest that the majority of custody matters involve fierce competition between parents. Some web sites3 offer assistance and strategies to ‘‘win’’ custody battles. Finally, the form of legal pleadings
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often encourages the right-versus-wrong polarization. Combined, these factors are likely to bring out competitive elements of litigants’ personalities and thus create a situational factor that should be considered in evaluating test results. The stress of involvement in custody litigation can be enormous. Litigants often believe that the most important elements of their lives, their relationship to their children and their sense of self-worth, are at stake. During the course of the legal dispute, many parents live under a microscope where day-to-day problems become the bases for emergency ex parte motions, or at least seem likely to become factors in litigation. For example, when a child learning to ride a bike falls and requires medical intervention, the situation is likely to be very different for intact as opposed to litigating families. In addition to the parental stress that accompanies any injury to a child, parents who are litigating divorce are confronted with worries about the implications of the accident for the litigation. Emergency court interventions concerning domestic violence, supervised visits, and similar matters are likely to cause enormous emotional stress for all involved. The resulting intense pressure and scrutiny may affect how parents respond to questions on psychological tests. Some parents have negative reactions to having their parenting abilities investigated. Others become angry over the idea that someone outside of the family may determine whether or when they may spend time with their children. Such negative reactions may affect how a parent responds to questions on psychological tests. Many parents’ scores on psychological tests may reflect how they are responding to the context of the custodial dispute. Thus scores may reflect the influence of situational or contextual variables. Interpretation of test data must include discussion of how these situation or contextual variables may affect interpretation of test scores. Item Content Review of the item content of the MMPI-2, MCMI-III, and Personality Assessment Inventory (PAI) shows that many of the items are transparent. Parents seeking to present themselves in a favorable light have a relatively easy job choosing responses that show them to be virtuous or even overly virtuous, resulting in a defensive or ‘‘fake good’’ profile that complicates the interpretation of the tests. Although the validity scales will typically reveal these attempts to present themselves in a favorable light, the effect of these defensive attempts may mask parents’ true scores on the clinical scales. The result is that parents who present with a defensive profile will likely have clinical scale scores that underestimate the true scores. Some of the items on tests typically administered to parents undergoing custody evaluation measure aspects of the mentally healthy individual.
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Others measure aspects of psychopathology. Nichols and Greene (1997, p. 254) note of defensive test takers: They may endorse items not merely to conceal symptoms and maladjustment, but to assert a degree of soundness, virtue, prudence, strength and well-being that is, if anything, superior to ‘‘normal’’ levels. . . . In child custody, the evaluator is likely to see underreporting by a mix of trying to conceal any indication of psychological distress (dissimulation) and trying to assert superior adjustment (simulation).
More than 40 years ago, Exner, McDowell, Pabst, Stackman, and Kirk (1963, p. 91) noted that these tests rely heavily on the test taker’s willingness to answer the items honestly: Thus the total usefulness of the device as a diagnostic instrument, particularly when used for screening or in situations where social desirability is an important element, seems to be dependent largely upon the honesty of the subject or on the ability of the interpreter to detect willful attempts at dishonest responding.
The tendency to ‘‘fake good’’ by custody litigants should be understood and interpreted in the context of the litigation. Unlike individuals who take tests as part of an evaluation designed to help them, who are thus motivated to provide the evaluator with the most accurate information possible, the custody litigant is motivated to convince the evaluator that he or she is a good parent and so to skew information in that direction. Terms such as ‘‘faking good’’ and ‘‘defensive,’’ which evaluators intend to be descriptive, are likely to be understood by courts as indicating that the parent has been dishonest, is deliberately trying to misinform the evaluator, or is suffering from some condition that results in dishonesty. Although any of these may be the case, the ordinary and perfectly normal wish to present oneself well in a situation in which one is being judged should not be mistaken for any of these. In reporting results in which the evaluator indicates that the parent is ‘‘faking good’’ (or similar terms) it is important to make clear that this finding may simply be the result of involvement in custody litigation and certainly that it does not in itself reflect moral turpitude or pathology. Interaction Effects Between the contextual variables that affect a parent’s testtaking behavior and the item content of the tests, it is not surprising that evaluators often see common profiles on these tests. Discussing the influence of contextual variables on parental test performance allows the reader of reports to better understand how each parent may have approached the test
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situation and may also provide useful data on which to base hypotheses about parenting behavior. We believe that the following factors often affect parental test behavior during child custody evaluations:
Parents in a stressful divorce challenge each other for custody of their children. The contextual variables generate defensive postures in the parents. Parents are administered tests with transparent item content. Parents’ test scores often reveal characteristic ‘‘fake good’’ or defensive test profiles.
Understanding the influence of these factors on parental test behavior, evaluators should be cautious about using traditional rules of test interpretation with parents involved in child custody evaluations. The APA (2002) Ethics Code addresses this issue: 1. 9.06 Interpreting Assessment Results (a) When interpreting assessment results, including automated interpretations, psychologists take into account the purpose of the assessment as well as the various test factors, test-taking abilities, and other characteristics of the person being assessed, such as situational, personal, linguistic, and cultural differences, that might affect psychologists’ judgments or reduce the accuracy of their interpretations. They indicate any significant limitations of their interpretations. (See also Standards 2.01b and c, Boundaries of Competence, and 3.01, Unfair Discrimination.)
It is the responsibility of the prudent evaluator to understand and consider these effects when interpreting tests in the child custody context. CONTEXT-SPECIFIC NORMATIVE DATA Several studies have examined how male and female custody litigants respond on the MMPI-2 when it is administered as part of a battery of tests in a child custody evaluation (Bagby et al., 1999; Bathurst et al., 1997; Butcher, 1997; Posthuma & Harper, 1998; Schenk, 1996; Strong et al., 1999). A few studies have examined the use of the MCMI-III in child custody evaluations (Halon, 2001; Lampel, 1999; McCann & Flens, 1998; McCann et al., 2001). Two studies, McCann et al. (2001) and Hynan (2004), reported statistically significant differences between male and female custody litigants on the Histrionic, Narcissistic and Compulsive Personality scales (scales 4, 5, and 7, respectively). Hynan opines that these differences are an artifact of the scoring
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procedure used to score the MCMI-III rather than reflecting actual gender differences on these scales. There were no differences in raw scores for male and female custody litigants on these scales; the differences show up only when the raw scores are translated into the standardized scores used on the test. The PAI has been gaining in popularity as a useful assessment instrument to be used in child custody evaluations. The design of the PAI attempts to correct many of the psychometric problems inherent in the MMPI-2. For example, the PAI does not have item overlap between scales and there are no correction factors for response-style issues. There are limited data available for the use of the PAI in child custody evaluations. There are some preliminary data on the use of the State-Trait Anger Expression Inventory (STAXI) and the Parenting Stress Index (PSI) in child custody evaluations. Unpublished data on the STAXI shows that parents typically endorse items that are interpreted to reveal a denial of state- and trait-related anger issues, no difficulties in anger expression, and a tendency to express anger in a healthy and controlled fashion. A working hypothesis regarding these data is that they are ‘‘fake good’’ profiles. Research on the use of the PSI among child custody litigants shows the Defensive Responding score is not in the defensive range. Parents appear to be describing their children in a fairly honest and open fashion, as indicated on the Child Domain scales. The Parent Domain scales, however, do suggest the parents are less willing to acknowledge difficulties, particularly with their coparent. This is contrary to the context of the evaluation and suggests a response-style issue. RESPONSE-STYLE ISSUES The first step in interpretation of a parent’s psychological test responses is an analysis of the validity scales. This initial phase involves determining how the individual approached taking the test by examining his or her response style. There are several different response styles discussed in the literature, including malingering, defensiveness, irrelevant responding, random responding, honest responding, and hybrid responding (Heilbrun, 2001). Research examining how male and female custody litigants perform on the MMPI-2 and the MCMI-III suggest that there are two common response styles: defensive responding and honest responding. Most parents present with a defensive response style, generally presenting a ‘‘fake good’’ response style. A ‘‘fake good’’ response style is more difficult to detect than a ‘‘fake bad’’ response style (Baer, Wetter, & Berry, 1992; Graham, Watts, & Timbrook, 1991). This dilemma is aptly described by Graham (2000, p. 58): ‘‘It is not possible to tell if such a profile is indicative of a well-adjusted
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person who is motivated to appear even more well adjusted or of a poorly adjusted person who is trying to appear to be well adjusted.’’ Response-style issues help evaluators determine how much confidence and certainty can be placed in their interpretation of the test data (Bathurst et al., 1997; Butcher et al., 1997; Heilbrun, 2001). Response style can influence scale elevations and profile configurations. For example, it is likely that the influence of a ‘‘fake good’’ response style on clinical scales is to underestimate the parent’s true score. When parents intentionally present a favorable picture of themselves, it is likely that items that measure pathology will be intentionally underreported in an effort to present a consistent ‘‘fake good’’ profile. Failure to take response style into account may result in erroneous interpretations, faulty opinions, and bad recommendations. The costs are high in child custody cases for the parents—and for the evaluator. Several authors and researchers (Bagby & Marshall, 2004; Friedman, Lewak, Nichols, & Webb, 2001; Greene, 2000; Lanyon, 2004; Paulhus, 1998; Strong, Greene, & Kordinak, 2002; Strong et al., 1999) have found that the common ‘‘fake good’’ response style is actually comprised of two separate factors: 1. Impression management is a situational and context-specific variable that involves conscious and deliberate attempts to present a favorable impression. This can include asserting favorable but inaccurate characteristics and denying unfavorable but accurate characteristics. The parent in this case is trying to fool the evaluator into believing he or she is more virtuous and mentally healthy than may actually be the case. 2. Self-deceptive enhancement involves a more subtle characteristic in which individuals actually believe they embody the favorable image presented. It could be said that the individuals in this case are actually fooling themselves. A parent who present with self-deceptive enhancement can be described as having a lack of insight, having narcissistic qualities, and easily angered when confronted. These parents believe that their responses are accurate and justified. Identifying whether a parent’s response style reflects impression management or self-deceptive enhancement helps in interpreting the degree to which a parent’s ‘‘fake good’’ response style is under conscious control. It is believed that the impression management response style reflects behavior that is under conscious control, whereas self-deceptive enhancement reflects behavior that is not under conscious control. Some authors have suggested that when an individual scores high on impression management the test administrator should readminister the test and provide directions to the test taker to
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approach the test in an open and honest manner. Other authors have argued against such an approach. Assessment of these two factors can be easily integrated into an analysis of validity scale scores on the MMPI-2. Research is currently under way to assess these factors on the MCMI-III and PAI. We believe that the Overcontrolled Hostility (O-H) scale is a widely misunderstood and misused scale in the child custody arena. The average custody litigant is reported to achieve a T-score of approximately 60 to 61 on the O-H scale (Bathurst et al., 1997), revealing that the average custody litigant scores a full standard deviation higher than the normal sample. This scale is best described as an attempt by the parent to portray a characteristic of good emotional control (Butcher, 1997) rather than an indication of anger-related issues, as the scale was originally intended to measure. Cluster analysis of the Impression Management and Self-Deceptive Enhancement scales using data from male and female custody litigants reveal three distinct profiles: 1. An honest and open presentation, with a relatively flat impression management and self-deceptive enhancement profile. These profiles present little interpretive difficulty for the evaluator. 2. An elevated self-deceptive enhancement factor. This factor suggests that these parents have a lack of insight, have narcissistic qualities, and may be angered when confronted. 3. Elevated impression management and self-deceptive enhancement factors. These profiles present the greatest interpretive difficulties for the evaluator. These parents are presenting a ‘‘fake good’’ response style and are somewhat narcissistic, rigidly overconfident, and sanctimonious about others’ problems. These individuals create an initial favorable impression but are later seen as arrogant, hostile, and domineering. There is no separate impression management cluster in these data. Careful scrutiny of the data shows that this absence is due to an elevated L scale without the corresponding elevation in Other Deception and Wiggins’ Social Desirability. Along these lines, Greene (2000, p. 91) noted: The L scale can be construed as a measure of psychological sophistication with high scores indicating a lack of such sophistication when the elevation is not a reflection of impression management. In this latter circumstance, the L scale will be elevated, but the Other Deception (ODecp) and Wiggins’ Social Desirability (Sd) scales will not be elevated.
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For this reason, the Impression Management and Self-Deceptive Enhancement supplemental validity scales should be scored when either the L or K scale is elevated. Graham (2000) suggests that T-scores > 65 on the L scale suggests extreme denial or defensiveness and that similar elevations on the K scale suggests a ‘‘fake good’’ response style, both of which raise questions about the ability of an evaluator to accurately interpret the profile. Nichols and Greene (1997) suggest that some degree of deception is present if the false percent 70%. Using these decision rules on an unpublished database of more than 1,000 custody cases (Flens, 2007, personal communication), approximately 45% of the cases would be of questionable interpretive value. Using only the L and K scale rules, approximately 40% of the cases would qualify. Obviously, the ‘‘fake good’’ response style becomes a significant issue in the interpretation of MMPI-2 profiles in the child custody arena. In addition to the issues associated with the validity scales, there are other ways that response-style issues influence interpretation of clinical scale scores. For the MMPI-2, for example, elevations on the L and K scales often result in a set of relatively flat clinical scales. Due to the response style, however, the lack of elevations on the clinical scales cannot be interpreted as an absence of psychopathology (Butcher & Williams, 2000). This is because the individual has been unwilling to be open and honest with his or her endorsement of the test items. Because the items are quite transparent, the resulting profile may not accurately capture situational and personality characteristics of the parent being tested. Flens (2006) has named these profiles (high validity scales and low clinical scales) the Fake Dead Profile, or Opossum Profile. As we have already discussed, custody litigants tend to answer ‘‘false’’ to approximately 67% (on average) of the items. This ‘‘false’’ response set affects other scales on the MMPI-2, such as the content scales (which tend to be low), several of the supplemental scales (Repression, Social Responsibility, Dominance) and several of the Harris-Lingoes subscales (Hy1, Hy2, Hy5, Pa3). The substance abuse scales are also affected by the ‘‘fake good’’ response style (Greene, 2000; Otto, Lang, Megargee, & Rosenblatt, 1988; Wasyliw, Haywood, Grossman, & Cavanaugh, 1993). The prudent evaluator should be alert to the impact of a ‘‘fake good’’ response style on the clinical scales of any test, such as the MMPI-2. Response-style factors, such as the K correction issue, can create artificially elevated scales, often leading to false-positive interpretations of these artifactually elevated scales. Knowing how the ‘‘fake good’’ response style affects the MMPI-2 items, scales, and profile configurations is very important given the complexity of these issues in the child custody context.
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Scores on the MCMI-III personality scales, on the other hand, are affected by a ‘‘fake good’’ response style in a different way. There is a prototypical child custody profile on the MCMI-III in which there are elevations on the Desirability validity scale and on the Histrionic, Narcissistic, and Compulsive Personality scales (see Millon et al., 1997, pp. 119, 125). Interestingly, however, the manual notes that a ‘‘fake good’’ response style may result in elevations on the Dependent, Narcissistic, or Compulsive scales. The manual’s discussion of the Dependent scale is inconsistent with research with child custody litigants showing that the Histrionic scale is often elevated in this context. As would be expected, the Desirability scale is typically elevated. Generally, MCMI-III profiles of male and female custody litigants show a lack of significant elevations on most other scales, with occasional exceptions of elevations on some of the Clinical Syndrome scales. The PAI also shows a characteristic profile in a ‘‘fake good’’ response style. The Positive Impression Management scales are elevated, as are the Treatment Rejection, Dominance, and Warmth scales. The Grandiosity subscale is also commonly elevated. Unpublished data of the use of the STAXI in child custody evaluations (Flens, 2006) reveal a characteristic profile with a ‘‘fake good’’ response style. The State Anger scales hover around the middle of the profile. The Trait Anger scales, Anger Expression Outward/Inward scales, and Anger Index scales are all low. The Anger Control Outward/Inward scales are very elevated. Overall, the profile suggests that these parents are not experiencing any difficulties with anger expression, but when they do experience anger they respond in a highly controlled and appropriate fashion. Evaluators who are unfamiliar with how MCMI-III scores are calculated may incorrectly interpret a scale as revealing a clinically significant finding when in fact the scale elevation is due to the influence of defensive responding. CORRECTION ISSUES With some tests, such as the MMPI-2, defensive responding results in the addition of a correction factor to certain scales. On the MMPI-2, this correction factor is the K-scale. A K-corrected profile may actually result in false-positive interpretations, potentially overpathologizing a parent’s test profile. Fifty years of research has failed to find support for the use of the K score as a correction for defensive responding (Bartlow, Graham, Ben-Porath, Tellegen, & McNulty, 2002; Comrey, 1958; Graham, 2000; Greene, 2000; Hunt, 1948; Schmidt, 1948). Five out of the 10 clinical scales on the MMPI-2 are K-corrected (i.e., scales 1, 4, 7, 8, 9; Butcher et al., 2001). Because the K scale is frequently elevated in
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child custody cases, a K-correction factor may directly result in higher scores on some clinical scales. There are essentially three ways to get an elevation on a K-corrected scale: 1. Endorsement of a large number of items on the target scale, plus a small amount of K-correction 2. A relatively even mix between scale items and K-correction 3. Endorsement of a small number of items on the target scale, plus a large amount of K-correction Scale 4 of the MMPI-2 is often elevated in custody cases. Scale 4 has 0.4 K added to the raw score, which could result in an artificially elevated score. The MCMI-III also uses correction factors for ‘‘fake good’’ profiles. The MCMI-III manual (Millon et al., 1997, pp. 177–180) contains four different adjustments, only two of which are relevant for our discussion. The first is the Disclosure adjustment, which is based on the Scale X raw score. The second is the Denial/Complaint adjustment, which adds 8 base rate points to the highest of scales 4, 5, and 7 if one of those three scales is the highest of the clinical scales. The effect of these corrections can also lead to false-positive elevations in erroneous interpretations and opinions. Evaluators who are unfamiliar with how MCMI-III scores are calculated may incorrectly interpret a scale as revealing a clinically significant finding when in fact the scale elevation is due to the influence of defensive responding. COMPUTER-GENERATED INTERPRETATIONS The APA (2002) Ethics Code addresses the use of computer-generated interpretive programs:
1. Ethical Standard 9.09: Test Scoring and Interpretation Services (a) Psychologists select scoring and interpretation services (including automated services) on the basis of evidence of the validity of the program and procedures as well as on other appropriate considerations. (See also Standard 2.01b and c, Boundaries of Competence.)
We do not know if the authors of the APA Ethics Code revision intended the use of computer-generated testing interpretive reports to raise ethical issues, but the wording Section 9.09 has been brought to the attention of the ethics board of the APA for clarification in a letter written by Leslie Drozd,
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PhD, Lyn Greenberg, PhD, and David Martindale, PhD. In what was believed to be a response to this letter as well as concerns expressed by others, Dr. Stephen Behnke (2004), the APA ethics director, penned a column in the APA Monitor, suggesting that evaluators should be able to answer the following questions regarding any CGTI program used:
Given the purpose for which the service is utilized, what evidence of the program’s validity do I require so that I may benefit, and not harm, my client? What information about a program need I have in order to take responsibility for what my assessment contains?
It is our opinion that it is not presently possible to answer these questions. The algorithms (i.e., program logic and decision rules) used to generate the interpretive statements in a computer-generated interpretation are not publicly available. Therefore evaluators are unable to answer important questions about which data are used to generate what specific statements found in the interpretive reports. Suffice it to say, however, that the prudent child custody evaluator should be prepared to defend the use of computer-generated test interpretation reports if he or she chooses to base an opinion on the interpretive data found in the computer-generated report. We believe that Dr. Behnke’s two questions actually created more problems than they solved. The algorithm (i.e., program logic and decision rules) used to generate the statements in the CGTI are proprietary secrets. Therefore we simply cannot answer important questions about how the program generates the statements found in the CGTI report. Examples of these questions include:
Is the program an actuarial interpretation program or an automated interpretation program? What is the level of significance regarding the test scores? Are there different levels of significance for different scales? At what point does the program actually generate a statement for a particular scale? Are there different statements depending on the level of elevation for any given scale? Does the program take into consideration profile configurations or combinations of elevated scales, or are the statements based on single-scale elevation? Does the program take into consideration the response style when offering the CGTI statements?
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Does the program use context-specific normative data to facilitate interpretive statements?
It is our opinion that custody evaluators do not rely on the computergenerated interpretive reports in formulating their opinions. CONCLUSION Psychological tests are the most scientifically justified method used by custody evaluators. However, this very fact leads to several important problems in their use in these evaluations. The prestige attached to them, their technical language, and statistical justification can easily lead both legal and mental health professionals to attribute greater significance to test findings than they should have in evaluations and to believe that they say more than they do. Precisely because of the common overestimation of the value of these apparently scientific instruments by the courts and evaluators, the wise evaluator is cautious in their use. Appropriate tests should be used, and the evaluator should explain the significance, including the validity, of the tests under the particular circumstances of the litigation and the situation in which they were taken, including their relevance to matters before the court. Care must be taken to ensure that the tests are properly administered and scored. Interpretation must be carried out with constant attention to the threats of various forms of bias. Special attention must be paid to the ways certain scoring methods, such as K-scale corrections, may lead to wrong impressions from the tests. Finally, care must be taken that the court is provided with an accurate picture of the tests meanings. Potentially misleading technical terms must be explained, information must be provided about the relative usefulness of test data compared to other data available to evaluators, and the court must be disabused of the notion that test findings are so valid and precise that they can be accepted uncritically in making custody decisions. NOTES 1. The term scientist-practitioner is used by permission by Katherine Kuehnle, PhD. See, for example, Kuehnle (1996, 1998). 2. See, for example, Regents of the University of Minnesota v. Applied Innovations, Inc. (1987); Applied Innovations, Inc. v. Regents of the University of Minnesota (1989). 3. See, for example, www.childcustodycoach.com; Custody Evaluation Consultant, www.custodyevalaution.com; Separated Parenting Access and Resource Center (SPARC), www.deltabravo.net; www.childcustodylegalhelp.com; Custody 911,
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www.custody911.com; Win Child Custody, www.winchildcustody.com; Custody Strategies (Dr. Barry Bricklin and Dr. Gail Elliot), www.custodycenter.com.
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CHAPTER 5
An Updated Review of the Effects of System and Estimator Variables on Child Witness Accuracy in Custody Cases BRADLEY D. McAULIFF, MARGARET BULL KOVERA, and LIVIA L. GILSTRAP
children about their preferred living arrangements in custody cases (Jones, 1984; Lombard, 1984). Every state allows judges to consider children’s wishes when making custody determinations (Crosby-Currie, 1996), and there is some evidence that judges consider these preferences to be very important to the decisions they make. Nearly half of the responding judges in one survey viewed children’s preferences as one of the five most important criteria to consider when making custody decisions (Felner, Terre, Farber, Primavera, & Bishop, 1985). Judges may interview children to learn about parents’ behavior also. This may involve allegations of child maltreatment (McIntosh & Prinz, 1993) or parental drug or alcohol abuse (Lombard, 1984). Some judicial interviews are used to corroborate evidence provided by parents in court (Scott, Reppucci, & Aber, 1988). Some scholars have questioned this practice on constitutional grounds (e.g., Crosby-Currie, 1996; Jones, 1984; Lombard, 1984); however, we raise a more fundamental question: Is the information gained in these interviews reliable? Can children provide accurate information about events they have experienced? Certain factors affect the accuracy of children’s reports. Adult eyewitness researchers have classified these variables into one of two categories: estimator variables or system variables (Cutler, Penrod, & Martens, 1987; Wells, 1978). Estimator variables are factors present in a witnessing condition that are
J
UDGES FREQUENTLY INTERVIEW
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126 ESTIMATOR VARIABLES
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not under the control of legal professionals (e.g., age of the child, coaching of testimony by a parent) but that, if known, can help the trier of fact predict the accuracy of the witness’s report. In contrast, system variables are factors known to influence the accuracy of an eyewitness’s report that are under the control of judges, attorneys, or other legal players (e.g., misleading questions, pretrial preparation of the child). By attending to the potential impact of system variables on testimony and appropriately modifying their procedures, legal professionals can enhance the accuracy of witness reports (Seelau & Wells, 1995). In this chapter, we revisit and update our discussion of research examining certain factors that influence the accuracy of children’s reports in custody cases that appeared in the first edition of this volume (Kovera & McAuliff, 1999). We begin by discussing the effects of several estimator variables on children’s accuracy, including age, individual differences between children of the same age, and parental coaching. Next we discuss the effects of system variables, including the children’s preparation and type of questioning, on the quality of information children provide in custody proceedings.
ESTIMATOR VARIABLES CHILD AGE Survey research suggests that judges are wary about relying on information provided by younger children. Judges in one survey reported that they weigh the preferences of older children more heavily than those of younger children when making custody decisions (Scott et al., 1988). They weighed information from children 14 years old and older most heavily, gave some weight to information from children between the ages of 10 and 14, and discounted information from children under the age of 10. Moreover, judges stated that they did not gather information from children under the age of 6 because such information is inherently unreliable. Newman and Collester (1980) also found that most courts presume that a child under the age of 10 is incapable of providing reliable information about their custodial preferences, although some judges argued that children as young as 6 should be interviewed to determine whether they are able to provide information about their preferences. To what extent are judges’ beliefs consistent with psychological research on age-related differences in the accuracy of children’s reports? In neutral interviews, very young children (i.e., as young as 2.5 years) are capable in some circumstances of providing relatively accurate reports of past events over long time periods (Hamond & Fivush, 1991; Peterson & Parsons, 2005). These reports are less detailed on average than reports provided by older
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children and adults. Young children are capable of accurately recalling autobiographical events over relatively long time periods. There are numerous studies that highlight the strengths of young children’s memories when asked neutral questions, including after longer delays, and that suggest that by age 2.5 children are capable of long-lasting memories of salient events (see, e.g., Fivush, Haden, & Adams, 1995; Fivush, Hamond, Harsch, Singer, & Wolf, 1991; Goodman, Batterman-France, Schaaf, & Kenney, 2002). Children in another study accurately recalled events from their kindergarten years even 9 years later (Gold & Neisser, 1980). Similarly, Hudson and Fivush (1987) examined children’s memories of a kindergarten trip to a museum and found that children’s recollections of the event remained accurate even 6 years later. Although both of these studies found that the amount of information children recalled was related to the amount of time that had passed since the event (i.e., children remembered more information when the event was more recent), this pattern of results is similar to the findings from studies of adult autobiographical memory (Linton, 1982; Wagenaar, 1986; Wagenaar & Groeneweg, 1990), suggesting that children’s recollections may be as accurate as adults’ recollections. In fact, research suggests that even preschoolers can remember unusual events (e.g., a trip to Disney World) that occurred 1 to 2 years previously (Fivush & Hamond, 1990; Hamond & Fivush, 1990). Children as young as 4 can retrieve accurate memories of everyday occurrences that occurred months earlier (e.g., what they did the previous summer; Friedman, 1992). Even in the suggestibility literature, most studies report that children in the control group (i.e., receiving no suggestion) recall events with high rates of accuracy (e.g., Leichtman & Ceci, 1995). Evidence from that body of research indicates that in the absence of suggestion even very young preschoolers can provide highly accurate reports. Children’s reports can also be quite consistent. School-age children are capable of providing reports about personally experienced events that are consistent over time (Hudson & Fivush, 1987), although this ability is compromised if interviewers use suggestive or misleading questions to elicit information from the children (Poole & White, 1995). However, it is important to note that the consistency of a child’s report may not always indicate its accuracy. Because at any one time very young children spontaneously recall few facts about events, over time preschoolers (e.g., 2.5-year-olds) often provide inconsistent accounts of events even when nonleading questions are asked of them (Fivush & Hamond, 1990; Fivush et al., 1991; Fivush & Shukat, 1995). Yet when Fivush and her colleagues assessed the accuracy of these inconsistent reports with the children’s parents, they found that over 90% of the children’s statements were accurate (Fivush, Gray, & Fromhoff, 1987; Fivush et al., 1991; Fivush & Hamond, 1990).
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There is evidence that some of the inconsistency in preschoolers’ statements is caused by the questions adults ask them. When asked the same question over time, children tend to produce consistent reports about personally experienced events; when adults ask children different questions over time, the children tend to produce inconsistent reports (Fivush et al., 1991). Similar findings have been reported for adult witnesses. Although the consistency of witness reports is not strongly related to accuracy, consistency of reports over time is related to the consistency of interviewing procedures over time (Fisher & Cutler, 1996). Whatever the source of preschoolers’ inconsistencies, judges should be careful not to rely on those inconsistencies when judging the accuracy of children’s reports of family life, especially when the children are very young. Despite the fact that children’s responses to free recall requests, without suggestion, are relatively accurate, their free recall reports are not free from errors. Furthermore, in relatively neutral direct questioning, a very small percentage of children will provide inaccurate details even about bodily touch. It is a common finding in memory research that younger children provide fewer details than older children or adults in the context of neutral interviews (e.g., Hershkowitz, 2001; Lamb et al., 2003; Poole & White, 1991). In addition, although children are generally accurate when they are interviewed by a neutral experimenter who asks few leading questions and when they are not given any motivation to produce distorted reports, there are occasionally a very small percentage of children who give bizarre or sexualized answers to direct questions. In a study of children’s reports of medical examinations (Saywitz, Goodman, Nicholas, & Moan, 1991), one child, who had not received a genital exam, falsely reported that the pediatrician had touched her buttocks and on further questioning claimed that it tickled and that the doctor used a long stick. Thus it is possible, although very rare, for children to make spontaneous, bizarre, and unfounded allegations, and currently there are no methods for predicting which children will do so. Overall, research on autobiographical memory suggests that judges may want to revisit their assessments of children’s capabilities. Survey research suggests that judges may routinely devalue the reports of children younger than 10 (Newman & Collester, 1980; Scott et al., 1988); however, psychological research has demonstrated repeatedly that even preschool children can provide reliable information about their lives. Therefore, young children may be able to provide important information about their current living situation and custodial preferences. CHILDREN’S MEMORY
FOR
STRESSFUL EVENTS
There exists a large literature examining the effects of stress on the accuracy and completeness of memory that suggests moderate stress generally does
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not hinder memory and may facilitate memory (for a review, see Pezdek, Taylor, Eisen, Quas, & Goodman, 2002). In addition, recent reviews of the literature of emotional memory and memory for traumatic experiences indicate that children remember and recall such highly stressful events as well as they recall neutral events (Cordon, Pipe, Sayfan, Melinder, & Goodman, 2004) and perhaps that emotional, negative information is remembered better than positive or neutral information (Berntsen, 2001). Even at very young ages, children’s accounts of negative personal experiences are detailed. In one study, 2-year-old children were able to provide coherent, detailed recall of traumatic injuries and ensuing emergency room treatments that they had experienced several days earlier (Howe, Courage, & Peterson, 1994). The children’s recall of the central details of the target events was still robust when tested 6 and 12 months later. Children’s abilities to provide information about more stressful experiences may be less well developed (Merritt, Ornstein, & Spicker, 1994; Peters, 1991), although other researchers find no discernible effects of stress on children’s memory (Goodman, Hirschman, Hepps, & Rudy, 1991). Moreover, research examining 3-yearolds’ memory for novel events (e.g., an unfamiliar adult reads them a new book) suggests that these preschool children have poorer memories for these events than do older children or adults (Ceci, Ross, & Toglia, 1987; Zaragoza, 1987, 1991). Thus judges may wish to exercise caution when evaluating preschoolers’ reports of unfamiliar or stressful experiences (e.g., sexual abuse). INDIVIDUAL DIFFERENCES
BETWEEN
CHILDREN
OF THE
SAME AGE
Broad age-based trends account for a great deal of variance when trying to determine which children are likely to be more accurate. We have summarized the findings on children’s age and their memory. However, it is also clear that children of the same age vary tremendously. Researchers have worked to identify individual difference factors that predict accuracy and suggestibility within children of a given age. Although these factors do not reach a level of predictive strength that would allow for their use as probative evidence regarding an individual child in an individual case, there are a number of child characteristics that do predict children’s testimonial accuracy and some factors that one might expect to predict accuracy and suggestibility that do not. Several thorough reviews of this literature have been published (e.g., see Bruck & Melnyk, 2004), therefore we present only an overview of the literature here, focusing exclusively on various cognitive and social factors that predict memory and suggestibility. Cognitive Factors Related to Suggestibility Like adults, children’s reports of past events are susceptible to distortion via suggestions from an interviewer
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(see the following reviews: Ceci & Bruck, 1993; Ceci & Friedman, 2000; Lyon, 1999; Poole & Lamb, 1998; Quas, Goodman, Ghetti, & Redlich, 2000). This susceptibility is called suggestibility and can be defined as the degree to which the encoding, storage, retrieval, and reporting of events can be influenced by a range of internal and external factors that can be present before or after the event. Source monitoring, intelligence, and memory are often cited as predictors of individual differences in suggestibility and are included in many models of false memory development (Bruck & Ceci, 1997; Hyman, 1999; Johnson, 1993; Loftus, 1997). The findings regarding source monitoring and suggestibility are relatively consistent. Children with better source monitoring abilities tend to be less suggestible (Leichtman, Ceci, & Morse, 1997; Thierry, Spence, & Memon, 2001). Less consistent are studies that have examined the link between suggestibility and intelligence. Some studies have found that children with higher IQ scores are less suggestible (Danielsdottir, Sigurgeirsdottir, Einarsdottir, & Haraldsson, 1993; Pollard et al., 2004), produce more details during general recall (Roebers & Schneider, 2001), and behave more cooperatively in interviews (Gilstrap & Papierno, 2004). Others have found no relationship between intelligence and suggestibility (Bruck, Ceci, Francoeur, & Barr, 1995; Roebers & Schneider, 2001). A review of the research on IQ and suggestibility concluded that IQ is predictive only when children of low IQ are included in the sample and that within the normal range IQ scores do not predict suggestibility (Bruck & Melnyk, 2004). Still, there have been at least two studies published since this review that have found relationships between IQ scores and suggestibility and accuracy within the normal range of IQ scores (Chae & Ceci, 2005; Clarke-Stewart, Malloy, & Allhusen, 2004). Other cognitive characteristics have been proposed as important factors in suggestibility. Increased knowledge base has been linked to decreased suggestibility when children’s previous knowledge is consistent with the target event, but increased suggestibility when children’s knowledge is inconsistent with the target event and when misinformation is consistent with their knowledge (see Bruck, Ceci, & Melnyk, 1997; Goodman, Quas, BattermanFrance, Riddlesberger, & Kuhn, 1997). Children’s understanding of dual representations (Welch Ross, Diecidue, & Miller, 1997) has been associated with decreased suggestibility. Event memory has been associated with suggestibility, but as a contextual factor (i.e., repeating information to strengthen memory decreases suggestibility) rather than as an individual difference. Bruck and Melnyk (2004) concluded that advanced language ability decreased suggestibility, but only when language was measured comprehensively (i.e., not solely by vocabulary). They also found that traditional memory measures do not predict suggestibility, that memory for an event is negatively correlated with suggestibility for that event, that there were
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mixed findings on the directionality of the relationship between theory of mind and suggestibility (see Templeton & Wilcox, 2000; Welch Ross et al., 1997), but that there is some relationship between increased executive functioning and decreased suggestibility. Recent work on executive functioning (i.e., working memory) and suggestibility has strengthened that posited relationship (Roebers & Schneider, 2005). Social Factors Related to Suggestibility Findings regarding the relationship among self-confidence, self-esteem, and suggestibility are relatively consistent. Children with higher self-confidence (Vrij & Bush, 2000) and higher selfesteem (Baxter, Jackson, & Bain, 2003; Gudjonsson & Sigurdsson, 2003; Peiffer & Trull, 2000, in adults) are less likely to acquiesce to suggestion. Less consistently, compliance has been positively correlated with susceptibility to leading questions in institutionalized adolescents (Richardson & Kelly, 2004), although at least one study with adults found no relationship between suggestibility and compliance (Horselenberg, Merckelbach, & Josephs, 2003). Finally, some researchers have found that shyness and suggestibility are not related (Muir-Broaddus, King, Downey, & Petersen, 1998; Young, Powell, & Dudgeon, 2003), whereas others have found that shy children are less accurate (although not necessarily more suggestible; Roebers & Schneider, 2001). Other research suggests that increased inhibitory control and closer relationships with supportive and psychologically healthy parents are related to decreased suggestibility (Clarke-Stewart et al., 2004), that children with avoidant attachments are the most suggestible, and that there is no relationship between behavioral problems and suggestibility (Bruck & Melnyk, 2004). PARENTAL COACHING
OR
REQUESTS
FOR
SECRECY
Another social factor related to children’s accuracy and particularly relevant to child custody cases is when parents coach children to provide or conceal particular information. To what extent do children conceal information if they are asked to keep it secret? Can their reports of family life be tainted by parental suggestion? Pipe and Wilson (1994) found that children may conceal information from an authority figure that they have been asked to keep secret by an adult. Children in that study either assisted a magician with some magic tricks or observed another child helping the magician. The child who assisted the magician was asked to wear white gloves, a cloak, and a hat. In the course of performing four tricks, the magician ‘‘accidentally’’ spilled ink on the child’s white gloves, took the gloves and hid them, then asked the child not to tell anyone about the accident. When researchers asked the children to describe the event 2 weeks later, 75% of the 6-year-olds and 34% of the
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10-year-olds did not report the magician’s transgression. Even when asked directly about the incident, 40% of the younger children and 16% of the older children denied any knowledge about the ink-stained gloves. Thus many, although not all, children will keep an adult’s secret even in the face of direct questions about the secret event. That said, we should note that another study found that children are unwilling to keep an unfamiliar adult’s secret in the face of an experimenter’s strong accusations that the adult has transgressed (Thompson, Clarke-Stewart, & Lepore, 1997); however, it is highly unlikely that any judge would use this style of questioning to elicit information from a child during a custody matter. What happens when children are asked by their parents to withhold information about certain events or experiences? For example, suppose a mother asks her child not to tell anyone that her new boyfriend spent the night in her bedroom, or a father asks his child not to tell the judge about the time he kicked the family dog. Are children willing to keep these secrets to protect their parents? Several studies have investigated this important question. Children in a study by Tye, Amato, Honts, Devitt, and Peters (1999) witnessed a research assistant or parent steal a book from a student who left the laboratory momentarily, or they did not see anyone steal the book. Afterward a graduate student posing as a police officer interviewed the children using a series of open-ended questions followed by specific probes. Across all conditions, nearly 70% of children made accusations. However, 81% correctly accused the research assistant, compared to only 19% who correctly accused their guilty parent. Interestingly, 69% of children who did not see anyone steal the book and 56% who saw their parent steal the book falsely accused the research assistant during questioning. Bottoms, Goodman, Schwartz-Kenney, and Thomas (2002) examined the willingness of children from two different age groups (3- to 4- and 5- to 6-year-olds) to comply with a parent’s request to conceal information (playing with toys when explicitly forbidden to do so) from an interviewer. Older children were more likely to comply with their parent’s request than younger children. One limitation of these experiments, however, is that children were interviewed outside the presence of the wrongdoers. Fewer children may report a transgression when being questioned in front of the offender (Wagland & Bussey, 2005). Parents in an experiment by Talwar, Lee, Bala, and Lindsay (2004) broke a puppet in front of their child or while the child was out of the room and later asked the child not to tell the experimenter what had happened. Regardless of whether the interview was conducted in the presence or absence of the offending parent, most children revealed their parent’s transgression (approximately 50%). However, when the likelihood that the child would be blamed for the broken puppet was reduced (i.e., the condition where children were outside the room when the transgression
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occurred), significantly more children lied; only 22% implicated their parents. Children were more likely to confess when the interviewer asked directly about the event (‘‘Did you mom/dad break it?’’) compared to posing a more general question (‘‘What happened?’’). A second follow-up experiment found that children who were first questioned about lies and who then promised to tell the truth were more likely to reveal their parent’s transgression than children who did not participate in this procedure. Based on these studies, interviewers should be mindful that children are more likely to report transgressions committed by strangers than by their parents, older children are more likely than younger children to comply with parents’ requests to conceal misdeeds, the presence or absence of a perpetrator during questioning has little influence on children’s reports, and eliciting a promise from the child to tell the truth prior to an interview increases the likelihood that the child will correctly implicate a parent when asked to do so. Even when children lie (especially those younger than 8 years old), their ability to do so successfully may be limited given their inability to control other verbal and nonverbal behaviors that indirectly leak the truth (Talwar & Lee, 2002). Finally, whether these findings generalize to more serious events, such as physical and sexual abuse, is unknown. During custody disputes, one may also be concerned about parents who intentionally try to persuade their children that the other parent is unfit or otherwise unsuitable as a parent. Empirical evidence suggests that children incorporate parental suggestions into their memory for events (Poole & Lindsay, 1995). One may also be concerned about one parent coaching a child to lie about the actions of the other parent. Under some laboratory conditions, some children deliberately will tell a falsehood to an adult (i.e., that they played with a toy they had never touched) when asked to do so by another adult (Tate, Warren, & Hess, 1992). There were differences, however, in the reports provided by children who lied about playing with the toy and the reports provided by children who actually did play with the toy. Lying children provided shorter descriptions of their play activities and provided fewer details than children who were telling the truth. Also, parents may unintentionally use suggestive questioning that could alter their children’s memories for interactions with the other parent. Suppose a father suspects that his daughter is being maltreated by his ex-wife’s new husband. Could this father’s expectation influence the types of questions he asks his daughter about her interactions with her new stepfather and in turn influence his daughter’s reports about these interactions? Research by Goodman, Sharma, Thomas, and Considine (1995) suggests that the answer to this question may be yes and no. Children in that study engaged in a play session with an adult experimenter. The mothers of these children received either inaccurate information about the play session (biased mothers) or no
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information about the play session (unbiased mothers). Another group of women who were mothers but not the mothers of the child participants received biasing information or no information about the play session. These women then interviewed a child to learn what that child remembered about the experimental session. Not surprisingly, biased interviewers asked more questions about the misinformation they had received about the play session than did interviewers who had not been misled. More interestingly, children provided more incorrect information when questioned by biased versus unbiased strangers; however, children provided equally accurate reports whether they were interviewed by a biased or unbiased mother. Thus children may be more resistant to suggestions provided by their mother than to suggestions made by strangers. These experiments may underestimate the influence of parental suggestion on children’s event reports. Necessarily, the types of coercion employed in laboratory experiments are less threatening than the types of coercion inherent in real custody situations. In addition, the transgressions that children have been asked to keep secret in these experiments are not very serious. There is some evidence that children may be more likely to keep secret serious transgressions, perhaps because of the negative consequences that would result from their revelation (e.g., Bottoms et al., 2002; Talwar et al., 2004). Parental coaching or suggestion is not under the court’s control. As such, it may be impossible to eliminate parental influence on children’s memory. Nor may it be possible to determine whether a child’s statements have been influenced by their parent. Sometimes simply asking the child is sufficient to elicit descriptions of parental coaching. However, if there is collateral evidence that a parent has coaxed his or her child to make particular statements or to withhold certain information, this evidence should be considered when evaluating the accuracy of the child’s statements about family life.
SYSTEM VARIABLES CHILD WITNESS PREPARATION If participating in legal proceedings is stressful for adults, it should be no surprise that testifying in court can be a frightening experience for young children (Goodman et al., 1992). Even if a child is not called to testify in open court during a custody dispute, being interviewed by a judge in chambers is likely to be stressful, especially for young children who have only the vaguest understanding of the court process. Some children even fear that they are going to court because they are going to be put in jail (Dezwirek-Sas, 1992). Recognizing the difficulty that children may experience in court proceedings, various courts and agencies have developed programs to prepare children for
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their day in court (Aldridge & Freshwater, 1993; Dezwirek-Sas, 1992; Keeney, Amacher, & Kastanakis, 1992; Melton, Limber, Jacobs, Oberlander, Berliner, & Yamamoto, 1992). Without preparation, child witnesses may not understand their role in court, may not know how courts generally work, and may misunderstand the judges’ and attorneys’ language. For example, a child understood the judge’s decree that the ‘‘minor’’ would live with her grandmother to mean that the judge had sent a coal miner to live with her grandmother (Saywitz, Jaenicke, & Camparo, 1990). Saywitz and her colleagues found that elementary school children had difficulty understanding many other legal terms (e.g., motion, petition, competence, and allegation). Children younger than 7 years generally do not understand what a lawyer is or does, and very few understand why people go to court (Warren-Leubecker, Tate, Hinton, & Ozbek, 1989). Moreover, those researchers found that 82% of the 3-year-olds they questioned thought that court was a bad place. Although the number of children who indicated that court was a bad place was inversely related to age, a third of 7-year-olds still believed that court was ‘‘bad.’’ In a study of children in Great Britain, Flin, Stevenson, and Davies (1989) also found that children view court as a negative place. Because of children’s misconceptions about the legal system and their beliefs that court is bad, various programs have been developed to educate children about the court proceedings and to reduce the stressfulness of their experience. One preparation program consists of teaching children about courtroom participants using dolls and books, allowing the children to practice speaking in court, touring an empty courtroom, and helping the child through stress reduction techniques such as relaxation (Dezwirek-Sas, 1992). Evaluation of this program suggested that it improved the psychological adjustment of children who had appeared in court. In addition, attorneys who tried the cases rated the prepared children as better witnesses than children whom they previously had encountered in court. Preparation may not only benefit the psychological adjustment of the child; it may also help the child provide better information to the court. Because the Dezwirek-Sas (1992) study was conducted in the context of actual court cases, it is impossible to independently verify the accuracy of the children’s statements to determine whether these prepared children truly were better witnesses than their unprepared counterparts. Only laboratory studies, in which the event to be remembered is known to the experimenter, allow for a clear picture of the impact of preparation on the accuracy of children’s memory. Several laboratory studies have examined the effects of preparation on the quality of children’s testimony. Children in one experiment witnessed a staged argument between two student teachers in the children’s classroom
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(Saywitz & Snyder, 1996). Two weeks later, the researchers used memory training techniques to prepare some children for reporting the event they had witnessed. A subset of children were told that people can often provide more accurate accounts of events if they focus on describing different aspects of the event, such as the participants, the setting, actions, and what they heard. These children practiced the new memory technique by watching and recalling videotaped vignettes. The next day Saywitz and Snyder interviewed all children about the classroom altercation and compared the responses with the videotape of the original event. Prepared children provided more correct information about the event than children who were not prepared. Moreover, preparation did not increase the amount of incorrect information children provided. Saywitz and Snyder (1993) described two additional laboratory experiments of child witness preparation. In one study, researchers trained children to resist misleading questions by having them read a story about a child who acquiesced to misleading questions because the child was intimidated and didn’t want to hurt the feelings of the police officer asking the questions. Experimenters asked children to role-play the part of the child in the story so they could practice resisting misleading questions. The researchers praised children when they resisted misleading questions, and when the children were misled, reminded them of the dangers of acquiescing to misleading questions. Children with and without training watched a videotape and then answered leading and nonleading questions about the events in the tape. Training improved children’s accuracy when responding to misleading questions. In a second study, children received broader training about strategies to use when responding to questions. Prepared children were taught to recognize questions that were difficult to understand and to ask that they be rephrased. Compared with children who did not receive training, prepared children answered more questions correctly and made fewer errors. A cautionary note about preparation programs is necessary. Attorneys report that court preparation results in children being more composed and confident in court (Kovera, Gresham, Borgida, Gray, & Regan, 1997). However, research by Kovera et al. suggests that fact finders may view composed and confident child witnesses negatively because they violate stereotypes (e.g., that child witnesses are often frightened and lack composure). Other studies suggest that children who are prepared for court testimony are more likely to respond ‘‘I don’t know’’ to difficult or misleading questions (Saywitz & Snyder, 1993). Similarly, fact finders may view a prepared child who repeatedly answers ‘‘I don’t know’’ to be less accurate than an unprepared child who provides responses to questions, even though the prepared child is providing more correct information. The adoption of preparation programs should be tempered with the understanding that the programs may produce
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changes in child witness demeanor that make children appear less credible even though they are providing accurate testimony. These empirical studies of child witness preparation have certain limitations we must keep in mind. The well-controlled laboratory studies have not evaluated the types of preparation programs that are currently in existence (e.g., programs that familiarize children with the court and teach them to relax). Although providing useful information about how children might be prepared to provide better information in court, these studies tell us little about the effectiveness of preparation programs that are likely to be used with child witnesses in actual cases. Moreover, researchers have focused on the preparation of children for open court testimony in criminal proceedings rather than for their likely role in family court proceedings. Nevertheless, this body of work provides vital information about the needs of children to be prepared for their participation in custody proceedings. This research also highlights the benefits that court preparation may have for the accuracy of children’s reports to a judge, whether they are asked to provide information about everyday occurrences in the home or testimony about alleged sexual abuse. SOCIAL SUPPORT Other system variables may relieve children from the stress attendant on their involvement in custody proceedings. For example, children may benefit from receiving social support from a trusted adult, such as a guardian ad litem, during their interview with the judge in chambers or while testifying in open court. To date, only two studies have examined the effects of support person presence on children’s emotional reactions to involvement in legal proceedings. Goodman and colleagues’ (1992) analysis of children’s testimony during preliminary hearings and at trial confirmed that certain forms of social support were indeed associated with positive outcomes. Children who had a nonoffending parent or loved one present in the courtroom during preliminary hearings were rated as being less frightened during their testimony and were less likely to provide inconsistent testimony about certain crime details. Moreover, children testifying in the presence of a nonoffending parent or loved one at trial were able to answer a larger number of the prosecutor’s questions. A more recent study in Finland analyzed investigative interviews of suspected child abuse victims and found that the use of a support person was related to undesirable changes in both children’s and interviewers’ behavior (Santtila, Korkman, & Sandnabba, 2004). Specifically, the presence of a support person was associated with longer, more suggestive interviewer utterances and shorter, less detailed responses from children.
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Certain limitations govern the conclusions we can draw based on these two studies. First, both were correlational in nature and did not focus on support person use exclusively; therefore, causal inferences cannot be made, and additional variables or processes may explain the observed results. Second, the observed results in each study directly contradict one another. In one study, support person use was associated with positive outcomes for child victims (decreased stress, increased consistency), but in the other, children’s responses were shorter and less detailed when given in the presence of a support person. As such, weighing the pros and cons associated with social support in this type of litigation is inherently difficult for judges. Even if certain forms of social support, such as the presence of a support person, are beneficial, children testifying in custody cases may find themselves stripped of their traditional social support system. Judges must decide who the appropriate support person should be and what that person’s appropriate level of involvement should be. Neither parent should serve as a support person in a custody case in which he or she is a litigant. The value of children’s reports, which often produce new insight into the family’s life, could be limited by an involved parent’s social support. QUESTIONING CHILDREN Social scientists have carefully examined the broad issue of interviewing children and the factors believed to influence the accuracy of children’s reports. Our understanding of the cognitive, social, and emotional factors that manifest during the interview process has increased considerably over the past 3 decades. This literature can yield procedural recommendations that maximize judges’ interviews of children in custody proceedings. Although the primary objectives of the judicial interview are to determine the child’s custodial preference and, at times, to elicit a complete and accurate account of family life from the child, myriad factors in the interview process may cause even the most competent questioners of children to elicit inaccurate reports. Our goal in this section of the chapter is to identify some of the pitfalls commonly encountered when questioning children. We focus on three primary system variables related to the questioning of children: (1) the creation and maintenance of a suitable interviewing atmosphere; (2) the use of age-appropriate vocabulary and sentence forms; and (3) the use of open- versus close-ended questions. Atmosphere of the Judicial Interview The ability to create and to maintain an atmosphere conducive to questioning children is an often overlooked yet essential component of the interview process. An interviewer’s ability to establish a positive atmosphere from the outset plays a paramount role in
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the ultimate success or failure of the interview as a whole. Optimal conditions for questioning witnesses rarely exist naturally, but instead require deliberate effort by the interviewer. Questioners of children, including judges, who do not take extra measures to ensure such an atmosphere may seriously compromise the consistency and accuracy of children’s reports. Two strategies in particular—restructuring children’s everyday communication beliefs to better suit the interview task and using a supportive questioning style—should foster an interview atmosphere that maximizes children’s ability to provide useful information. Children usually bring to court many preconceived notions about communicating with adults based on their experiences outside the legal domain. Though these implicit conversational rules may facilitate children’s ordinary discourse, some are ill-suited for communicating in legal contexts. Research has shown, for example, that younger children tend to assume that adults are honest and sincere and that a speaker’s comments are always congruent with his or her true beliefs and purpose (Demorest, Meyer, Phelps, Gardner, & Winner, 1984; Grice, 1975). Children also learn at a very young age (i.e., 2 to 3 years) that conversation is an interactive, cooperative exchange between people that involves a discernible pattern of one person asking a question and the other providing an answer (Bloom, 1991). Children by the age of 2 years also believe that they should begin speaking immediately after their conversational partner has stopped doing so (Bloom, Rocissano, & Hood, 1976). Moreover, when an adult repeatedly questions a child about a specific topic or an event, the child may assume that the adult knows the correct answer to the question and therefore may employ a response ‘‘switching strategy’’ due to the demand characteristics inherent in the repeated questioning task (Siegal, Waters, & Dinwiddy, 1988); in other words, the child will try to give the ‘‘right’’ answer. These normative rules for communication may discourage children from scrutinizing information provided by adults and may intimidate children from asking for clarification or further explanation when they fail to understand a question or idea. Even when provided ambiguous, uninformative messages from an adult speaker, younger children (i.e., 6-year-olds) may fail to report that an adult has communicated inadequately (Sonnenschein & Whitehurst, 1980). One experimenter examined children’s comprehension of an adult communicator’s message and their tendency to ask clarifying questions by creating an experimental task in which children were asked to help evaluate the adequacy of instructions for a card game and a magic trick (Markman, 1977). For each of these tasks, crucial information was omitted from the instructions provided to the children. For example, the main objective of the card game was to determine who had the ‘‘special card’’; however, the special card was never designated or described in any way to
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the child. Markman observed that first and second graders required a higher number of ‘‘probing’’ questions (i.e., questions such as ‘‘Do you have any questions?’’ or ‘‘Did I forget to tell you anything?’’ intended to help children realize and report their lack of understanding) than did third graders. Even in conditions where children are presented blatantly incomplete information and encouraged to evaluate the adequacy of the adult speaker’s message they may fail to voluntarily express the need for clarification or to request additional explanation. Of perhaps even more concern are experimental findings that children may attempt to provide answers to unanswerable questions posed by adults (Hughes & Grieve, 1980) and may overestimate their ability to accurately communicate information to the message receiver (Asher, 1976). Hughes and Grieve asked 5- and 8-year-olds a series of ‘‘bizarre’’ questions (i.e., questions that did not permit direct answers, such as ‘‘Is milk bigger than water?’’ and ‘‘Is red heavier than yellow?’’) and discovered that children of both age groups frequently provided answers to such questions. Perry, McAuliff, Tam, and Claycomb (1995) and Carter, Bottoms, and Levine (1996) have also executed empirical studies that yielded findings mirroring those of the Hughes and Grieve study. Both groups of researchers have observed that children of various ages often attempt to answer questions that contain linguistically complex language features (e.g., double negatives, multiple parts, difficult vocabulary) that clearly exceed children’s developmental capabilities. What conclusions can we draw based on these experiments? In general it can be said that in certain situations, children may overestimate the veridicality of adults’ statements, may fail to communicate their lack of comprehension to an adult questioner, and may neglect to request additional clarifying information when they do not understand a message from an adult communicator. Moreover, children may attempt to answer extremely complex questions, even when a logical answer does not exist, and may overestimate their ability to accurately communicate information to the interviewer. Given these somewhat discouraging findings, what can judges do to circumvent the limitations associated with children’s enigmatic assumptions about communicating with adults? Interviewers can successfully restructure children’s preexisting notions about everyday communication to better accommodate the interviewing task. One of the most basic ways to achieve this goal is to begin the interview by explicitly stating what the interviewer expects of the child during the interview. In language a child can understand, interviewers should explain the purpose of the interview and stress that they are asking questions because they do not know the answers. Interviewers should remind children that they are not being questioned because they did something wrong or because they are in trouble, but because the judge needs the child’s help and input to
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make an informed decision. Framing the task as a cooperative endeavor to discover the truth minimizes the confrontational nature of the interview, thus reducing children’s worry about answering and expressing their lack of understanding or knowledge. Interviewers should ensure the child understands that there are no right or wrong answers as long as the child is telling the truth. Children should be encouraged throughout the interview to ask for clarification when they do not understand a question or something the interviewer has said. An intentionally difficult practice question may be particularly effective in illustrating when and how the child should ask someone to rephrase or restate a question or comment. Finally, interviewers should monitor children’s comprehension of the questions and the specific answers provided by the child. To ensure that the child possesses an adequate understanding of the questions and responses, an interviewer can simply ask the child to rephrase the question in his or her own words (e.g., ‘‘Please tell me what I just asked you in your own words’’) or to explain the meaning of a statement in his or her own words (e.g., ‘‘You used the word X. What do you mean by the word X?’’). Supportive Questioning Techniques A second tool that can help to create and maintain an atmosphere suitable for the effective interviewing of children is the use of supportive questioning techniques. Interviewing children in a supportive, nonthreatening manner can lead to beneficial outcomes that are desirable to both fact finders and children (Almerigogna, Ost, Akehurst, & Fluck, in press; Bottoms, Quas, & Davis, 2007; Carter et al., 1996; Goodman, Bottoms, Schwartz-Kenney, & Rudy, 1991; Marquis, Marshall, & Oskamp, 1972). One study explored how a reinforcing interviewer influenced the accuracy of children’s memories for a stressful medical procedure. Goodman, Bottoms, et al. questioned 3- to 7-year-old children about a recent visit to a medical clinic where they received an oral polio vaccine and inoculation. Interviewers used a positively reinforcing interview style with half of the children and questioned the other half in a standard fashion. The reinforcing interview style consisted of the interviewer providing children with juice and cookies at the beginning of the interview session, as well as providing various verbal and nonverbal cues (e.g., smiling and praising the child) intended to put the child at ease during questioning. The reinforcing interview style yielded certain benefits. Specifically, children in that interview condition made fewer inaccurate statements during free recall and made fewer commission errors (i.e., false statements) when asked questions containing incorrect information 4 weeks after their visit to the medical clinic. Also, agerelated differences in children’s tendency to falsely report abuse in the standard interviewing condition disappeared for children interviewed in a reinforcing manner.
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Subsequent research has confirmed these findings in general and provided a broader understanding of the positive effects associated with supportive questioning techniques (Carter et al., 1996; Davis & Bottoms, 2002). Interviewers in those studies questioned 5- to 7-year-olds about an interactive play event using one of two questioning styles. In the supportive condition, interviewers used a number of techniques intended to put the child at ease during the interview, such as beginning the interview with a brief introduction and rapport-building session to reduce the perceived power differential between interviewer and child; speaking in a warm, nonthreatening voice; displaying comforting nonverbal behaviors such as smiling and maintaining eye contact; and sitting in a relaxed body position during the interview. In the intimidating condition, interviewers used an interview style that lacked the features present in the supportive condition (e.g., interviewer made no effort to establish rapport with the child, spoke in a monotonic voice, maintained minimal eye contact, smiled infrequently, and sat upright in a formal position). Children interviewed using supportive techniques provided more accurate responses to certain types of questions (i.e., those that were less personally relevant and those that were non-abuse-related). More recent research by Almerigogna and colleagues (in press) found that 8- to 10-year-old children questioned by a supportive interviewer who smiled were more accurate and less likely to falsely report touching than were children questioned by a nonsupportive interviewer who was fidgety. Children in the supportive interview condition also reported that they did not know an answer more often than children in the nonsupportive condition. It appears that under certain circumstances a supportive, positively reinforcing interview style with children increases the accuracy of their reports. How else might this style of questioning increase the efficacy of interviews in custody cases? The beneficial effects of supportive questioning techniques may not be limited solely to increasing children’s accuracy (Marquis et al., 1972). In fact, those researchers did not find positive effects of supportive interviewing on participants’ responses to free recall and leading questions. Nevertheless, adults interviewed in a supportive manner tended to like the interviewer more, evaluated the way the interview was conducted more favorably, and were slightly less likely to believe the interviewer wanted biased answers than adults questioned in a challenging manner. Though these positive outcomes may appear less advantageous and less forensically relevant than the improved memory performance observed by others (e.g., Carter et al., 1996; Goodman, Bottoms, et al., 1991), children’s (and parents’) perceptions of procedural fairness are important: They may affect their reactions to a custody decision. Delays in children’s improvement after participating in legal proceedings, as reported by parents, have been
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associated with perceptions that the legal system was unfair and unsatisfactory (Goodman et al., 1992). Moreover, perceptions of procedural fairness were a powerful predictor of parents’ overall satisfaction with court and the final decision reached in actual child custody cases reviewed by Kitzmann and Emery (1993). Finally, the extent to which individuals perceive legal procedures to be fair and just influences the perceived legitimacy of authorities in legal settings (Tyler, 1990) and the willingness to voluntarily accept a judge’s decision (Lind & Tyler, 1988). As a result, supportive questioning techniques that enhance perceived procedural justice may lead children and parents to respond more positively to child custody litigation and decision making. It is also noteworthy that Marquis and colleagues (1972) observed that witnesses in a challenging interview condition believed the interviewer evaluated their performance and testimony more negatively than did witnesses in the supportive interview condition. Beliefs like these may inhibit a child’s testimony and hinder a child’s willingness to express confusion or to request additional information from the interviewer when necessary. If the supportive interviewing of children attenuates their perceptions that the interviewer is distrusting and skeptical, as it did with adults in the Marquis experiment, this is yet another reason for interviewers to use these techniques. By doing so, judges may help children give more complete and accurate testimony because children’s feelings of intimidation and isolation during the interview are decreased. Research on supportive questioning techniques in forensic settings is still developing, so additional research is needed before psychologists can provide informed, empirically sound recommendations to legal professionals about their use. The emerging picture appears promising in that a supportive or positively reinforcing questioning style has been shown to improve children’s testimonial performance for certain questions in several experiments. None of the studies reviewed here documented negative or adverse effects of supportive questioning on children or their reports. Although these studies do not represent the final word on supportive questioning techniques, they can provide guidance for interviewing children in custody litigation. In addition to employing some of the beneficial supportive questioning techniques from these studies, interviewers must carefully monitor both their verbal and nonverbal behavior when questioning children. Interviewers always should strive to communicate consistent verbal and nonverbal messages to the child. Merely encouraging a child to speak up when he or she does not understand something the interviewer has said or asked may not be sufficient to create the positive interviewing atmosphere necessary to maximize children’s testimonial capabilities. This may be the case especially if the interviewer’s verbal message is not accompanied by complementary
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nonverbal behaviors that reinforce the idea that the child should be as relaxed and as comfortable as possible. Nonverbal behaviors such as smiling, nodding, maintaining eye contact, and sitting in a relaxed posture may serve this very purpose. Future empirical studies should tease apart the effects of the various supportive interview components on children and their reports so that the specific verbal and nonverbal acts that result in optimal outcomes can be identified and used. Psychologists should continue to investigate how children’s reports are improved through supportive questioning. Remember, only one of the studies we reviewed found beneficial effects of supportive questioning on children’s free recall performance. Perhaps supportive interview techniques increase the accuracy of children’s responses only to direct questions. Experiments with children from different age groups are needed to determine whether age-related trends exist in the beneficial effects of supportive interviewing. Researchers should also examine children’s reactions to an overly supportive interviewer. Is there a threshold for the positive effects of supportive interviewing? Can someone be too supportive, to the point of unknowingly encouraging the reporting of partially or completely false reports from children? Age-Appropriate Vocabulary and Language Structures Two additional, closely related system variables are the vocabulary and linguistic complexity of the interview. A growing body of empirical research, from the laboratory and real-world situations, shows that children often do not understand many of the words, phrases, and questions commonly used by professionals in legal settings (e.g., Brennan & Brennan, 1988; Carter et al., 1996; Crawford & Bull, 2007; Korkman, Santtila, Drzewiecki, & Sandnabba, 2008; Perry et al., 1995). These studies also have revealed age-related differences in children’s ability to understand legal terminology and question forms such that older children tend to understand more than younger children (Flin et al., 1989; Freshwater & Aldridge, 1994; Saywitz et al., 1990). Unfortunately, adults’ tendency to overestimate children’s legal knowledge may serve to prolong their misunderstanding. Specifically, guardians ad litem in one recent study underestimated the percentage of 11-year-olds who had a vague or incorrect understanding of key legal terms and overestimated the percentage who had a full understanding (Eltringham & Aldridge, 2000). Walker (1993) linguistically analyzed one child’s trial testimony and found three sources of miscommunication: age-inappropriate vocabulary, complex syntax, and general ambiguity. Recall that Saywitz and colleagues (1990) examined elementary school children’s knowledge of terms commonly encountered in legal proceedings and found that many children were unable to provide basic definitions for words such as motion, petition, competence, and
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allegations. Many children mistook legal terms for similar-sounding words (e.g., ‘‘Jury is like the stuff ladies wear on their fingers and ears and around the neck’’) or attached a more familiar, nonlegal definition to the word (e.g., ‘‘A motion is like waving your arms’’). In Great Britain, Flin and colleagues (1989) found that none of the 6-year-old children in their sample understood the meaning of fundamental court-related terms such as evidence, lawyer, trial, witness, and going to court. Finally, evaluative research conducted in the United States and abroad confirms that legal professionals in actual cases use language that exceeds children’s comprehension (Cashmore, 1992; Davies & Noon, 1991; Flin, Bull, Boon, & Knox, 1993; Murray, 1995; Tidwell et al., 1990). In some instances, attorneys interviewed posttrial have openly admitted their inadequacies in questioning children and have expressed the need for specialized training in this area (Cashmore, 1992; Murray, 1995). How does children’s well-documented inability to understand fully the language used in legal settings affect their testimony? How does the mismatch between legal professionals’ and children’s language influence the accuracy of children’s accounts? Do children know when they don’t understand? Social scientists have begun to uncover answers to many research questions such as these. Australian researchers Brennan and Brennan (1988) studied how the linguistic demands placed on children in various contexts affect their ability to process language. Drawing on questions used in actual trials involving children, Brennan and Brennan interviewed children in elementary and high school and asked them to repeat three different types of questions verbatim. Children performed most poorly on the questions taken from court transcripts. The researchers concluded that as questions become increasingly courtroom-specific and combative in nature, children’s ability to respond in a truthful and meaningful way decreases dramatically. Based on those findings, Perry and collaborators (1995) explored how accurately children respond to question formats frequently encountered in court. They questioned children from four different age groups (kindergartners, fourth graders, ninth graders, and college students) about a previously viewed videotaped incident involving a brief interaction between a young girl and a man named Sam. Questions were phrased in either a normal, straightforward manner or contained linguistic and grammatical features common to the legal vernacular (e.g., negatives, multiple parts, difficult vocabulary, and complex syntax). Two particularly relevant findings emerged from this study. First, as indicated by decreased levels of response accuracy, both children and young adults had more difficulty answering ‘‘lawyerese’’ questions compared to those phrased in standard English. Second, students of all ages demonstrated impaired metacognitive functioning in that they often believed they knew the answers to the lawyerese questions when in reality they did not. Thus, without respondents
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knowing it, certain linguistic and grammatical features common to questions posed by legal professionals can obfuscate communication and make inaccurate reports more likely. Consistent with these findings, Carter and colleagues (1996) found that complex question forms can reduce the accuracy of children’s testimony about an experienced event. In that study, 5- and 7-year-old children interacted with an unfamiliar confederate in a play session and later answered questions of varying linguistic complexity. Children responding to complex, developmentally inappropriate questions were significantly less accurate than those answering simple questions. Moreover, similar to the findings of Perry et al. (1995), the vast majority of children interviewed did not effectively communicate their inability to answer the complex questions to the interviewer. Among the 30 children responding to more than 900 total possible questions, only 5 children openly expressed a lack of understanding or asked for clarification. They raised these issues on a total of 9 questions. Overall, those who question children can learn several important lessons from these empirical findings. Interviewers must vigilantly monitor their vocabulary and the linguistic complexity of their interviews to ensure that they do not exceed children’s comprehension. Phrases and words such as going to court, motion, and evidence that are commonplace in the legal system are often problematic for children to understand, especially those under 10 years of age. Certain question forms, such as those containing multiple parts that require mutually exclusive answers (e.g., ‘‘Did your mom leave you at home alone for a weekend and did she return with toys?’’) or those including negatives (e.g., ‘‘Is it not true that you’ve had problems getting along with your classmates at school?’’), may inadvertently thwart the truthseeking function of the interview and therefore should be avoided. Linguistically complex sentences should be rephrased or broken down into shorter, simpler sentences to facilitate communication between parties. Taking these steps should increase the likelihood of gaining accurate information from child witnesses, thus making decision making in custody cases more effective. Open- versus Close-Ended Questions The use of open- versus close-ended questions poses a perplexing dilemma in legal contexts. Open-ended questions are desirable because they give the child a chance to relate information from his or her point of view, using his or her own words, in a relatively uninterrupted manner. Although occasional prompts and cues may be necessary to guide the child, the nature and amount of information disclosed to the interviewer is largely determined by the child. On the other hand, closeended questions are often useful and necessary to elicit more detailed and focused reports. Certainly, interviewers often have specific questions for which they need answers. For professionals who work with children, the
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challenge of questioning children becomes one of attempting to mutually satisfy these two competing goals. A delicate balance must be struck between allowing children to freely provide their own accounts and, at the same time, obtaining adequately specific, detailed information. Empirical research has revealed a trade-off between the amount and the accuracy of information obtained via open- versus close-ended questions. Open-ended questions tend to yield highly accurate, although somewhat limited, accounts from children (Dent & Stephenson, 1979; Hutcheson, Baxter, Telfer, & Warden, 1995). Studies have examined children’s memories for a wide variety of events, ranging from fairly innocuous incidents such as playing games with an unfamiliar confederate (Goodman & Reed, 1986) or performing and imagining various activities (Gordon, Jens, Shaddock, & Watson, 1991) to more serious events, such as participating in pediatric examinations (Baker-Ward, Gordon, Ornstein, Larus, & Clubb, 1993; Steward & Steward, 1996), visiting the dentist (Vandermaas, Hess, & Baker-Ward, 1993), or receiving venipuncture or inoculations (Goodman, Hirschman, et al., 1991). These studies have consistently documented children’s tendency to accurately, but incompletely, report events in response to open-ended and free recall questions. In contrast, studies examining the effects of close-ended questions on children’s reports show that this type of question typically elicits more complete and thorough, yet less accurate, accounts than open-ended questions do (Dent, 1992; King & Yuille, 1987). The additional information gained by using close-ended questions often comes at the cost of decreased accuracy. How does the age of a witness affect the completeness and accuracy of his or her responses to open- versus close-ended questions? Researchers using various methodologies have studied witnesses of different ages and have found that as witness age increases, so does the completeness of responses for both types of questions (Hutcheson et al., 1995; Laumann & Elliott, 1992). Similarly, as witness age increases, so do the levels of response accuracy for both open- and close-ended questions (Laumann & Elliott, 1992; Vandermaas et al., 1993). However, within each age group, the general trade-off between response completeness and accuracy for open- versus close-ended questions remains similar such that open-ended questions result in more accurate yet incomplete reports, whereas close-ended questions result in more complete yet less accurate reports. Based on the information gleaned from these experiments, professionals need to carefully contemplate the nature, quantity, and quality of the testimony they seek from children and adjust their style of questioning accordingly. Exclusive reliance on one question type is often infeasible, and sometimes detrimental. Saywitz et al. (1991) interviewed children about physical examinations involving anal or genital touch using a combined free
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recall (prompted by an open-ended question) and direct question procedure. They found that 88% of the females who experienced vaginal touch and 89% who experienced anal touch failed to report these incidents during free recall alone. However, when asked directly about the occurrence of these activities, 86% correctly reported vaginal touch and 69% correctly disclosed vaginal touch. Thus important information may go unreported when judges rely exclusively on open-ended questions. Most researchers agree that interviewers should strive to maximize the use of open-ended questions when interviewing children. Others (e.g., Lamb, Sternberg, & Esplin, 1994; Steward & Steward, 1996) have recommended that when more specific, directive questions are necessary during the interview, they should be followed by open-ended prompts to help shift the child back to the free recall response style (Lamb et al., 1996). Moreover, if a professional combines the open- and close-ended questioning strategies, every effort should be made to let the child relate the information in his or her own words before posing more specific, close-ended questions. This mixed strategy might best accommodate the needs and interests of decision makers in child custody cases while minimizing the inaccuracy of their reports. Misleading Questions and Children’s Suggestibility Some forms of close-ended questions, specifically those that introduce misleading information to the child, have been shown to elicit less accurate information from children. In this sense children, like adults, are suggestible or susceptible to misleading information. In the laboratory setting, it is quite easy to experimentally control children’s exposure to misleading or incorrect information because researchers know whether questions contain misleading or suggestive information. In the real world, however, judges, attorneys, and criminal investigators seldom have such valuable information. Thus an additional danger of using close-ended or specific questions is the risk that these questions contain misleading information that can decrease the accuracy of children’s memory for the event. When asking children specific questions about their home life, for example, interviewers risk introducing incorrect information, which, in turn, may alter or damage a child’s original memory trace for a given event. As a result, interviewers must be extremely careful to avoid questions containing misleading or suggestive information so that they do not unintentionally contaminate children’s memories. Although our discussion of misinformation and suggestibility thus far may bring to mind blatantly egregious errors or extremely suggestive questioning techniques, even subtle changes in the wording of a question has been shown to result in dramatic differences in children’s, as well as adults’, overall accuracy of memory for an event. Dale, Loftus, and Rathbun (1978) interviewed preschool children after they viewed a series of short films. In total,
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16 different question forms were designed to test children’s memories for elements that either did or did not appear in the films. Within these different question forms, the researchers manipulated whether each question contained affirmation or negation (e.g., ‘‘Did you see . . . ?’’ versus ‘‘Didn’t you see . . . ?’’) and an article or quantifier (e.g., the versus a for singular entities and some versus any for plural entities). When children were asked questions about an entity that did not appear in the film, they were particularly likely to answer yes to the question forms ‘‘Did you see the . . . ,’’ ‘‘Did you see any . . . ,’’ and ‘‘Didn’t you see some . . . ?’’ Thus, even minor changes in question composition can affect the accuracy of children’s and adults’ memories. Of course, the extent to which a child is susceptible to suggestion is influenced by other variables. One of these variables is the child’s age. Witness suggestibility research has yielded mixed findings, with some studies indicating that younger children tend to be more suggestible than older children and adults (e.g., Ceci et al., 1987; Cohen & Harnick, 1980; Coxon & Valentine, 1997) and others indicating that children tend to be no more suggestible than adults (e.g., Flin, Boon, Knox, & Bull, 1992; Marin, Holmes, Guth, & Kovac, 1979). In their seminal review of this literature, Ceci and Bruck (1993) concluded that significant age differences in suggestibility exist, with preschoolers being particularly susceptible to misleading information compared to older children and adults. More recent reviews of the literature reflect this same general age trend (Ceci & Friedman, 2000; Lyon, 1999; Poole & Lamb, 1998; Quas et al., 2000). Research also suggests that the level of a child’s participation in a witnessed event influences the magnitude of the suggestibility effect. Children recall activities that they have performed more easily than activities that they have observed other people perform or describe (Baker-Ward, Hess, & Flanagan, 1990; Gobbo, Mega, & Pipe, 2002). Participation also helps make children resistant to suggestion. Tobey and Goodman (1992) tested children’s susceptibility to misleading questions while varying whether the child was a participant in or a mere witness to an event. Preschool children either interacted with a ‘‘babysitter’’ or watched another child play with the babysitter. Those researchers found that children’s free recall and their answers to misleading questions were more accurate when they actively participated in an event than when they passively observed an event. Similarly, Rudy and Goodman (1991) found that participation increased children’s resistance to suggestion. Thus children’s reports about events in which they participated are likely to be more accurate than their reports about events they merely witnessed. Finally, the characteristics about the source of the misleading information may also influence the susceptibility of children to suggestion. Ceci and
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colleagues (1987) found that preschool children may be more likely to incorporate into their memory inaccurate information about an event when the misleading information is provided by an adult source (high prestige) versus a same-age peer (low prestige). Credible adults are also more likely to mislead children than are adults who have been discredited. Lampinen and Smith (1995) found that when children were asked suggestive questions by an adult who was introduced as ‘‘a silly man’’ they were unlikely to be misled, whereas children were misled when asked suggestive questions by a credible adult. The credibility of the source can also be manipulated by telling children whether the interviewer is knowledgeable about the event in question. Toglia, Ross, Ceci, and Hembrooke (1992) found that children who were interviewed by an adult claiming to know a lot about the witnessed event were more likely to be misled than were children who were interviewed by an adult claiming to know little about the witnessed event. This research on the credibility of the interviewer suggests that children may be particularly likely to be misled by judges, whom children view as a highly authoritative source. However, research also suggests that children may be less likely to accept misleading information from a credible source if they are warned that the source may try to trick them by making incorrect statements (McDevitt & Carroll, 1988). During an interview a judge may want to inform children that they know more about the witnessed events than the judge does and that the judge may accidentally say something that the child knows is untrue. This warning could help children resist the effects of any misleading information a judge may unwittingly introduce during the custodial interview. One specific type of misleading question deserves special mention. In custody disputes involving allegations of child sexual abuse, decision makers should be particularly concerned about children’s susceptibility to suggestions that they have been abused. Some children will misreport painful events (Ceci, Loftus, Leichtman, & Bruck, 1994; Ornstein, et al., 1995) and even genital, anal, or other abuse-relevant touch (Bruck, et al., 1995; Eisen & Goodman, 1998; Goodman & Clarke-Stewart, 1991; Goodman et al., 1997; Rudy & Goodman, 1991; Saywitz et al., 1991; Steward & Steward, 1996). Examples of abuse-relevant false statements include claiming a strange man ‘‘put something yucky into their mouths’’ during a visit to a science exhibit (Poole & Lindsay, 1995), took off their clothes and kissed them (Lepore & Sesco, 1994), and inserted objects in their anogenital cavities (Bruck et al., 1995). Even though some children will falsely report genital and anal touch, most do not (in the majority of studies just cited, fewer than 50% made false reports), and in general children appear to be less susceptible to suggestions about abusive versus nonabusive behaviors (Eisen, Goodman, Qin, & Davis,
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2002, 2007; Rudy & Goodman, 1991; Saywitz et al., 1991; Steward & Steward, 1996). However, this resistance to being misled about abusive behaviors can be overcome if an interviewer uses an intimidating interview style (Goodman, Bottoms, et al., 1991). Although it is unlikely that children will be misled into falsely reporting sexual abuse during a judicial interview, we recommend that judges carefully limit the extent to which they suggest this type of information to children during their interviews. Repeated Questioning Some family court judges have advocated eliciting relevant information from a child when the child is reluctant to express a clear custodial preference (Newman & Collester, 1980). When coaxing children to provide information about their family life, interviewers may ask repeated questions about the same topic to elicit more information. This type of repeated questioning on a particular topic could have one of two effects on children’s memory. On the one hand, if a child is asked to repeatedly recall an event over time, it is possible that the repeated retrieval of the memory may reinforce or strengthen the representation of the event in memory, resulting in enhanced memory for the event (Fivush & Schwarzmueller, 1995). On the other hand, if children are repeatedly asked about the same events, they may take the repetitive nature of the questioning as a sign that they provided the wrong answer to the question the first time it was asked (Siegal et al., 1988); otherwise why would the interviewer repeat an answered question (Grice, 1975)? Psychologists have begun to examine the impact of repeated questioning on the accuracy of children’s event reports. Some studies have found that repeated interviews (i.e., interviewing a child once and then asking the same questions during a second interview) enhance the accuracy of children’s memory for events (Baker-Ward et al., 1990; Flin et al., 1992; Goodman, Bottoms, et al., 1991; Memon, Wark, Bull, & Koehnken, 1997), or at least do not decrease the accuracy of their reports (Baker-Ward et al., 1993; Tucker, Mertin, & Luszcz, 1990). Repeated questioning can take several forms, which may have a decidedly different impact on the accuracy of the memory reported by the child. Children may be subjected to multiple interviews, with the adult asking the same questions in each interview, or children may be asked repeated questions within the same interview. When open-ended questions are repeated over time, appearing in different interviews between which a significant amount of time has elapsed, the repetition may have no effect on the accuracy of children’s responses. Children and adults in one study witnessed an interaction between a male and a female experimenter (Poole & White, 1991). During the course of this exchange, the man and woman argued over a pen, the man grabbed the woman’s arm to wrest the pen from her grasp, and the woman claimed to
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be hurt by this gesture. Participants were interviewed either once, a week after the event, or twice, a few minutes after the event and 1 week later. The interviews consisted of seven open-ended questions that were repeated three times during the course of each interview. The accuracy of children who were repeatedly questioned over different interview sessions did not differ from the accuracy of children who were questioned a single time. In a follow-up study, Poole and White (1993) interviewed a subset of the participants from their earlier study after a 2-year delay using the same procedure as was used in the previous interviews. There were still no differences in the accuracy of the memories reported by the children who had been questioned once or twice in the original study, even after this lengthy delay. Similarly, Cassidy and DeLoache (1995) found that children provided consistent responses to repeated questions for specific information (as opposed to open-ended questions) when the repeated questions appeared in five interviews that were several weeks apart. More recent research has shown that although information repeated across interviews tends to be highly accurate, information introduced for the first time in a subsequent interview or after long delays is not (Pipe, Gee, Wilson, & Egerton, 1999; Salmon & Pipe, 2000). How accurately do children respond to repeated questions contained in the same interview? Research by Memon and Vartoukian (1996) suggests that repetition of questions for a second time in the same interview will not affect the accuracy of children’s responses to either open-ended or specific questions. Other evidence suggests that preschool children may be particularly likely to change their responses in the face of repeated questions (Poole & White, 1991; Siegal et al., 1988), especially if the repeated questions become increasingly suggestive over time (Cassel, Roebers, & Bjorklund, 1996). Children are particularly likely to change their responses to repeated questions if they conclude that the interviewer is repeating questions because they answered incorrectly the first time the question was asked or because the interviewer is looking for a different answer (Siegal et al., 1988). Thus interviewers should avoid repeated questioning in an attempt to elicit additional information from very young children.
CONCLUSION Because the research that we have discussed has not been conducted to address questions that are specific to custody cases, there are limitations to our knowledge about the accuracy of children’s reports in this context. Scant research has examined the accuracy of children’s memory for family life (cf. Fivush & Shukat, 1995). Moreover, the stress levels present while the
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children are being interviewed in an experiment are necessarily lower—for ethical reasons—than the stress that children can expect to experience while being interviewed in judge’s chambers or testifying in court. Despite these limitations, we believe that research on child witness memory has important implications for the treatment of children in custody cases and for judicial decision making in these cases. Do judges have accurate beliefs about children’s ability to remember events? If judges routinely ignore information provided by children under the age of 10 about the quality of their home life (Newman & Collester, 1980; Scott et al., 1988), they may be neglecting valuable information. Generally, judges seem to underestimate children’s abilities by dismissing all information provided by young children. Research on the accuracy of children’s autobiographical information demonstrates that even preschool children can provide accurate accounts of daily activities and special events (Fivush & Shukat, 1995). However, not all information children provide is accurate; therefore it is critical to examine the factors associated with the accuracy of children’s memory. In our discussion of the variables that moderate the accuracy of children’s reports we have suggested that triers of fact pay attention to two classes of variables: estimator and system variables. Although there is little that can be done to control the influence of estimator variables (e.g., age, individual differences, and parental coaching) on children’s memory, judges need to be aware of the conditions under which children are providing information. Parental pressure to conceal information may or may not exist in any given case. If information about the presence of parental pressure is present, the trier of fact can then make a decision about the appropriate weight to give the child’s testimony in light of the research we have reviewed. Much can be done, however, to increase the accuracy of children’s reports if system variables are considered. Children should be adequately prepared for their day in court if they are to give accurate testimony. Judges should work to maintain a supportive environment in the courtroom or in chambers so that the child is not intimidated by the questioning. Judges and attorneys must take care to use age-appropriate language and sentence structure. Although attorneys may be reluctant to use open-ended questions because they would lose control of the evidence presentation, we strongly encourage the use of open-ended questions when interviewing children. Not only do open-ended questions reduce the opportunity for the interviewer to introduce misleading or suggestive material into the questions being asked, but children can accurately respond to open-ended questions even if they are repeated. If these recommendations are followed, it is more likely that children will provide the court with useful and accurate information about their living conditions.
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Templeton, L. M., & Wilcox, S. A. (2000). A tale of two representations: The misinformation effect and children’s developing theory of mind. Child Development, 71, 402–416. Thierry, K. L., Spence, M. J., & Memon, A. (2001). Before misinformation is encountered: Source monitoring decreases child witness suggestibility. Journal of Cognition and Development, 2, 1–26. Thompson, W. C., Clarke-Stewart, A., & Lepore, S. J. (1997). What did the janitor do? Suggestive interviewing and the accuracy of children’s accounts. Law and Human Behavior, 21, 405–426. Tidwell, R. P., Lipovsky, J. A., Crisp, J., Plum, H. J., Kilpatrick, D. G., Saunders, B. E., et al. (1990). Child victims and witnesses (Final report, Grant No. 88–11J-D-064). Washington, DC: Crime Victim Center. Tobey, A. E., & Goodman, G. S. (1992). Children’s eyewitness memory: Effects of participation and forensic context. Child Abuse and Neglect, 16, 779–296. Toglia, M. P., Ross, D. F., Ceci, S. J., & Hembrooke, H. (1992). The suggestibility of children’s memory: A social-psychological and cognitive interpretation. In M. L. Howe, C. J. Brainerd, & V. F. Reyna (Eds.), Development of long-term retention (pp. 217–241). New York: Springer-Verlag. Tucker, A., Mertin, P., & Luszcz, M. (1990). The effect of a repeated interview on young children’s eyewitness memory. Australian and New Zealand Journal of Criminology, 23, 117–124. Tye, M. C., Amato, S. L., Honts, C. R., Devitt, M. K., & Peters, D. (1999). The willingness of children to lie and the assessment of credibility in an ecologically relevant laboratory setting. Applied Developmental Science, 3, 92–109. Tyler, T. R. (1990). Why people obey the law. New Haven, CT: Yale University Press. Vandermaas, M. O., Hess, T. M., & Baker-Ward, L. (1993). Does anxiety affect children’s reports of memory for a stressful event? Applied Cognitive Psychology, 7, 109–127. Vrij, A., & Bush, N. (2000). Differences in suggestibility between 5–6 and 10–11 year olds: The relationship with self confidence. Psychology, Crime and Law, 6, 127–138. Wagenaar, W. A. (1986). My memory: A study of autobiographic memory over six years. Cognitive Psychology, 18, 225–252. Wagenaar, W. A., & Groeneweg, J. (1990). The memory of concentration camp survivors. Applied Cognitive Psychology, 4, 77–87. Wagland, P., & Bussey, K. (2005). Factors that facilitate and undermine children’s beliefs about truth telling. Law and Human Behavior, 29, 639–655. Walker, A. G. (1993). Questioning young children in court: A linguistic case study. Law and Human Behavior, 17, 59–81. Warren-Leubecker, A., Tate, C. S., Hinton, I. D., & Ozbek, I. N. (1989). What do children know about the legal system and when do they know it? First steps down a less traveled path in child witness research. In S. J. Ceci, D. F. Ross, & M. P. Toglia (Eds.), Perspectives on children’s testimony (pp. 158–183). New York: Springer-Verlag. Welch Ross, M. K., Diecidue, K., & Miller, S. A. (1997). Young children’s understanding of conflicting mental representation predicts suggestibility. Developmental Psychology, 33, 43–53.
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Wells, G. L. (1978). Applied eyewitness-testimony research: System variables and estimator variables. Journal of Personality and Social Psychology, 36, 1546–1557. Young, K., Powell, M. B., & Dudgeon, P. (2003). Individual differences in children’s suggestibility: A comparison between intellectually disabled and mainstream samples. Personality and Individual Differences, 35, 31–49. Zaragoza, M. S. (1987). Memory, suggestibility, and eyewitness testimony in children and adults. In S. J. Ceci, M. P. Toglia, & D. F. Ross (Eds.), Children’s eyewitness memory (pp. 53–78). New York: Springer-Verlag. Zaragoza, M. S. (1991). Preschool children’s susceptibility to memory impairment. In J. Doris (Ed.), The suggestibility of children’s recollections: Implications for eyewitness testimony (pp. 27–39). Washington, DC: American Psychological Association.
CHAPTER 6
The Importance of Attachment in Custody Evaluations: Toward the Best Interest of the Child LOUIS KRAUS and KAYLA POPE
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N SUITS INVOLVING the determination of custody, courts have applied a ‘‘best interest of the child’’ standard to determine which environment will provide the best opportunity for the child’s physical, psychological, and emotional development. Among the factors courts consider is the relationship between each parent and the child. The inclusion of this criterion and the mode in which it is assessed has largely been informed by research in child development, which has helped elucidate the importance of attachment in normal development. Attachment may be broadly defined as ‘‘an enduring emotional bond uniting one person with another . . . commonly manifested in efforts to seek proximity and contact to the attachment figure, especially when the individual is under stress’’ (Thompson, 1996, p. 127). Throughout the twentieth century researchers have worked to clarify the function and nature of attachment in developing children (Holmes, 1995). Starting in the 1970s, these ideas were applied to custody issues (Goldstein, Freud, & Solnit, 1979). Although custody recommendations are based on a variety of issues beyond the attachment of children to their caregivers, the importance of the relationship between children and caregivers is now universally recognized as an important component for deciding custody arrangements. However, detailed clarification of the significance of attachments, how they can be measured, and their relations to other factors that might be considered in custody evaluations remain active areas of investigation. This chapter describes the concept of attachment, its developmental significance, some of the means of
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measuring it, and its relevance to custody decisions. We also examine the importance of the bond of the caregiver to the child. HISTORICAL BACKGROUND Sigmund Freud (1905) described the child’s earliest attachment to the mother in terms of biological needs and sensual pleasures. Extending Freud’s ideas, child psychoanalyst Melanie Klein posited that early psychological development involved making an image of the mother and the mother’s functions part of the infant’s psyche. Her focus emphasized the child’s fantasies, as evidenced in the child’s play, over the actual qualities of the mother in determining the child’s experience of the caregiver. From these ideas, and the work of other psychoanalysts, there emerged a well-developed clinical theory, object relations theory, that attempts to describe how stable configurations of psychological functioning result from relations with other people (J. Greenberg & Mitchell, 1983). These theories evolved from the in-depth study of patients in psychoanalysis. The tragedies of World War II led to the direct observation of the impact of loss and separations from caretakers in young children. The forced separation of London’s young children and their families during the London Blitz led Anna Freud and Dorothy Burlingham to study the psychological impact of these separations. Anna Freud used direct infant observation to investigate the effects of loss on the development of infants and toddlers. She experimented with interventions designed to minimize the observed traumatic consequences and described the psychological solutions that the children found for themselves. One of her central findings was that children did better insofar as they were able to remain with their primary caregiver. A further consequence of World War II was that many children in Europe were left without parents and were placed in orphanages for their care. In an effort to understand the impact of institutionalized care on development, Rene Spitz (1945, 1946) spent time observing infants 1 year and younger who were being raised in these highly sanitized environments with minimal human contact. She compared these institutionalized infants with children who were being raised by unwed, incarcerated mothers. What she found was that despite the hygienic environment, the children in orphanages became ill and died at a far higher rate than infants who remained with their incarcerated mothers. The orphanage-raised children who survived became unresponsive and immobile. Often they lay so still for so long that their bodies made indentations in their mattresses. Spitz labeled the morbidity and mortality she observed in response to early separation ‘‘anaclitic depression’’ (Spitz, 1946).
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A second line of inquiry that helped to develop our understanding of attachment comes from the work of John Bowlby, an ethologist and psychoanalyst. Bowlby’s ideas regarding the importance of attachment were stimulated by the work of the German ethnologist Konrad Lorenz, who investigated mother-infant relationships in geese. Lorenz (1935/1957) reported that goslings ‘‘imprint’’ on their mothers in a way that suggests a biological bonding mechanism wired into infant organisms. The concept that there could be a biological predisposition for human attachment and related behaviors challenged object relations and dynamic theories of development that characterized attachment as a consequence of other drives. Bowlby (1969) applied these ideas to human infants. He proposed that humans were born with a biological drive to attain proximity to the caretaker. The need for proximity is initially to ensure the physical safety of the child and later evolves into a need to maintain psychological closeness (Fonagy & Target, 2003). In 1950 Bowlby (1980) was asked by the World Health Organization to advise on the mental health of homeless children. He explored childhood loss and its ramifications from multiple viewpoints. In particular, he integrated aspects of classical Freudian theory with evolution theory and attempted to remain close to empirical data. This led to a major synthesis published in 1969, Attachment, the first of three volumes devoted to attachment, separation, and loss (Bowlby, 1969, 1973, 1980). Although Bowlby acknowledged the importance of Sigmund Freud’s idea that attachment grows from physiological need and sensual pleasure, he faulted Freud’s lack of direct infant observation. Looking at the same developmental lines as Freud did but from a different perspective, Bowlby held that our understanding of personality development is enhanced by observing how a young child behaves when she is with her mother and when she is on her own. Empirical findings, such as Spitz’s observation, strongly suggested that children require more than having their physiological needs met if they are to thrive. Combining these observations with the argument that proximity to caretakers greatly increases the chance of survival for mammalian young, Bowlby argued that mammals have a primary tendency to seek proximity to their caretaker, especially in times of danger. In humans, this tendency will later form the basis of much psychological growth. Attachment is needed to help form the basic components of humanness. Bowlby found that responses to separation from the primary caretaker include love, hate, ambivalence, insecurity, anxiety, mourning, displacement (the attribution of negative aspects of the caretaker to other, less important persons), splitting (experiencing another as all good or all bad), and repression (the barring of unacceptable ideas from awareness). Bowlby’s careful formulations gained considerable emotional force from a group of powerful films created by the Robertsons. These documentaries depicted children separated from their parents. In one film (Robertson &
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Robertson, 1969) we follow John, a likeable and loving child of 2.5 years who is placed in residential care while his mother is hospitalized for 9 days to deliver a baby. Over an amazingly brief period, John deteriorates from an active competent youngster, capable of being easily soothed and finding sources of pleasure and comfort, into a child who is chronically miserable, progressively less responsive to attempts to calm him physically, and finally in a state of unresponsive depression. The pleasure and joy that characterized him seem to have disappeared. Most strikingly, when he is finally reunited with his mother, with whom he had previously enjoyed an extremely positive relationship, he pulls away from her and refuses to look at her; when finally, after much coaxing, he does look, his expression is best characterized as hatred. Bowlby’s early work dealt with the separation of children from their primary attachment figures for periods up to several weeks. In 1969, Ainsworth, Salter, and Witting developed a standardized laboratory procedure, known as the Strange Situation test, to assess the impact of separation. Ainsworth used this procedure to evaluate the type of attachment formed between children 18 months of age and younger and their primary attachment figures (Ainsworth, Blehar, Waters, & Wall, 1978). The procedure allowed researchers to standardize and assess attachment in the laboratory using scientific method. Ainsworth’s standardized measure has been modified and continues to be used as a framework to analyze parent-child interactions. Other systematic measures of attachment were developed and continue under development. These measures attempt to assess attachment during various developmental phases. A major problem facing researchers is to demonstrate that these measures tap a common, underlying psychological configuration because the manifestations of attachment at different ages vary markedly. Starting in 1950 a group of psychoanalysts, led by Saul Altshul and Joan Fleming, studied the impact of early parent loss on adult psychological function as it emerged in the treatment of psychoanalytic patients. They found that though children continue to develop, symptomatic traumatic scars emerge during certain developmental periods throughout life. These adult survivors of childhood bereavement were described as exhibiting developmental arrests (i.e., failure to continue to develop in certain sectors of the personality), distortions of reality testing (the ability to differentiate fantasy from material reality), and chronic maladaptive patterns of behavior (Altshul, 1988). Children and adults are differently affected by loss. Even though a child may be able to have more than one attachment figure and to form new attachments, early parent loss, whatever the cause, negatively affects children by increasing the insecurity in relationships and often leaving segments of development incomplete. During the 1970s Klaus and Kennell (1982) tried to apply Lorenz’s theory of bonding to humans. They theorized that for ‘‘proper bonding’’ to occur,
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newborns needed to be placed immediately with their mothers. This led to a brief fad in which mothers, convinced by these publications, believed they needed immediate contact with their newborns to be properly bonded (Klaus & Kennell, 1982). Without this immediate connection, mothers feared, and a few professionals suggested, their children were doomed to a life of psychopathology. This led to tragicomic events, such as the young mother who ran down a hospital corridor, blood dripping from a ripped-out IV cord, yelling, ‘‘I haven’t yet bonded with my child.’’ The concept of bonding, in the sense of a process analogous to Lorenz’s observations with geese, has not been observed in human infants. The faddish concept lingers in some court systems, particularly among certain well-meaning, but ill-informed, child welfare workers. The term bonding has persisted in some legal contexts and has been used in a variety of ways. As defined by Lorenz (1935/1957) and Klaus and Kennell (1982), it refers to a form of imprinting not observed in humans. Currently it is often used vaguely to describe the parents’ relationship to the child. The components of the parent-child relationship are critical to the best interest of the child. They include emotional availability, commitment, protection, providing organized structure, responsiveness to the child’s needs, teaching, appropriate play, and discipline (Sameroff & Emde, 1989); it is in this sense that we use the term in this chapter. Attachment without bonding, though it occurs, leaves the child helpless in an unresponsive environment. Sometimes experts opine on the child’s best interest based solely on the observation that a parent is the primary attachment figure, without focusing on other important issues of parenting, including the parent’s capacity to meet the child’s needs or the complementary bond of parent to child. THE IMPORTANCE OF ATTACHMENT AND PARENT AND CHILD CONTRIBUTIONS Children need consistent parenting to develop in an age-appropriate way. Attachment refers to the specific tie of an infant to the primary caregiver, which generally comes into focus during the first few months of life. The importance of attachment changes as the child develops. During the first months of life, a secure attachment between the child and the caretaker provides the child with a safe environment where the child will be protected from harm and have his or her needs met. As development continues and children begin to interact more with their environment, a secure attachment with the caregiver provides them with the means to regulate their emotional responses to the environment, with the caregiver helping them to soothe themselves in response to emotionally charged situations (Sroufe, 1996). Thus physical proximity of the caregiver is replaced by psychological proximity
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(Fonagy & Target, 2003). Through repeated interactions with the caregiver, the child begins to internalize the caregiver, in the sense of being able to evoke needed experience of the attachment figure in his or her absence. The ability to evoke the presence of the caregiver serves to encourage the child’s exploratory behaviors as the child enters the toddler stage and beyond. The securely attached child will be more apt to engage in new activities and will seek out new experiences. This exploratory behavior is critical for fostering the child’s cognitive development and sense of competence in mastering new skills. As the child enters school and through late childhood and adolescence, internalization of a caretaker who was responsive to the child’s needs will be reflected in children’s view that others will also be responsive to their needs and will foster their ability to form new relationships (Sroufe et al., 1993). Thus children who are securely attached are more likely to be resilient, selfreliant, socially oriented, and empathic and have higher self-esteem (Fonagy & Target, 2003). Characteristics of the infant contribute to parental bonding and help to explain the lack of concordance among siblings with respect to the type of attachments formed with parents. From birth many infants have a stable temperament, which continues to shape their personality throughout life. Studying infant temperament and its interaction with parent-child relations, Chess and Thomas (1977) describe each influencing the other in an evolving process. They developed nine categories of childhood temperament and three general descriptions of children: the ‘‘easy child,’’ the ‘‘difficult child,’’ and the ‘‘slow to warm up’’ child. They relate development to these temperaments and to the ‘‘goodness of fit’’ between child and parent. By goodness of fit they mean the extent to which the parents’ personalities and preferences correspond to the needs of the child and vice versa. Thus an active demanding child may delight parents whose own personalities lead them to positively value these qualities but may prove undesirable to parents whose own energy level is such that the youngster seems too demanding to them. Similarly, unusually calm parents may do well with a child who is ‘‘difficult,’’ whereas parents who tend to be reactive are likely to intensify the troublesomeness of the youngster. For this reason custody evaluators must always ask to what extent a parent fits a particular child and to what extent the parent is bonded to the child, as well as the extent to which the child is attached to the parent. Parental characteristics are also important determinants in evaluating the likelihood that a secure attachment will be formed. A critical consideration is the attachment style of the parents, which will influence their ability to form a relationship with the child. The importance of the parent’s attachment style has been demonstrated in more than a dozen studies that have shown that a parent’s attachment style can be used to predict the attachment classification of an unborn child (van IJzendoorn, 1995). Thus parents found to be
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dismissive are likely to have avoidant children, and parents who are preoccupied are found to have children who are anxious/resistant. Another important consideration is parents’ representation of the child and their ability to understand the experience of the child in a given situation. Thus parents with a high degree of empathy and an ability to accurately reflect a child’s experience are more likely to have securely attached children (Fonagy et al., 1993). Several other factors, including high stress, single parenting, criminality, and mental illness, have also been shown to be related to the formation of a secure attachment, but research indicates that these factors are mediated by their effect on parenting style and parental availability (Fonagy et al., 1994; Nair & Murray, 2005). For those using ideas from attachment theory to form opinions about custody and visitation, one element of the history of attachment research is particularly problematic. Much more research and interest over the past 40 years has been devoted to the mother-infant relationship than to the fatherchild relationship. When fathers and infants are studied, the subjects are often fathers who are unusually interested in attachment issues, raising the question of a significantly skewed sample (Ainsworth et al., 1978). The issue of father-infant attachment needs further study to ensure that scientifically informed recommendations are not biased by lack of information about attachments to fathers. In particular, the issue of the father as a secondary attachment figure and how potential disruption of this relationship may affect the child needs to be systematically explored. The need to better understand the importance of father-child attachment is also borne out by research that has highlighted the father’s role in the formation of prosocial behavior. It has been proposed that the formation of a conscience begins during the second year of life and is nurtured by the formation of a close alliance with a parent and is optimized when an alliance is formed with both parents. Through these relationships, the child learns to regulate his or her aggression and pursuit of self-gratification to remain socially and emotionally connected. Thus children learn to balance their needs with the needs of the relationship. The formation of an alliance between father and child is particularly important in children who are temperamentally irritable or anger-prone and are at increased risk for the development of externalizing behavior in childhood, which can lead to criminal behavior later in development (Bretherton, Lambert, & Golby, 2005). An illustration of the father’s roles in the development of prosocial behavior is provided by Marcus and Mirle’s (1990) study of the attachment of 21 girls and 23 boys using a structured interview (the Parent Attachment Structured Interview). They described attachment of preschool and young school-age children from the perspective of the child’s relationship with the primary caregiver. For boys, they a found a positive correlation between
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attachment to their father and future social competence. The boys with more positive attachments to their father exhibited less anxiety and depression than less attached boys. Maternal positive attachment for these boys was also positively related to social competence. Girls who had a greater positive attachment to their father also had less anxiety and depression. However, contrary to the expectations of the study, a greater maternal positive attachment for girls predicted less social competence. These researchers note that further study is necessary to better understand gender-related differences in attachment. The importance of the father in the development of prosocial behavior continues into the adolescent period, but the research to date suggests that this is largely mediated by the quality of the marital relationship. As demonstrated in a study by Markiewicz, Doyle, and Brendgen (2001), adolescents’ attachment security with mother, father, and friends could be predicted based on the adolescent’s perceptions of the quality of the marital relationship. Further, the quality of the marital relationship was also highly correlated with the adolescent’s ability to form close relationships with peers and to demonstrate prosocial behavior in these relationships. Research to date that has studied the father-child relationship provides some information on the environmental factors that can undermine the strength of this relationship. Thus it has been shown that the father-child attachment is more apt to be disrupted or made less secure as a result of divorce than is the relationship between the mother and child (Owen & Cox, 1997). Likewise, the nature of the father-child attachment is more closely related to the quality of the relationship between the parents than is the mother-child attachment (Frosch, Mangelsdorf, & McHale, 2000). Thus, if the relationship between the parents can be characterized as secure, the child will be more likely to form a secure attachment with the father. Finally, it has been shown that the concordance of parenting styles can influence the type of attachment that will form between the child and the father (Caldera & Lindsey, 2006). Competitive parenting, characterized by undermining the other parent’s authority, inconsistency in setting limits, and showing favoritism, has been correlated with the formation of an insecure attachment between father and child (more often) and the development of parent-child alliances that are often resistant to change. In the context of a custody and visitation evaluation, all of these factors must be carefully evaluated. Parental alienation, competitive parenting, and a disruption of the relationship between the parents are more likely than not to be part of the family dynamics, especially in the early stages of the separation and divorce process. Weighing the importance of keeping both parents involved in the child’s life against the detrimental effects of exposure to parental conflict can be a challenging undertaking.
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DISORDERS OF ATTACHMENT Premature or long separations from a primary attachment figure can be developmentally disruptive, and the results can be devastating. This is evidenced by the extreme disorganization and distress seen in many children reared in Romanian and Russian orphanages and their great difficulty in forming meaningful relationships with caretakers. Early separation can lead to difficulties in forming new and trusting relationships as well as undermine emotional and cognitive development. This is not to say, however, that new attachments cannot be formed. They can, but often the formation of these new attachments takes a long time and occurs only with difficulty in circumstances in which skilled caretakers are willing to devote considerable effort to deal with children who are initially unrewarding. The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) of the American Psychiatric Association (APA; 2000) describes Reactive Attachment Disorder of Infancy or Early Childhood as markedly disturbed and developmentally inappropriate social relatedness in most contexts, beginning before age 5, as evidenced by persistent failure to initiate or to respond in a developmentally appropriate fashion to most social interactions. This is seen in children’s excessively inhibited, hypervigilant, or highly ambivalent and contradictory responses. The child, who is neither developmentally delayed nor suffering from a pervasive developmental disorder, may respond to caregivers with a mixture of approach, avoidance, or resistance to comforting or may exhibit frozen watchfulness. The child may form diffuse attachments marked by indiscriminate sociability with marked inability to exhibit selectivity in choice of attachment figures (e.g., excessive familiarity with relative strangers). To be diagnosed with this disorder, the child must have been exposed to pathogenic care before developing symptoms, as evidenced by at least one of the following:
Persistent disregard of the child’s basic emotional needs for comfort, stimulation, and affection Persistent disregard of the child’s basic physical needs Persistent changes of primary caregivers that prevent formation of stable attachments (e.g., frequent changes in foster care)
Reactive Attachment Disorder is divided into two types, inhibited or disinhibited, depending on whether the clinical picture is dominated by withdrawal from other people or inappropriate engagement with them (APA, 1994). Sir Michael Rutter (1997) explores the psychopathology that can develop from disruptions of attachment. According to Rutter, these disorders are
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explained by attachment theory. He believes that the DSM-IV oversimplifies and gives some erroneous information about attachment disorders. He underlines the importance of exploring the nature of the child’s attachments as opposed to simply asking whether the child suffers from an attachment disorder as defined by the DSM-IV. Difficult problematic attachments, worthy of careful scrutiny in making decisions about custody and visitation, are not necessarily associated with the child being diagnosable with a Reactive Attachment Disorder. Nor are manifestations of disturbed attachment seen in children of divorce necessarily the consequence of poor parenting by one of the parents alone. Although children in divorce cases may exhibit any pattern of attachment, it is often disruption of attachment in divorce that devastates a child rather than difficulties with one parent or the other. When considering whether a child has been the subject of pathogenic care, custody evaluators should carefully explore whether the child’s emotional needs have been persistently disregarded. Rutter (1997) observes further that in difficult divorce cases, the divorce per se is far less traumatic for the child than the extremely dysfunctional relationship that develops between the parents following the separation. In these pathological relationships, the parents often superficially define their focus as the best interest of their child although they are actually primarily concerned to continue the pathological struggle between themselves. In the process, though not intending to harm the youngster, they disregard the child’s basic emotional needs. It is not surprising that in these situations children’s behavioral problems, depression, anxiety symptoms, and school performance may worsen and their social relationships deteriorate. Disturbed attachment is associated with other forms of serious pathology as well as Reactive Attachment Disorder. Benoit, Zeanah, and Barton (1989) describe attachment relationships in mothers of 25 children who were diagnosed with failure to thrive (a serious condition in which otherwise healthy infants fail to gain weight) and compared the attachment of 25 hospitalized mothers with normally growing infants. Their study matched the subjects’ race, socioeconomic status, maternal education, and the infants’ age and sex. They reported that 96% of the mothers with infants who were suffering from failure to thrive were classified as insecure with respect to attachment, as assessed by the Adult Attachment Interview. Though early attachment loss and disturbance may not produce immediate symptoms, pathology may express itself during later developmental periods. The disruption in attachment is particularly likely to resurface in adolescence, when it can present as deficits in morality, empathy, caring, and commitment. Fonagy and his coworkers (1995) describe how impaired morality, disruptive behavior, and Borderline Personality Disorder can emerge as sequelae of disturbed early attachment. Ordinarily, as individuals mature the functions
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performed for them by early attachment figures become part of their own capacities. Having learned from caretakers how to evaluate their own behavior, regulate impulses to action, and soothe themselves in distress, healthy individuals can largely perform these functions for themselves as adults. Failure of early attachment experiences interferes with learning these capacities and puts the individual at risk of developing psychopathology rooted in the relative absence of these abilities. Individuals who have not learned to calm and soothe themselves in early attachment relationships are at increased risk of turning to maladaptive means of self-soothing, such as drug or alcohol abuse or promiscuous sexual activity. THE EFFECTS OF DIVORCE ON ATTACHMENT ACROSS DEVELOPMENT Bowlby (1973) believed that the goal of attachment was to maintain the caregiver’s accessibility and responsiveness, which he termed ‘‘availability’’ and which focused on physical proximity of the caregiver to the child. The work of Everet and Waters in the 1970s helped to redefine the goal of attachment as ‘‘felt security,’’ with a focus on the child’s internal perception of the mother’s availability. Redefined in this way, the concept of attachment took on meaning at subsequent stages of development, up to and including adulthood (Cicchetti et al., 1990). This helped to spark research that evaluated the continuity of attachment style over time and the impact of different stressors on attachment security. Divorce as a threat to attachment security has received a fair amount of attention, and its effects have been evaluated in all age groups. In very young children (0 to 3 years) there is a limited amount of research available to assess functioning following separation of parents. In one study by Solomon and George (1999), infants and toddlers who had overnight visits with the noncustodial parent were more likely to demonstrate disorganized attachment; thus overnight visits at this age appear to be a developmental risk. In other respects, children of separated parents appear to function more poorly in terms of cognitive development, social development, and attachment security. However, these differences disappeared when the mother’s personal attributes were taken into consideration (e.g., education, income, ethnicity, child-rearing beliefs). Thus differences in attachment for this age group are more closely related to characteristics of the mother, often functioning as a single parent, than to whether the family is intact (Clarke-Stewart, Vandell, McCartney, Owen, & Booth, 2000). There is considerably more research looking at the effects of divorce on preschool-age children. Much of the early work showed that preschool-age children from divorced families were more likely to be insecurely attached,
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have more difficulty in social relations (Hetherington, Cox, & Cox, 1979), have more behavior problems and difficulty adjusting to preschool (Hodges, Buchsbaum, & Tierney, 1983), and have lower levels of self-confidence (Peretti & di Vitorrio, 1993). More recent work with this age group has also found that children of divorce are less secure in their attachments, but this appears to be a function of parenting style following divorce (Nair & Murray, 2005). Single parents are less likely to use a positive (authoritative) parenting style and thus are less likely to develop a healthy relationship with the child. Psychoanalyst Peter Blos (1967) described adolescence as the second separation-individuation process, a period when youngsters normally decrease their engagement with primary caregivers and invest more fully in relationships outside the family. He suggested that much of the tension between adolescents and their parents reflects both parents’ and children’s attempts to renegotiate this shifting investment. Though not normally so distressed a period as described in the older development literature (Offer & Sabshin, 1984), adolescence often includes increased affective turmoil and emotional lability. Consistent responsive parenting, even as children are attempting to create distance, remains important to normal development. Without this appropriate parenting, adolescent children often have difficulties, including depression, anxiety symptoms, substance abuse, and other behavioral problems that can develop into an adolescent-onset Conduct Disorder and continue into later life. During divorce, when parental capacities and empathy are commonly at their nadir, the adolescent’s attempts to establish a more mature relationship with parents may go against the psychological needs of parents who turn to their children for support and solace. In evaluating custody when this occurs, questions should be raised regarding whether problematic situations reflect transient situations that are part of the first phase of divorce (see Wallerstein & Corbin, 1999) or whether they represent chronic problems in the parent’s capacity to support the adolescent’s growing independence. Disruptions of attachment in adolescence may be quite problematic. Precisely because the youngster and society in general are less willing to avow the importance of attachments to caregivers during this period, vitally important relationships with parents are less likely to be protected. In addition, youngsters vulnerable to disturbed attachments because of early problems in this area may experience considerable difficulty from threats to attachment in adolescence. It is not rare, for example, for an older adolescent or young adult child to be thrown into considerable distress by parental divorce even though that child appeared to have moved far along the road to psychological independence from the parents. Research that has evaluated adolescent functioning following divorce has shown that adolescents from divorced families exhibit greater levels of
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conflict with their parents (Ruschena Prior, Sanson, & Smart, 2005) and less secure attachments. Despite this, adolescents were not found to significantly differ from their peers in terms of academic, emotional, or social functioning. Attachment security continues to exert a role as adolescents pass into adulthood. In adulthood, as individuals negotiate the development of committed relationships and begin to have families of their own, gaps in their emotional and psychological development may become more apparent. An insecure attachment style has been shown to interfere with the formation of intimate relationships (as discussed earlier) and has also been shown to increase the likelihood that spouses will stay in a dysfunctional relationship and display low levels of happiness and high levels of depression (Davila & Bradbury, 2001). These later effects of early attachment result because the early experiences become the basis for the person’s conceptualization of what to expect in relations with other people throughout life. ‘‘Working models’’ or ‘‘states of mind’’ regarding what the self and others are like, whether relationships are likely to be secure or insecure, and the emotional tone of relationships shape psychological experience, often without the individual’s conscious awareness (Bowlby, 1973; Bretherton, 1990; Main, 1991). These models, for better or worse, profoundly shape the individual’s perception of self and others across a lifetime. Because they shape how parents deal with their children, attachment patterns pass from one generation to another by shaping the caregiverinfant relationship (Sroufe & Fleeson, 1986). THE ASSESSMENT OF ATTACHMENT Having shown that attachment played a central role in psychological development, researchers turned to the question of how it was to be measured. Led by Mary Ainsworth, researchers worked to find systematic means to measure attachment in infancy. Ainsworth pioneered the study of the Strange Situation, a simple scripted procedure that explores young children’s (0 to 18 months) responses to brief separation. In the Strange Situation, mother and baby are introduced to a pleasant, toy-filled room and then left alone there for 3 minutes while the child explores the room. A stranger enters the room, speaks to the mother, and tries to engage the child in play. The mother then leaves baby alone with the stranger, returning after 3 minutes, and the stranger leaves. After another 3 minutes the mother again leaves and the stranger returns. Finally, the mother returns. Based on their observations, clinicians are able to reliably classify infants’ attachment style and to describe in a standardized way infant attachment responses. Researchers have found three patterns of response to this situation: secure, insecure-avoidant,
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and insecure ambivalent/preoccupied. The securely attached baby is distressed by the mother’s absence but rapidly recovers and reengages his or her interest in the world after the mother’s return, which is greeted with pleasure. The insecure-avoidant youngster is less manifestly distressed by the mother’s departure. Her return evokes little or a slightly negative response from the baby. The insecure-ambivalent/preoccupied baby appears worried about the mother even when she is present, is greatly distressed by her departure, and continues to be distressed on her return, often appearing angry with the mother. As attachment theory evolved into a conceptual framework that encompassed problems in the formation of relationships across development, new measures were created to assess and describe these behaviors in children, adolescents, and adults. In developing these new measurements, two problems arose: (1) defining the salient characteristics of attachment behavior at different ages, and (2) determining how to best measure attachment behavior with cohorts that were capable of verbal communication (i.e., the validity and reliability of self-report, observational, and projective measures). Although these questions are yet to be definitively answered, a decade of exploration has produced instruments that are now routinely used in the research setting to measure attachment from infancy to adulthood. Instruments most often used with preschool and early school-age children resemble the Strange Situation test in that they rely on a separation-reunion paradigm to capture attachment behaviors. Examples of instruments are the Attachment Q-Sort (Waters & Deane, 1985) and the Preschool Attachment Classification System (Marvin, Cassidy, et al., 1999). The instruments and classification system used with this age group differ from that used in infancy in several ways. These measures focus on patterns of behavior that reflect the overall quality of the attachment between the child and the caregiver rather than discrete behaviors generated in the infant Strange Situation test. Thus observers take into consideration the physical proximity, affective experience of the child, and verbal exchanges between the parent and the child during a series of interactions. Specific domains that are evaluated include communication between parent and child, the assumption of roles during interactions, and the coordination of activity during a given task. The classification system is similar to that used in infants and uses four attachment styles: insecure-avoidant, secure, insecure-dependent, and disorganized. However, the behavior exhibited by a child can differ markedly from these styles, especially the disorganized style. Children of this age group with a disorganized style will often attempt to control the caregiver and engage in role reversal during collaborative tasks. Although the validity and reliability of these instruments have been well established in the research setting, they are not commonly used in a clinical setting.
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Assessment of attachment with adolescents and adults has taken a hybrid approach, using measures that involve interviews, projective testing, and self-report. The instrument most commonly used with adults is the Adult Attachment Interview (Kobak, Cole, Ferenz-Gillies, Fleming, & Gamble, 1993; Main, 1991), which has been adapted for adolescents (the Attachment Interview for Children and Adolescents; Ammaniti, Tambelli, Zavattini, Vismara, & Volpi, 1999). These instruments rely on an interview format that explores attachment by systematically examining the subject’s description of relationships to important figures, focusing on the ability of the interviewee to tell a coherent story about these early relationships. Some of the instruments used with adults and adolescents are similar to those used with younger children and rely on a separation-reunion paradigm. With the Secure Base Scoring Scale (Cromwell et al., 2002) the subject and a significant other are asked to engage in a problem-solving task. The interaction is taped and then scored on the basis of each participant’s ability to verbalize his or her need for help or support and ability to be sensitive to similar requests from the other participant. Though not widely used in either research or clinical practice, it provides an opportunity to assess interpersonal functioning among peers and with intimate partners. More recently there has been a movement to develop projective tests. An example of this is the Adolescent Separation Anxiety Test (Brown & Wright, 2003), which uses a series of pictures depicting an adolescent and a parent who is preparing to leave. Adolescents are asked to describe what the parent in the picture is thinking, what the parent might be thinking about how the adolescent is feeling, and what happened before and after the depicted scene. Most custody evaluators will assess attachment through a diagnostic interview of each parent, as well as interviewing the child or adolescent alone and with each parent. A thorough review of all available collateral information is recommended. Although there are a variety of interview schedules, at present they seem more relevant to research than to the courts. The extent to which these scales measure attachment is still somewhat in doubt, and few have been standardized. At present clinical assessment gives more reliable information regarding attachment than any available test. As attachment research grows, tests currently under development (Main, 1995) are likely to become more useful for assessing attachment. Some of the tests used specifically for custody evaluations incorporate aspects of attachment theory. CONCLUSION Thompson (1996) describes guidelines for judicial decisions involving testimony on attachment, including (a) focusing on the psychological (as distinct from the biological) parent, (b) recognizing multiple attachments,
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(c) recognizing primary and secondary attachments, and (d) focusing on the child’s need to maintain ties to the noncustodial caregiver. For attachment theory to be helpful in a legal context, it must be used in conjunction with the complementary concept of bonding. As identified by Thompson (1996), attachment theory has direct clinical application in custody evaluations in conjunction with other pertinent issues, including the child’s needs and the parent’s ability to meet those needs. Although living in a dysfunctional family can be traumatic to a child, research shows that divorce can be equally traumatic. Attachment theory supports the notion that the loss of one of the child’s primary attachment figures adds to the child’s trauma. Pagani-Kurtz and Deverensky (1997) report that increased visitation minimizes the effects of divorce on school-age children, and problems with self-esteem, social functioning, and coping improved with additional contact with the noncustodial parent. When looking at the effects of divorce on a child it can be difficult to determine cause and effect. Children who are the subject of custody disputes may have preexisting dysfunction due to disruption in a prior attachment, mental or behavioral issues, or family dysfunction. Do these disturbances result in disturbed attachments, or do problems with attachment result in these disturbances? No simple cause-and-effect model explains the multifaceted psychological impact of divorce on children, and rarely is only one factor at play. Nonetheless, problematic attachment is so detrimental to psychological well-being that attachment issues should be carefully addressed in any custody evaluation and attachment should be given a high priority in custody decisions. A careful and thoughtful review of collateral information, individual interviews, and interactional interviews can usually provide a reasonably clear picture of the child’s attachment. Assessing a child’s attachments is often difficult. As discussed earlier, measurement of attachment has not achieved full precision. Evaluations are complicated because a child is likely to have more than one attachment figure. This can be a double-edged sword. The child will be able to remain with one attachment figure but may lose another significant attachment figure. The concept of primary attachment figures continues to be useful in infant and toddler evaluations. Most very young children have a single person to whom they are substantially more securely attached than to any other, and maintaining this attachment is of primary psychological importance. After very early childhood, however, the psychological significance of other attachments increases so that the relative significance of figures to whom the youngster is attached becomes increasingly less clear. Studies of attachment theory in children lead one to focus on the problems of loss and mourning. When visits with the noncustodial parent are sufficiently infrequent, from a psychological point of view parent loss in divorce is
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in many ways equivalent to parent loss through death. Thus our knowledge of mourning and loss is helpful in understanding some young children’s response to divorce. When children in the midst of divorce manifest symptoms, evaluators should first consider that these symptoms may result from the psychological impact of the divorce rather than immediately treating them as manifestations of a primary psychiatric disorder or mismanagement of the child by the custodial parent. Often these symptoms are usefully addressed in terms of disturbances in attachments that result from the divorce, and interventions based on the appreciation of this underlying problem may involve making custody and visitation arrangements that minimize the disruption of attachment or assisting the child in dealing with the distress that results from such disruptions. Attachment theory is a valuable tool in custody evaluations in assessing what is in the best interest of the child. However, the assessment of attachment is only part of a custody evaluation. Outside of risk of harm, attachment is the single most important factor in many custody decisions, though other factors also play an important role. The parent to whom the child is more securely attached may have significant deficiencies in parenting skills, which should outweigh attachment in deciding custody. Children are not always wise in selecting figures to whom to become attached. They may, in fact, become intensely attached to overtly abusive and otherwise harmful parents. When Goldstein, Solnit, and Freud first introduced the concept of attachment by way of the ‘‘primary psychological parent’’ their correct emphasis on the importance of maintaining that relationship led them to minimize the importance of other aspects of the child’s life, including other attachments. The maintenance of a firm relationship with a primary psychological parent does not preclude other attachment relationships. Instead of attempting to eliminate all possibility of other attachments, custody and visitation arrangements should ensure the maintenance of the primary attachment and attempt to address the child’s other needs at the same time. In considering statements about attachment and bonding it is essential to keep in mind that there are many definitions of attachment theory and bonding and to clarify how the terms are being used in a given context. Given the varying use of these terms, custody evaluators should indicate how these terms are being used, and triers of fact should insist on their clarification in reports and testimony. The importance of providing the child with an opportunity for a stable, secure relationship is hard to overestimate. Yet how to assess attachment, place it within the framework of an overall custody recommendation, and shape arrangements that best meet children’s needs requires substantial additional investigation.
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van IJzendoorn, M. (1995). Adult attachment representations, parental responsiveness, and infant attachment: A meta-analysis on the predictive validity of the Adult Attachment Interview. Psychological Bulletin, 117, 387–403. Vaughn, B., Lefever, B., Seifer, R., & Barglow, P. (1989). Attachment behavior, attachment security, and temperament during infancy. Child Development, 60, 728–773. Vaughn, B., & Waters, B. (1990). Attachment behavior in home and in the laboratory: Q-sort observations and Strange Situations classifications of one-year-olds. Child Development, 61, 1965–1973. Wallerstein, J. S., Corbin, S. B., Galatzer-Levy, R. M. (Ed.); Kraus, Louis (Ed.). (1999). The child and the vicissitudes of divorce. The scientific basis of child custody decisions (pp. 73–95). Hoboken, NJ: Wiley. Waters, E., & Deane, K. (1985). Defining and assessing individual differences in attachment relations: Q methodology and the organization of behavior in infancy and childhood. In I. Bretherton & E. Waters (Eds.), Growing point in attachment theory research (pp. 41–65). Chicago: University of Chicago Press.
CHAPTER 7
Improving the Quality of ParentChild Contact in Separating Families with Infants and Young Children: Empirical Research Foundations MICHAEL E. LAMB and JOAN B. KELLY
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OCIAL SCIENTISTS IN general, and psychologists in particular, largely agree that parent-child relationships play a crucial role in shaping children’s development and adjustment. As a result, considerable efforts have been made to examine the developmental course of these relationships, the features ensuring that some relationships have more positive effects on children’s development than others, and the effects of parent-child separations and relationship disruptions on children’s subsequent adjustment. In this chapter, we briefly summarize the relevant empirical literature, citing the secondary rather than primary literature for the most part to minimize the length and density of the text. We first discuss the development of infant- and child-parent relationships and the factors that affect the strength and quality of these relationships. We then turn to research concerned with the effects of divorce on children, with special focus on the ways harmful effects can often be minimized by promoting the maintenance of children’s relationships with both of their divorcing parents. We have discussed many of these issues in some detail elsewhere (e.g., Kelly, 2005, 2007; Kelly & Emery, 2003; Kelly & Lamb, 2000, 2003; Lamb, 2002a, 2002b, in press; Lamb & Lewis, 2005; Trinder & Lamb, 2005), but this chapter provides our most up-to-date statement. Our goal is to provide those professionals conducting custody evaluations or assessments with an underlying empirical foundation for understanding and weighing the many complex issues seen in separating families, including those in which parents are disputing custody and access arrangements.
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Knowledge of the social science literature also provides evaluators and other professionals with a sound basis for formulating and defending recommendations regarding children’s living arrangements to the court if such recommendations are expected or requested (Kelly & Johnston, 2005). THE DEVELOPMENT OF PARENT-CHILD RELATIONSHIPS Kelly and Lamb (2000), among others, have documented how an understanding of normative developmental phases informs both our understanding of the ways parental separation and divorce may affect children’s development and adjustment as well as the design of postdivorce living arrangements most likely to benefit children. As described by Bowlby (1969), and largely confirmed by subsequent research (for detailed review, see Thompson, 2006), Kelly and Lamb recounted how infant-parent attachments pass through four broad developmental phases, during the first three of which infants learn to discriminate among adult caregivers and gradually develop emotional attachments to them. In the first 2 months (phase 1), infants indiscriminately accept care from any caregiver and use a repertoire of innate signals, including crying and smiling, to bring and keep potential caregivers close to them. The relief of distress from hunger or pain and the growing interest in and response to social signals from adults are the building blocks for more discriminating attachment processes, but regular interaction is needed to continue the process of attachment formation because infants at this age have very primitive memories and cognitive abilities. In the period extending from 2 to 7 months of age (phase 2), infants increasingly begin to recognize their parents and other caregivers and to prefer interaction with them. They also begin to anticipate caregivers’ responses to their signals, although they do not yet understand that people (including caregivers) continue to exist when they are not present. Infants of this age initiate and enjoy social interactions and start to show signs of ‘‘attachment in the making.’’ They do not yet typically protest separations from their parents, but require frequent contact with their parents for attachment formation to continue. Importantly, research has shown that fathers are as competent to care for their infants and toddlers as mothers, given comparable opportunities and experiences (Lamb, 1997, 2002a; Parke, 1996). In the third phase of attachment development (between 7 and 24 months), attachments become increasingly apparent, as infants preferentially seek to be near and to interact with specific caregivers, by whom they are more easily soothed than by strangers. Contrary to Bowlby’s initial speculation and widespread common sense, there is considerable evidence that most infants in two-parent families do not become attached to their mother first
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but rather form attachments to both parents at about the same age, around 6 to 7 months (see Lamb, 2002a, for a review), even though fathers typically spend less time with their infants than mothers do (Pleck & Masciadrelli, 2004). This indicates that, although a threshold level of interaction is crucial for attachments to form, time spent interacting is not the only critical dimension. Infants begin to protest when separated from their primary attachment figures around 6 to 7 months of age, react warily to strangers, and, in a rudimentary way, start recognizing that parents continue to exist even when they are not present. Over the ensuing months, infants and toddlers become able to tolerate longer separations from their parents or attachment figures, although such separations may remain stressful. Most infants come to prefer the parents who take primary responsibility for their care (typically their mother), but this does not mean that relationships with their less involved parents are unimportant. In fact, many toddlers and preschoolers seem to prefer their traditional father, especially when they are not stressed or tired (Lamb, 2002a). The amount of time that infants spend with their two parents does not appear to determine whether the attachment relationships with either are insecure or secure. However, the relative prominence of the two parents in caring for and interacting with their children does appear to affect the relative importance of the two relationships with respect to their impact on later development. Specifically, the relationship with the more involved parent tends to have a greater impact than the relationship with the less involved parent, albeit not clearly in direct proportion to the relative levels of involvement. Nonetheless, both relationships remain psychologically important even when there are disparities in the two parents’ levels of participation in child care. According to attachment theorists, infants form attachments to those who have been available regularly and have responded to the infants’ signals and needs (Lamb, Thompson, Gardner, & Charnov, 1985; Thompson, 2006). All caregivers are not equivalently sensitive, of course, and individual differences in responsiveness affect the quality and security of the attachment relationships that form. The quality of both maternal and paternal behavior is reliably associated with the security of infant-parent attachment (DeWolff & van IJzendoorn, 1997; van IJzendoorn & DeWolff, 1997). Interestingly, the association between the quality of paternal behavior and the quality of infantfather attachment appears to be weaker than the parallel association between maternal behavior and the security of infant-mother attachment. However, the quality of both mother- and father-child interaction remains the most reliable predictor of individual differences in psychological, social, and cognitive adjustment in infancy, as well as in later childhood (Lamb & Lewis, 2005; Thompson, 2006).
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According to Yarrow (1963; Yarrow & Goodwin, 1973), separation responses of infants become increasingly intense as attachments to parents and other important caregivers strengthen between 6 and 24 months. As mentioned earlier, most infants initially prefer the parent who provides most of their care and are more likely to seek out their preferred parent for comfort when distressed (see Lamb, 2002a, for a review). Nonpreferred parents remain emotionally important, however, and are sought out for other social and emotional needs and, when primary caregivers are not available, for comfort. Preference for primary caregivers diminishes with age and often disappears by 18 months (Lamb, 2002a). Although infants and toddlers may resist transitions between parents in the second year, just as they sometimes protest (even more strongly) daily transitions to out-of-home care providers, they generally comfort quite quickly once the transition is accomplished. This is particularly likely when both parents have the opportunity to engage in normal parenting activities (feeding, playing, soothing, putting to bed, etc.) while attachments are being established and consolidated. Infants and toddlers need regular interaction with their attachment figures in order to foster, maintain, and strengthen their relationships (Lamb, Bornstein, & Teti, 2002; Thompson, 2006). This means that young children need to interact with both parents in a variety of contexts (feeding, playing, diapering, soothing, reading, putting to bed, etc.) to ensure that the relationships are consolidated and strengthened. In the absence of such opportunities for regular interaction across a broad range of contexts, infant-parent relationships may weaken rather than grow stronger. When toddlers are separated for as little as a few days from all of their attachment figures (e.g., both parents) simultaneously, intense distress and disturbances that persist for 6 months after reunion have been reported (Bowlby, 1973; Heinicke, 1956; Heinicke & Westheimer, 1966; Robertson & Robertson, 1971). Reactions are muted, but not eliminated, when children are cared for by other attachment figures or sensitive substitute caregivers during the separation (Robertson & Robertson, 1971). Extended separations from parents with whom children have formed meaningful attachments are thus undesirable because they unduly stress developing attachment relationships (Bowlby, 1973). The loss or attenuation of important attachment relationships may cause depression and anxiety, particularly in the first 2 years, when children lack the cognitive and communication skills that would enable them to cope with loss. The absence of regular contact slowly erodes relationships such that, over time, parents who do not interact regularly with their infants effectively become strangers. In the final phase of attachment formation, which begins around age 2, toddlers better understand why parents come and go and can enter with their parents into some joint planning around daily activities (Greenberg, Cicchetti,
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& Cummings, 1990; Thompson, 2006). The increased cognitive and language abilities of 2- to 3-year-olds enable them to tolerate somewhat longer separations from their parents without undue stress. However, their very primitive sense of time prevents them from conceptualizing much beyond today and tomorrow, inhibiting their ability to understand and cope with lengthy separations of several weeks or months. Relationships with parents continue to play a crucial role in shaping children’s social, emotional, personal, and cognitive development into middle childhood and adolescence (Lamb & Lewis, 2005). Indeed, the quality of both mother- and father-child relationships remains the most reliable correlate of individual differences in psychological, social, and cognitive adjustment in infancy, as well as in later childhood (Lamb & Lewis, 2005; Thompson, 2006). Not surprisingly, therefore, children in both two- and single-parent families appear better adjusted when they enjoy warm positive relationships with two actively involved parents (Amato & Gilbreth, 1999; Hetherington, 1999; Lamb, 1999, 2002b; Thompson & Laible, 1999). Children are better off with insecure attachments than without attachment relationships, however, because these enduring ties play essential formative roles in later social and emotional functioning. There is also a substantial literature documenting the adverse effects of disrupted parent-child relationships on children’s development and adjustment, with a linear relationship between age of separation and later attachment quality in adolescents. The weakest attachments to parents are reported by those whose parents separated in the first 5 years of their lives (Woodward, Ferguson, & Belsky, 2000). Similarly, in a retrospective study of adolescents whose parents had divorced, Schwartz and Finley (2005) found that age at time of divorce was associated with ratings of both paternal involvement and nurturance, indicating that the earlier the separation, the greater the impact on the quality of the children’s relationship with their father. THE EFFECTS OF PARENTAL SEPARATION OR DIVORCE Researchers have clearly demonstrated that, on average, children benefit from being raised in two biological or adoptive parent families rather than separated, divorced, or never-married single-parent households (Amato, 2000; Aquilino, 1996; Carlson, 2006; Clarke-Stewart & Brentano, 2006; Clarke-Stewart, Vandell, McCartney, Owen, & Booth, 2000; Hetherington, 1999; Hetherington & Kelly, 2002; McLanahan, 1999; McLanahan & Sandefur, 1994; McLanahan & Teitler, 1999; Simons, Johnson, Lorenz, & Simons, 1996; Simons, Lin, Gordon, Conger, & Lorenz, 1999), although there is considerable variability within groups, and the differences between groups are relatively small. Indeed, although children growing up in fatherless families are, on average,
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disadvantaged relative to peers growing up in two-parent families with respect to psychosocial adjustment, behavior and achievement at school, educational attainment, employment trajectories, income generation, involvement in antisocial and even criminal behavior, and the ability to establish and maintain intimate relationships, the majority of children with divorced parents enjoy average or better than average social and emotional adjustment as young adults (Booth & Amato, 2001; Clarke-Stewart & Brentano, 2006; Hetherington & Kelly, 2002; Kelly & Emery, 2003). Approximately 20% to 25% of children in postseparation and divorced families give evidence of adjustment problems, compared to 12% in married families. Thus the majority of children from separated families evince no psychopathology or behavioral symptoms, although they are likely to experience psychic pain for at least some period of time (Emery, 1998; Hetherington & Kelly, 2002; Laumann-Billings & Emery, 2000). Such individual differences in outcomes force us to identify more precisely both the ways divorce and single parenthood may affect children’s lives and the factors that might account for individual differences in children’s adjustment following their parents’ separation. Five interrelated factors appear to be especially significant. ECONOMIC STRESSES Typically single parenthood is associated with a variety of social and financial stresses with which custodial parents must cope, largely on their own. Singleparent families are more economically stressed than two-parent families, and economic stresses or poverty appear to account (statistically speaking) for many effects of single parenthood (Hetherington & Kelly, 2002; McLanahan, 1999). REDUCTIONS
IN
TIME
WITH
CHILDREN
Because single mothers need to work more extensively outside the home than married or partnered mothers do, single parents spend less time with children and the levels of supervision and guidance are lower and less reliable than in two-parent families (Hetherington & Kelly, 2002; McLanahan, 1999). Reductions in the level and quality of parental stimulation and attention may affect achievement, compliance, and social skills, and diminished supervision makes antisocial behavior and misbehavior more likely (Hetherington & Kelly, 2002). CONFLICT
BETWEEN
PARENTS
Conflict between the parents commonly precedes, emerges, or increases during the separation and divorce processes and often continues for some
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time beyond them. Interparental conflict is an important correlate of children’s psychosocial adjustment, just as marital harmony, its conceptual inverse, appears to be a reliable correlate of positive adjustment (Cummings, Goeke-Morey, & Raymond, 2004; Johnston, 1994; Kelly, 2000). The negative impacts of high levels of marital conflict on the quality of parenting of both mothers and fathers have been well documented. In general, parental conflict is associated with more rejecting, less warm and nurturing parenting by mothers, and with fathers’ withdrawal from parenting and engagement in more intrusive interactions with their children (Cummings & Davies, 1994; Grych, 2005). Anger-based marital conflict is associated with filial aggression and externalizing behavior problems, perhaps because such parents and children have similar difficulty regulating negative affect (Katz & Gottman, 1993). These and other data support the observation that some of the effects of divorce are better viewed as the effects of preseparation marital conflict and violence (Kelly, 2000). The adversarial legal system tends to promote conflict between already vulnerable parents because of its win-lose orientation and the way it fosters hostile behaviors and demands. Although the adversarial process purports to focus on children’s ‘‘best interests,’’ parents’ psychologically driven legal strategies more often represent their own needs and perceived entitlements, and the effect is to diminish the possibility of future civility, productive communication, and cooperation (Kelly, 2003). QUALITY
AND
TYPE
OF
PARENTING
The quality and type of parenting have emerged as important influences on the postseparation and postdivorce adjustment of school-age children and adolescents. Deterioration in the quality of parenting after separation has long been recognized (Belsky, Youngblade, Rovine, & Volling, 1991; Clarke-Stewart & Brentano, 2006; Hetherington, 1999; Sturge-Apple, Davies, & Cummings, 2006; Wallerstein & Kelly, 1980). Many parents are preoccupied, stressed, emotionally labile, angry, and depressed following separation, and their diminished parenting includes less positive involvement with and affection expressed toward their children and more coercive and harsh forms of discipline. Additional internal factors affecting quality of parenting include parents’ psychological adjustment, violence, and high conflict. External factors such as absorption in dating, new partners, cohabitation, remarriage, and poverty and financial instability are also associated with reductions in the quality of parenting (Amato, 2000; Hetherington, 1999; Kelly, 2000; Pruett, Williams, Insabella, & Little, 2003; Simons et al., 1999; Wallerstein & Kelly, 1980). Researchers have identified specific aspects of parenting that can moderate the impact of separation and divorce on children’s social, emotional, and
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academic adjustment and potentially protect children against the harmful impacts of high conflict. Effective parenting by separated mothers is characterized by warmth, authoritative discipline (setting limits, noncoercive discipline and control, enforcement of rules, appropriate expectations), academic skill encouragement, and monitoring of the children’s activities (Amato & Fowler, 2002; Buchanan, Maccoby, & Dornbusch, 1996; Hetherington, 1999; Martinez & Forgatch, 2002; Simons et al., 1999). As described in more detail later in the chapter, the effective parenting of fathers that is linked to more positive adjustment following divorce is also associated with effective paternal behaviors, including active involvement such as help with homework and projects, emotional support and warmth, talking about problems, and involvement in school (Amato & Fowler, 2002; Amato & Gilbreth, 1999; Hetherington, 1999; Finley & Schwartz, in press). DISRUPTIONS
IN
RELATIONSHIPS
WITH
FATHERS
Divorce commonly disrupts one of the child’s most important and enduring relationships, that with his or her father. As Amato (1993; Amato & Gilbreth, 1999) has shown with particular clarity, however, the bivariate associations between father absence and children’s adjustment are much weaker than one might expect. Indeed, Amato and Gilbreth’s meta-analysis revealed no significant association between the frequency of father-child contact and child outcomes, largely because of the great diversity in the types of fatherpresent relationships. We might predict that contacts with abusive, incompetent, or disinterested fathers are likely to have very different effects than relationships with devoted, committed, and sensitive fathers. As expected, Amato and Gilbreth found that children’s well-being was significantly enhanced when their relationship with their nonresident father was positive, when the nonresident father engaged in active parenting, and when contact was frequent. Clarke-Stewart and Hayward (1996); Dunn, Cheng, O’Connor, and Bridges (2004); Hetherington, Bridges, and Insabella (1998); and Simons and associates (1996) likewise reported that children benefited when their nonresident father was actively involved in routine, everyday activities. The same conclusion was clearly supported in recent analyses by Carlson (2006) of data from the National Longitudinal Study of Youth. Carlson showed that father involvement was associated with better adolescent adjustment and that paternal involvement partially mediated the effects of family structure (notably divorce or single parenthood) on adolescents’ behavioral outcomes. Similarly, higher levels of paternal involvement in their children’s school was associated with better grades, better adjustment, fewer suspensions, and lower dropout rates than were lower levels of involvement (Nord, Brimhall, & West, 1997). Active engagement in
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a variety of specific activities and ongoing school-related discussions between fathers and their adolescents significantly lowered the probability of school failure when compared to adolescents with less actively engaged fathers. Another meta-analysis indicated that, on multiple measures of emotional and behavioral adjustment and academic achievement as rated by mothers, fathers, teachers, and clinicians, children in joint physical custody were better adjusted than children in sole custody arrangements. In fact, children in shared custody were as well adjusted as children whose parents remained married (Bauserman, 2002). Although joint physical custody parents reported less past and current conflict than did sole physical custody parents, conflict did not explain the superiority of the children in joint custody arrangements. Again, the clear implication is that active paternal involvement, not simply the number or length of meetings between fathers and children, predicts child adjustment. This suggests that postdivorce arrangements should specifically seek to maximize positive and meaningful paternal involvement rather than simply allow minimal levels of visitation. As in nondivorced families, in other words, the quality of continued relationships with the parents—both parents—is crucial (Kelly & Lamb, 2000). Stated differently and succinctly, the better (richer, deeper, and more secure) the parent-child relationships, the better the children’s adjustment, whether or not the parents live together (Lamb, 2002a, 2002b). A recent longitudinal study of representative samples of adolescents living in low-income neighborhoods in Boston, San Antonio, and Chicago nicely illustrates the associations over time between nonresident paternal involvement and adolescent delinquency after statistically controlling for the effects of influences such as demographic factors and the quality of mother-child relationships (Coley & Medeiros, 2007). As expected, nonresident paternal involvement was associated with less delinquency overall; importantly, higher paternal involvement was associated with declines in delinquency over time, particularly among adolescents who were more involved with delinquent activities. In addition, as delinquency increased, paternal involvement increased too, suggesting that fathers were responding to changes in their children’s problem behavior. Similarly, in another longitudinal study of adolescents, Menning (2006) showed that adolescents whose nonresident father was more involved were less likely to start smoking. Given the demonstrated importance of fathers’ active participation and effective parenting, the influence of maternal attitudes on the extent of paternal involvement in the marriage and following separation and divorce is important (Cowdery & Knudson-Martin, 2005; Pleck, 1997). Mothers can be influential gatekeepers of paternal involvement through attitudes and behaviors that limit or facilitate fathers’ opportunities to parent and develop
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close relationships with their children. Mothers’ traditional attitudes toward women’s roles, identities linked primarily to caregiving, and perceptions that mothers are more competent than fathers at child care are associated with more active inhibitory gatekeeping, particularly following separation, and this is linked to lower levels of father involvement (Allen & Hawkins, 1999; Fagan & Barnett, 2003). Overall, then, a number of factors help account for individual differences in the effects of divorce, and because they are intercorrelated, it is difficult to assess their relative importance. The ability to maintain meaningful relationships with both parents does appear to be of central importance, however, both in its own right and as a correlate of some of the other factors. As shown later, thoughtful interventions can take advantage of these intercorrelations, initiating processes that minimize the adverse effects on children’s adjustment by striving to promote healthy relationships between children and both of their parents, whether or not they live together. MINIMIZING THE ADVERSE EFFECTS OF DIVORCE Even though children’s best interests are usually served by keeping both parents actively involved in their children’s lives, many custody and access arrangements may not foster the maintenance of relationships between children and their nonresident parents. The use of traditional visiting guidelines in many jurisdictions that prescribe every other weekend to the nonresident parent (with perhaps a brief midweek visit) and the reliance of mental health professionals on unsubstantiated beliefs that every other weekend is the best parenting plan for children have caused great dissatisfaction and a sense of loss among the majority of children in postdivorce arrangements. Research on children’s and young adults’ views of their postdivorce living arrangements indicates that the majority express strong wishes and longing for more time with their father, a desire for more closeness, and favorable views of shared physical custody as their preferred schedule (Fabricius & Hall, 2000; Laumann-Billings & Emery, 2000; Smith & Gallop, 2001). Arbitrary and one-size-fits-all time restrictions on the amount of time children spend with their father have been the norm regardless of the quality of the father-child relationship. It is no less important to maintain both child-parent attachments when the divorced parents had traditional roles before divorce than when they shared parenting responsibilities more equitably. Our focus should remain on the children’s best interests, not fairness to the parents. Writing on behalf of 18 experts on the effects of divorce and contrasting parenting plans, Lamb, Sternberg, and Thompson (1997, p. 400) observed more than a decade ago:
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To maintain high-quality relationships with their children, parents need to have sufficiently extensive and regular interactions with them, but the amount of time involved is usually less important than the quality of the interaction that it fosters. Time distribution arrangements that ensure the involvement of both parents in important aspects of their children’s everyday lives and routines . . . are likely to keep nonresidential parents playing psychologically important and central roles in the lives of their children.
For parents to have a positive impact on their children’s development, it is important that parents be integral parts of their children’s lives. This remains especially important as children get older and greater portions of their time are occupied outside the family by virtue of friendships, extracurricular activities, sports, and the like. At all ages it is important for parents to know teachers and friends, what’s happening at school or preschool, how relationships with peers are going, and what other activities are important or meaningful to the children and to be aware of the daily ups and downs in their children’s lives. It is hard to do this without regular and extensive firsthand involvement with their children in a variety of contexts. As Kelly and Lamb (2000; Lamb, 2002b; Lamb & Kelly, 2001) reiterated, the ideal situation is one in which children with separated parents have opportunities to interact with both parents frequently in a variety of functional contexts (feeding, play, discipline, basic care, limit setting, putting to bed, etc.). The evening and overnight periods (like extended days with nap times) with nonresidential parents are especially important psychologically for infants, toddlers, and young children. They provide opportunities for crucial social interactions and nurturing activities, including bathing, soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night, and the reassurance and security of snuggling in the morning that 1- to 3-hour visits cannot provide. According to attachment theory, as noted earlier, these everyday activities promote and maintain trust and confidence in the parents while deepening and strengthening child-parent attachments, and thus need to be encouraged when decisions about access and contact are made. One implication is that even young children should spend overnight periods with both parents when both have been involved in their care prior to separation, even though some analysts have long counseled against this (Kelly & Lamb, 2000; Lamb & Kelly, 2001). As Warshak (2000) has pointed out, the prohibition of overnight visitation has been justified by prejudices and beliefs rather than by any empirical evidence. When both parents have established significant attachments and both have been actively involved in the child’s care, overnight visits will consolidate attachments and child adjustment, not work against them. Consistent with this reasoning, the results
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of recent research by Pruett, Insabella, and Gustafson (2005) show that regular overnight visits were associated with better adjustment on the part of toddlers and young children. Parents who have been actively involved before divorce but are then denied overnight access to their children are thereby excluded from an important array of activities, and the strength or depth of their relationships suffer as a result. Solomon and Biringen (2001) challenged Kelly and Lamb’s (2000) conclusions regarding the beneficial effects of overnight visits for many young children, citing the results of a study by Solomon and George (1999a, 1999b). Contrary to their assertions, however, these researchers did not find that overnight visits with noncustodial fathers adversely affected the security of infant-mother attachment, or that overnights were more problematic for preschoolers than for infants and toddlers. In addition, many of the infants and toddlers they studied had never lived with their two parents and thus may not have formed an attachment to their father before the overnight visits commenced; their situation is much different from that of infants and toddlers who have established attachments to two involved parents prior to separation or divorce, which was the context explicitly addressed by Kelly and Lamb. Different steps are needed when promoting the formation rather than the maintenance of attachments, as Kelly and Lamb (2003) pointed out in a paper concerned with young children whose parents live too far apart for the children to have regular contact with both of them. Solomon and George (1999a, p. 27) also noted that some of the infants in their study had experienced extended and repeated separations from their father, which, as noted earlier, would have stressed these relationships further. To minimize the deleterious impact of extended separations from either parent, attachment theory tells us there should be more frequent transitions than would perhaps be desirable with older children (Kelly & Lamb, 2000). To be responsive to young children’s psychological needs, in other words, the parenting schedules adopted for children under age 2 or 3 should actually involve more transitions rather than fewer to ensure the continuity of both relationships and to promote the children’s security and comfort. Although no empirical research exists testing specific parenting plans following separation, it is likely, for example, that infants and toddlers would remain most comfortable and secure with a schedule that allowed the child to see his or her father at least three times a week, including at least one overnight extended stay (assuming the father is adequate), so that there is no separation of greater than 2 to 3 days. From the third year of life the ability to tolerate longer separations begins to increase, so that most toddlers can manage two consecutive overnights with each parent without stress. Interestingly, psychologists have long recognized the need to minimize the length of separations from attachment figures when devising parenting plans,
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but they have typically focused only on separations from the mother, thereby revealing their presumption that young children are not meaningfully attached to their father or that paternal involvement is a peripheral influence. The lingering resistance to overnights among professionals working with divorcing families appears to view fathers as essential strangers to their infants and toddlers rather than as important attachment figures. To the extent that children are attached to both of their parents, however, separations from both are stressful and at minimum generate psychic pain. As a result, parenting plans that allow children—especially very young children— to see their father every other Saturday for a few hours or every other shortened weekend (with perhaps a brief midweek visit) clearly fail to recognize the adverse consequences of week-long separations from the nonresident parent. It is little wonder that such arrangements lead to attenuation of the relationships between nonresident parents and their children. Instead, it is desirable to promote continued involvement by both parents, striving when necessary to increase the participation of those parents (typically fathers) whose limited prior involvement may initially make overnight contact inappropriate (Kelly & Lamb, 2003). Recently Fabricius and Luecken (2007) found that the more time a group of university students had lived as children with their father the better was their relationship with their father, independent of the amount of parent conflict. More time with fathers appeared to be beneficial in both high- and lowconflict families, and more exposure to parent conflict appeared to be detrimental (poorer health status and more distress) at both high and low levels of amount of time with fathers. Interparental conflict should thus be avoided wherever possible, but its presence should not be used to justify restrictions on children’s access to either of their parents. RESTRICTING CONTACT IN RESPONSE TO MARITAL CONFLICT Of course, there are some cases in which the possible benefits of keeping both parents involved are outweighed by the costs of doing so. Conflict-filled or violent relationships between the parents are most likely to trigger such costbenefit analyses because, as noted earlier, continuing high conflict is reliably associated with poorer child outcomes following divorce (Johnston, 1994; Kelly, 2000; Maccoby & Mnookin, 1992). Children in high-conflict families who have frequent contact with their father are more poorly adjusted than those in low-conflict families (Amato & Rezac, 1994; Hetherington, 1999; Johnston, 1994; Johnston, Kline, & Tschann, 1989; Maccoby & Mnookin, 1992). Interparental conflict should thus be avoided wherever possible, but litigation-related conflict and conflict triggered by the high levels of stress around the time of divorce do not appear to have enduring consequences for children.
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As a result, their occurrence should not be used to justify restrictions on children’s access to either of their parents. Maccoby and Mnookin (1992) cautioned that minor or isolated instances of domestic violence should not affect decisions regarding custody and visitation. The high conflict found harmful by researchers such as Johnston (1994; Johnston & Roseby, 1997) typically involved repeated incidents of spousal violence and verbal aggression between parents with substantial psychiatric problems and personality disorders that continued after divorce at intense levels for extended periods of time, often in front of the children. As a result, Johnston has emphasized the importance of continued relationships with both parents except in those relatively uncommon circumstances in which intense, protracted conflict or violence occurs and persists. According to Maccoby and Mnookin, somewhere around a quarter of divorcing families experience high levels of conflict around the time of divorce, and perhaps 10% of them may have conflict that is sufficiently severe and intractable that it may not be beneficial for the children concerned to have contact with their nonresident parent (see also Johnston, 1994). Not all entrenched postdivorce conflict involves both parents’ participation, however, because in a significant number of cases one parent has essentially disengaged emotionally from the other and is not promoting or instigating the conflict, but is a victim of the other parent’s rage and vindictiveness, intransigence, or failure to comply with parenting and financial orders, and therefore may need to return to court for assistance (Friedman, 2004; Kelly, 2003, 2005). Significant numbers of children have warm and supportive relationships with parents who have highly conflicted or violent relationships with one another, so we must be careful when reports of parental conflict are allowed to influence decisions about parent-child contact (Holden, Geffner, & Jouriles, 1998; Maccoby & Mnookin, 1992; Sternberg & Lamb, 1999). According to Appel and Holden (1998), 60% of the children whose parents were violent with one another were not themselves victims of physical child abuse, suggesting that decision makers need to assess the relationships with parents directly and not simply assume that children must have been abused because their parents were violent with one another. Unfortunately, however, mere allegations of conflict or marital violence can be powerful tools in an adversarial system, frequently resulting in reduced levels of court-approved contacts between fathers and children (Sternberg, 1997). Furthermore, disagreements about the occurrence, nature, and perpetrators of violence are quite common and do not always reveal self-serving biases (Braver & O’Connell, 1998; Sternberg, Lamb, & Dawud-Noursi, 1998). Newer research that differentiates among types of intimate partner violence is directly relevant to these issues of custody and access. Types of partner violence identified include situational couple violence, instigated by
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both men and women in fairly equal numbers, characterized most often by more minor forms of violence (pushing, shoving, grabbing). Injuries are not as common, and fear of the partner is not typical. Situational couple violence typically arises from arguments that spiral upward, and poor conflict management skills, rather than power, coercion, and control, are the central dynamics (Babcock, Costa, Green, & Eckhardt, 2004; M. P. Johnson, 2005; M. P. Johnson & Leone, 2005; Johnston & Campbell, 1993; Kelly & Johnson, in press; Stets & Straus, 1992). In contrast, battering (also called intimate terrorism), seen primarily in shelter and hospital samples, is perpetrated primarily by men, accounts for most of the injuries seen in women, and has coercion, control, and emotional abuse as the primary dynamics. Separationinstigated violence has also been identified in couples whose prior history together did not include any violence or coercion and control (Johnston & Campbell, 1993; Kelly, 1982). Although the experience of parental violence is always distressing, if not traumatic, for children, these differences among types of partner violence have implications for various postseparation interventions, screening, and the development of appropriate parenting plans for children (Jaffe, Johnston, Crooks, & Bala, in press; Kelly & Johnson, in press). Research on the impact of post- as opposed to predivorce conflict on children’s adjustment has yielded mixed results. Some investigators have found that marital conflict is a more potent predictor of postdivorce adjustment than is postdivorce conflict (Booth & Amato, 2001; Buehler et al., 1998; King & Heard, 1999; Kline, Johnston, & Tschann, 1991), whereas Hetherington (1999) found that postdivorce conflict had more adverse effects than did conflict in married families. Booth and Amato reported no association between the amount of postdivorce conflict and later adjustment in young adults. The varied findings may reflect the use of different measures, a failure to differentiate between types of conflict after divorce, differing parental styles of resolution, or variations in the extent to which children are directly exposed to anger and conflict. High conflict is more likely to be destructive postdivorce when parents use their children to express their anger and are verbally and physically aggressive on the phone or in person. By contrast, when parents continue to have conflict but encapsulate it and do not put their children in the middle, children appear unaffected (Buchanan, Maccoby, & Dornbusch, 1991; Hetherington, 1999). Buffers have also been identified that may protect children from the harmful effects of high parent conflict, including a good relationship with at least one parent or caregiver, parental warmth, and emotional support from a sibling (Hetherington & Kelly, 2002; Vandewater & Lansford, 1998). In addition, most experts agree that conflict localized around the time of separation and divorce is of less concern than conflict that was and remains an intrinsic and unresolved part of the parents’ relationship and continues after
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their divorce (Cummings et al., 2004; Cummings & O’Reilly, 1997; Johnston & Roseby, 1997). Similarly, conflict from which children are shielded does not appear to affect adjustment (Hetherington, 1999), whereas conflict that includes physical violence is more pathogenic than high conflict without violence (Jouriles, McDonald, Norwood, Vincent, & Mahoney, 1996; McNeal & Amato, 1998). The quality of the relationships between nonresidential parents and their children is also crucial when determining whether to sever or promote relationships between divorced parents and their children. Regardless of the level of violence, there are many families in which the nonresident father and children have a sufficiently poor relationship—perhaps because of the father’s psychopathology or substance or alcohol abuse—that maintenance of interaction or involvement may not be of net benefit to the children. However, we do not know how many relationships are like this. Unrepresentative data sets, such as those collected by Greif (1997) in the course of research designed to study fathers and mothers who lose contact with their children after divorce, suggest that perhaps 10% to 15% of parents do not have either the commitment or individual capacities to establish and maintain supportive and enriching relationships with their children following divorce. Taken together, Johnston’s and Greif’s estimates suggest that, at most, 15% to 20% (depending on how greatly the two groups of parents overlap) of the children whose parents divorce might not benefit from regular and extended contact with their nonresident parent. Stated differently, this suggests that more than 75% of the children experiencing their parents’ divorce could benefit from having and maintaining relationships with their nonresident parent. Instead of standard parenting plans, therefore, individual circumstances should be examined to ensure that the arrangements made are sensitive to the parents’ and children’s strengths, schedules, and needs (Kelly, 2005, 2007; Smyth & Chisholm, 2006). INTERVENTIONS THAT PROMOTE CHILDREN’S RESILIENCY In response to empirical research demonstrating the factors associated with risk in children whose parents have separated, a number of different interventions and best practices have been developed that focus on parents’ conflict and communication, quality of parenting, children’s reactions to separation and divorce, development of appropriate parenting plans, and sustainable agreements. Among the hierarchy of interventions available in the court system and community, both public and private, are education programs for separating parents, custody and divorce mediation programs, judicial settlement conferences, collaborative lawyering, specialized programs for parents with continuing high conflict postdivorce, and parenting
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coordination. Many programs have face validity and generally receive high ratings on parent satisfaction and self-reports of reduced parent conflict; however, only a small percentage have been empirically evaluated (Kelly, 2002; Trinder & Lamb, 2005). The most widespread and inexpensive interventions are education programs for separating parents that explain to parents the effects of divorce on children, the impact of parent conflict, the particular risk when parents use their children to express their anger and disagreement, and the need to separate children’s needs from adults’ needs, teach parenting skills, and often provide skill-based training to minimize conflict and promote more effective communication. At least in the short term, these courses appear to be effective (e.g., Arbuthnot & Gordon, 1996; Bacon & McKenzie, 2004; Ellis & Anderson, 2003; Pedro-Carroll, Nakhnikian, & Montes, 2001), particularly when the content is empirically based and includes skill-based training and role-play experiences. More extensive research-based parent education programs appear to bring about meaningful behavioral changes in both mothers and fathers (Haine, Sandler, Wolchik, Tein, & Dawson-McClure, 2003). Of all the divorce-related interventions implemented to date, custody and divorce mediation enjoys the most empirical support regarding the benefits to divorcing and divorced families (Emery, 1994; Emery, Laumann-Billings, Waldron, Sbarra, & Dillon, 2001; Kelly, 1996, 2002, 2004). The potential benefits are substantial in both the short term (e.g., earlier settlement of parenting disputes, reduced parental conflict, improved parental support) and the long term (e.g., more sustained contact between fathers and children 12 years later), relative to parents using the traditional adversarial system (Emery et al., 2001; Kelly, 2004). The increasing use of parenting coordinators over the past 2 decades in the United States represents an effort to address the needs of children in situations of very high conflict. Parenting coordination is a child-focused dispute resolution process designed to assist parents with a continuing history of high conflict to settle disputes regarding their children in a timely manner and to facilitate compliance with parenting plans and related court orders. A nonadversarial intervention, the parenting coordinator role combines case and conflict management, relevant parent education, mediation, and, when specified, arbitration of certain child-related disputes that the parents cannot settle on their own. Parenting coordination is generally viewed as a postdecree process for parents who have demonstrated a continuing inability to settle child-specific disputes through other means, including private negotiations, mediation, specialized parent education groups, settlement conferences, or following trial. Most parenting coordinators serve by stipulation of the parents and court order or by private consent agreements. In general, the judiciary has been supportive and enthusiastic; other professionals involved with these
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families have also indicated in surveys that parent coordinators can be very effective, especially in reducing the frequency and intensity of disputes (Coates, Deutsch, Starnes, Sullivan, & Sydlik, 2004). Parenting coordinators in jurisdictions with the most experience have revised and refined the role more precisely, which is reflected in the ‘‘Guidelines for Parenting Coordination’’ developed by an Association of Family and Conciliation Courts (AFCC) Task Force (2006), and the need for specialized training for mental health and legal professionals undertaking this role has been further articulated (AFCC Task Force, 2006; Kelly, in press). Although there is as yet no systematic research on long-term effectiveness, dramatic decreases in the rates of litigation (court appearances) in the first year after parent coordinators were appointed was reported in one unpublished dissertation (T. Johnson, 1994). Several articles in a recent special issue of Family Courts Review (2001) on the most problematic postdivorce families make clear that parent coordinators are among the most important interventions available to smooth the postseparation and divorce transitions. This point was underscored in the recent article by Coates and her colleagues (2004). There are a number of best practices that mental health professionals can provide to help separating parents reduce the risks that their children face. First, they can prepare parents to talk to their children about those aspects of the separation and divorce that directly affect their children. Most children are not informed about the details and meaning for them of the parental separation, are not invited to ask questions nor allowed an opportunity to give suggestions regarding their new living arrangements, and are not consulted regarding schedule changes (Dunn, Davies, O’Connor, & Sturgess, 2001; Smart, 2002; Smart & Neale, 2000). This leaves children to cope with these major changes in their lives without either emotional support or cognitive clarity. Second, professionals can become familiar with and promote awareness of various models for parenting plans that have been developed partly in response to research such as that described in this chapter. Instead of one standard visiting pattern, a menu of different time-sharing options for children of different ages encourages parents, professionals, and courts to consider children’s ages and developmental needs and achievements, as well as the quality of parent-child relationships, parents’ interest and capacity to be involved in their children’s lives, and children’s voices and input when appropriate. Parenting plan models typically include multiple options for living arrangements that range from traditional visiting, expanded access involving more midweek and weekend time, and variations of shared physical custody arrangements. Many of the parenting plan models available include highly detailed templates to guide parental choices with respect to legal decision making and parental responsibilities.1 It is important that
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agreements and court orders are sufficiently detailed so that both parents know when, where, and how their children will make the transitions between households, eliminating the ambiguity that angry parents exploit and that often cause one or both parents to argue in front of their children. Orders that use the vague language of ‘‘liberal visitation’’ invite sustained argument and, when the mother remains angry, do not sufficiently protect the children’s relationship with their father. Even in legal cultures that emphasize private ordering, lawyers, therapists, and custody evaluators should help parents develop specific schedules for children’s time with each parent, and courts should routinely expect such language and detail. Third, because transitions between households provide opportunities for discussion and argument, it is important when parents have a history of conflict to ensure that these exchanges take place in neutral settings and at times that limit contact between the parents. Parenting plans that extend weekends to Monday morning and use midweek overnights (assuming adequate parenting skills) rather than brief 3-hour visits have been used extensively by mediators, lawyers, and parenting coordinators in the past decade in the United States. In such plans, one parent drops the children off at school or day care, and the other parent picks them up at the end of the school day or from day care. Parenting coordinators report that many children benefit from the elimination of face-toface parent confrontations at the family residence or other meeting places, and conflict becomes a much less frequent experience. Increasing numbers of locations now have visitation exchange centers where children can be brought by one parent to reunite with the other without making it necessary for the parents to encounter one another directly. Such arrangements may be especially helpful when either the parents or the children are fearful, and they have been shown to increase the frequency of contact between the nonresident parent and the children while reducing levels of conflict between the parents (Flory, Dunn, Berg-Weger, & Milstead, 2001). Fourth, custody evaluators should become familiar and stay current with the empirical literature regarding attachment, child development, parentchild relationships, and children’s adjustment to separation and divorce. If they are to make recommendations to the court, a subject currently generating some controversy (Tippins & Wittmann, 2005), these recommendations should be grounded in and supported by the current research literature rather than theory or subjective bias (Kelly & Johnston, 2005). CONCLUSION In all, basic research on early social development and descriptive research on the multifaceted correlates of divorce have together yielded a clearer understanding of the ways divorce affects children and of how the welfare of
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many children could be enhanced by changes in common practices. Most important, we know that children benefit from supportive relationships with both of their parents, whether or not those parents live together. We also know that relationships are dynamic and are thus dependent on continued opportunities for interaction. To ensure that both adults become or remain parents to their children, postdivorce parenting plans need to encourage participation by both parents in as broad as possible an array of social contexts on a regular basis. Brief dinners and occasional weekend visits do not provide a broad enough or extensive enough basis for such relationships to be fostered, whereas weekday and weekend daytime and nighttime activities are important for children of all ages. In the absence of sufficiently broad and extensive interactions, many fathers drift out of their children’s lives, and children see their father as increasingly peripheral, placing these children at risk psychologically and materially. It is not clear exactly how much time is necessary to ensure that both parents stay involved in their children’s lives, and undoubtedly this will vary from family to family and depend on the age of the children. Braver and O’Connell (1998) have suggested that at least 33% of nonschool hours should be spent with the nonresident parent, and most experts would agree that 15% (every other weekend) is almost certainly insufficient. To date, unfortunately, policy makers, judges, and lawyers in many jurisdictions have not been very attentive to the importance of promoting children’s relationships with both of their parents. Representative statistics are not readily available (see Smyth, 2004), although there is general satisfaction in many countries and jurisdictions (and among mothers) with postseparation arrangements that ensure regular contact without sufficient effort made to ensure that the contact is sufficient for children to be able to maintain meaningful relationships with their nonresident parent, the overwhelmingly number of whom are fathers. The default arrangements recommended by most lawyers or solicitors typically involve visits every other weekend rather than arrangements that allow the nonresident father to really be involved in his children’s lives. Furthermore, reasoned discussion about the potential benefits of greater involvement by nonresident parents has been drowned out by poisonous rhetoric from groups and individuals mired in gendered concerns about fairness for parents rather than children’s best interests. On the other hand, as we made clear in the previous section, many innovative practices and programs have been developed over the past few decades as increasing numbers of professionals have come to recognize the importance of promoting continued relationships between children and both of their separating parents. These trends augur well for the future.
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NOTE 1. For examples of parenting plan models, see Alaska Court System, Model Parenting Agreement, www.state.ak.us/courts/forms/dr-475.pdf; American Academy of Matrimonial Lawyers, Model for a Parenting Plan; State Bar of Arizona, Model Parenting Time Plans—for Parent/Child Access, www.supreme.state.az.us/dr/ Pdf/Parenting_Time_Plan_Final.pdf; Association of Family and Conciliation Courts, Planning for Shared Parenting, www.afccnet.org;
[email protected] (for research annotated schedules).
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Lamb, M. E. (in press). Improving the quality of parent-child contact in separating families. In M. Maclean (Ed.), Contact between children and separated parents. Oxford: Hart Publishing. Lamb, M. E., Bornstein, M. H., & Teti, D. M. (2002). Development in infancy (4th ed.) Mahwah, NJ: Erlbaum. Lamb, M. E., & Kelly, J. B. (2001). Using the empirical literature to guide the development of parenting plans for young children: A rejoinder to Solomon and Biringen. Family Courts Review, 39, 365–371. Lamb, M. E., & Lewis, C. (2004). The development and significance of father-child relationships in two-parent families. In M. E. Lamb (Ed.), The role of the father in child development (4th ed., pp. 272–306). Hoboken, NJ: Wiley. Lamb, M. E., & Lewis, C. (2005). The role of parent-child relationships in child development. In M. H. Bornstein & M. E. Lamb (Eds.), Developmental science: An advanced textbook (5th ed., pp. 429–468). Mahwah, NJ: Erlbaum. Lamb, M. E., Sternberg, K. J., & Thompson, R. A. (1997). The effects of divorce and custody arrangements on children’s behavior, development, and adjustment. Family and Conciliation Courts Review, 35, 393–404. Lamb, M. E., Thompson, R. A., Gardner, W. P., & Charnov, E. L. (1985). Infant-mother attachment. Hillsdale, NJ: Erlbaum. Laumann-Billings, L., & Emery, R. E. (2000). Distress among young adults in divorced families. Journal of Family Psychology, 14, 671–687. Maccoby, E. E., & Mnookin, R. H. (1992). Dividing the child: Social and legal dilemmas of custody. Cambridge, MA: Harvard University Press. Martinez, C. R., Jr., & Forgatch, M. S. (2002). Adjusting to change: Linking family structure transitions with parenting and boys’ adjustment. Journal of Family Psychology, 16, 107–111. McLanahan, S. S. (1999). Father absence and the welfare of children. In E. M. Hetherington (Ed.), Coping with divorce, single parenting, and remarriage (pp. 117– 146). Mahwah, NJ: Erlbaum. McLanahan, S. S., & Sandefur, G. (1994). Growing up with a single parent: What hurts, what helps. Cambridge, MA: Harvard University Press. McLanahan, S. S., & Teitler, J. (1999). The consequences of father absence. In M. E. Lamb (Ed.), Parenting and child development in nontraditional families (pp. 83–102). Mahwah, NJ: Erlbaum. McNeal, C., & Amato, P. R. (1998). Parents’ marital violence: Long-term consequences for children. Journal of Family Issues, 19, 123–139. Menning, C. L. (2006). Nonresident fathers’ involvement and adolescents’ smoking. Journal of Health and Social Behaviour, 47, 32–46. Nord, C., Brimhall, D., & West, J. (1997). Fathers’ involvement in their children’s schools. Washington, DC: National Center for Education Statistics, U.S. Department of Education. Parke, R. (1996). Fatherhood. Cambridge, MA: Harvard University Press. Pedro-Carroll, J., Nakhnikian, E., & Montes, G. (2001). Assisting children through transition: Helping parents protect their children from the toxic effects of ongoing conflict in the aftermath of divorce. Family Court Review, 39, 377.
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Pleck, J. H. (1997). Paternal involvement: Levels, sources, and consequences. In M. E. Lamb (Ed.), The role of the father in child development (3rd ed.) (pp. 66–103). Hoboken, NJ: Wiley. Pleck, J. H., & Masciadrelli, B. (2004). Paternal involvement: Levels, sources, and consequences. In M. E. Lamb (Ed.), The role of the father in child development (4th ed., pp. 222–271). Hoboken, NJ: Wiley. Pruett, M. K., Insabella, G. M., & Gustafson, K. (2005). The collaborative divorce project: A court-based intervention for separating parents with young children. Family Courts Review, 43, 38–51. Pruett, M. K., Williams, T. Y., Insabella, G., & Little, T. D. (2003). Family and legal indicators of child adjustment to divorce among families with young children. Journal of Family Psychology, 17, 169–180. Robertson, J., & Robertson, J. (1971). Young children in brief separation: A fresh look. Psychoanalytic Study of the Child, 26, 264–315. Schwartz, S. J., & Finley, G. E. (2005). Divorce-related variables as predictors of young adults’ retrospective fathering reports. Journal of Divorce and Remarriage, 44, 145–163. Simons, R. L.; Johnson, C.; Lorenz, F. O.; Simons, R. L. (1996). Understanding differences between divorced and intact families. Thousand Oaks, CA: Sage. Simons, R. L., Lin, K. H., Gordon, L. C., Conger, R. D., & Lorenz, F. O. (1999). Explaining the higher incidence of adjustment problems among children of divorce compared with those in two-parent families. Journal of Marriage and the Family, 61, 1020–1033. Smart, C. (2002). From children’s shoes to children’s voices. Family Court Review, 40, 307–319. Smart, C., & Neale, B. (2000, March). It’s my life too: Children’s perspectives on postdivorce parenting. Family Law, 163–169. Smith, A. B., & Gallop, M. M. (2001). What children think separating parents should know. New Zealand Journal of Psychology, 30, 23–31. Smyth, B. M. (2004). Parent-child contact schedules after divorce. Family Matters, 69, 32–43. Smyth, B. M., & Chisholm, R. (2006). Exploring options for parental care of children following separation: A primer for family law specialists. Australian Journal of Family Law, 20, 193–218. Solomon, J., & Biringen, Z. (2001). Another look at the developmental research: Commentary on Kelly and Lamb’s ‘‘Using child development research to make appropriate custody and access decisions for young children.’’ Family Courts Review, 39, 355–364. Solomon, J., & George, C. (1999a). The development of attachment in separated and divorced families: Effects of overnight visitation, parent, and couple variables. Attachment and Human Development, 1, 2–33. Solomon, J., & George, C. (1999b). The effects of overnight visitation in divorced and separated families: A longitudinal follow-up. In J. Solomon & C. George (Eds.), Attachment disorganization (pp. 243–264). New York: Guilford Press.
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Sternberg, K. J. (1997). Fathers, the missing parents in research on family violenceb. In M. E. Lamb (Ed.), The role of the father in child development (3rd ed., pp. 284–308; 392– 397) New York: Wiley. Sternberg, K. J., & Lamb, M. E. (1999). Violent families. In M. E. Lamb (Ed.), Parenting and child development in ‘‘nontraditional’’ families (pp. 305–325). Mahwah, NJ: Erlbaum. Sternberg, K. J., Lamb, M. E., & Dawud-Noursi, S. (1998). Understanding domestic violence and its effects: Making sense of divergent reports and perspectives. In G. W. Holden, R. Geffner, & E. W. Jouriles (Eds.), Children exposed to family violence (pp. 121–156). Washington, DC: American Psychological Association. Stets, J., & Straus, M. (1992). The marriage license as a hitting license: Physical violence in American families. New Brunswick, NJ: Transaction. Sturge-Apple, M. L., Davies, P. T., & Cummings, E. M. (2006). Hostility and withdrawal in marital conflict: Effects on parental emotional unavailability and inconsistent discipline. Journal of Family Psychology, 20, 227–238. Thompson, R. A. (2006). Early sociopersonality development. In W. Damon, R. A. Lerner, & N. Eisenberg (Eds.), Handbook of child development: Vol. 3. Social, emotional, and personality development (6th ed.). Hoboken, NJ: Wiley. Thompson, R. A., & Laible, D. J. (1999). Noncustodial parents. In M. E. Lamb (Ed.), Parenting and child development in ‘‘nontraditional’’ families (pp. 103–123). Mahwah, NJ: Erlbaum. Tippins, T. M., & Wittmann, J. P. (2005). Empirical and ethical problems with custody recommendations: A call for clinical humility and judicial vigilance. Family Court Review, 43. Trinder, L., & Lamb, M. E. (2005). Measuring up? The relationship between correlates of children’s adjustment and both family law and policy in England. Louisiana Law Review, 65, 1509–1537. Vandewater, E., & Lansford, J. (1998). Influences of family structure and parental conflict on children’s well-being. Family Relations, 47, 323–330. van lJzendoorn, M. H., & DeWolff, M. S. (1997). In search of the absent father: Metaanalyses of infant-father attachment: A rejoinder to our discussants. Child Development, 68, 604–609. Wallerstein, J., & Kelly, J. (1980). Surviving the breakup: How children and parents cope with divorce. New York: Basic Books. Warshak, R. A. (2000). Blanket restrictions: Overnight contact between parents and young children. Family and Conciliation Courts Review, 38, 422–445. Woodward, L., Ferguson, D. M., & Belsky, J. (2000). Timing of parental separation and attachment to parents in adolescence: Results of a prospective study from birth to age 16. Journal of Marriage and the Family, 62, 162–174. Yarrow, L. J. (1963). Research in dimensions of early maternal care. Merrill-Palmer Quarterly, 9, 101–114. Yarrow, L. J., & Goodwin, M. (1973). The immediate impact of separation: Reactions of infants to a change in mother figures. In L. J. Stone, H. T. Smith, & L. B. Murphy (Eds.), The competent infant (pp. 1032–1040). New York: Basic Books.
CHAPTER 8
Divorce, Custody, and Visitation in Middle Childhood LOUIS KRAUS, ROBIN SHAPIRO, and ROBERT M. GALATZER-LEVY
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children in early and middle childhood should reflect the developmental needs of a child. There are many factors to consider with regard to a child’s needs; in addition there is a vast amount of literature that discusses normal and abnormal child development. It is clear from studies that a child’s development is likely to be affected by stressful events such as parental discord, separation, and divorce (Hetherington, 2005; Roseby & Johnston, 1998). Factors to consider when attempting to meet a child’s needs are, among others, the child’s current level of functioning and development, which may be different from the chronological age; the child’s attachment to each parent; protective factors and risk factors; cognition; moral development; religion; and community and other aspects of the child’s support. In addition one must also consider how custody may facilitate future development into adolescence and adulthood. The goal of this chapter is to outline those developmental needs, particularly as they may be affected by custody and visitation arrangements. Although we outline generalizations, as in all aspects of custody arrangement, each child should be assessed individually. It is important to remember that guidelines for development interpret how the average child may develop, but many children diverge from normal development, especially in the stressful context of parental separation. Custody and visitation decisions must take the individual child’s differences into account. A word about terminology: We call the period from roughly about 3 to 5 years old the ‘‘preschool’’ period because, although formal education is initiated even at earlier ages, this term captures the social status of most of these youngsters. Preschoolers are expected to learn in informal ways, at USTODY ARRANGEMENT OF
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most, while opportunities for engaging in educational activities outside the family are present. This period is separated from the era we call ‘‘middle childhood’’ by a dramatic shift in cognitive and emotional functioning in which most children develop the abilities needed to read, to conceptualize the world from some other point of view than their own, and to commit to sustained efforts toward a goal (Shapiro & Perry, 1976). This shift appears to be largely independent of cultural factors. Sometime between ages 11 and 14 children enter adolescence, a psychosocial period in which initiation is usually proximate to the obvious biological changes of puberty. In addition to the physical maturation of puberty and the associated increase in sexual interest and reproductive capacity, adolescence includes a dramatic increase in the potential for abstract thought and a change in psychological focus to the world beyond the nuclear family and immediate community. In addition, teens begin to progress and develop abstract reasoning. Older psychological theories emphasized psychosexual development as the core of the personality. We still often refer to the preschool period as the ‘‘Oedipal period’’ and the era we call middle childhood as ‘‘latency.’’ The Oedipal fantasy, typical of this period, is that the child will displace one of the parents in relationship to the other and fears retribution from the displaced parent. Latency refers to the greatly diminished interest in sensual pleasure thought to be typical of this period. Some theorists question the extent to which these are features of the respective periods. It is even more questionable whether they actually constitute the core psychological events for each developmental stage. Nevertheless, we have included a discussion of the psychoanalytic perspective as it still constitutes a part of the customary platform to understanding child development, and so the reader may follow this and other psychological descriptions of this period.
DEVELOPMENT DURING THE PRESCHOOL AND MIDDLE CHILDHOOD YEARS Middle childhood development can be described along various lines. As mentioned, one can think in terms of physical development, psychological development, cognitive development, and social development of the child. Each line of development is not distinct, and they inevitably interact. With this in mind, we outline the following lines of development with the idea that there are more factors that tie into a child’s development not mentioned. In other words, we have chosen the most important lines to examine with regard to the child’s development: cognitive development, attachment, fantasy, temperament, community and school influences, moral development, and religion.
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COGNITION It is important to understand how a child looks at the world and the capacity of the child to understand what is before him or her. One of the most notable experts in the cognitive development of the child is the developmental psychologist Jean Piaget (1929). Piaget provided the platform from which most conceptualize the cognitive development of the child. As the child moves through each of the four stages described by Piaget, the child becomes capable of thinking in an abstract, logical, and systematic manner. From birth to about 2 years old, the sensorimotor stage, the infant learns through sensory observation and develops the concept of object permanence (Gruber & Voneche, 1976). By 2 to 7 years of age, the stage of preoperational thought, the child begins to think intuitively, without logical or deductive thought. Piaget described that children under 6 believed the moon was trying to light their way. Children at this stage are egocentric, as they see themselves as the center of the universe. They also engage in magical thinking. It is important to understand that at this stage children have a sense of ‘‘immanent justice,’’ the belief that punishment for bad deeds is inevitable (Gruber & Voneche, 1976). At the age of 7 to 11 years, the stage of concrete operations, the child is able to be less egocentric and see things from someone else’s perspective. Children can reason and follow rules and begin to develop a moral sense. The achievement at this stage of development is the concept of conservation, with which the child is able to recognize that although the shape of the object may change, the object still maintains its original characteristics (Gruber & Voneche, 1976). The main task at this age, also called the latency stage, is developing a sense of self. Finally, the stage of formal operations occurs around age 11 through adolescence. This is the stage in which the child achieves the ability to think in a formal, logical, and abstract manner (Gruber & Voneche, 1976). Adolescence is the point at which abstract reasoning and the ability to make decisions increase. Adolescents make decisions based on both emotions and experience. When they are in situations where they lack experience, which is usual, their decision making is based largely on emotions (Petersen & Leffert, 1995). From the description of each stage one can infer how a child may perceive and conceptualize parental separation. The child in the sensorimotor stage has not yet accomplished object permanence, and separation from one parent, especially the mother, is likely to provoke anxiety. Children in the preoperational stage are unable to conceptualize cause and effect and may think parental separation is punishment for their bad deeds. Children in the concrete operational stage have not yet mastered thinking abstractly and have trouble dealing with the future and possibilities of the future.
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The development and mastery of each stage of cognition is fostered by the child’s environment. Cognitive development is dependent on surroundings that support maturation. When a parent’s cognition or social cognition is faulty, children are likely to have difficulty in fully developing in each area. For example, when, because of their own needs, parents are convinced that any action that causes them distress must arise from another’s malice, it is hard for the child to learn that others may act in distressing ways for many reasons other than malice, including because they have different views of the situation or different values. During middle childhood children are expected to master most of the fundamental intellectual skills needed to function in society. Many individuals reach their most mature fundamental level of thinking by the end of middle childhood. Children who fail to develop these basic competencies are at a large disadvantage in society. Children’s school education is profoundly affected by their home environment. Good parent role-modeling is essential. If the home situation is stressful or not conducive to allowing the child to focus on a task at home, the child is less likely to adequately learn in the classroom. The parent is often responsible for making sure the child has completed his or her homework and is prepared for the school week and must reinforce things learned in school. The active participation of the parent in education can directly influence the child’s cognitive development. This becomes even more essential if the child suffers from a learning disability, Attention-Deficit/Hyperactivity Disorder, or an emotional disturbance. In summary, the parental role in cognitive development and education may be fateful for the child’s overall well-being. ATTACHMENT Because attachment is addressed in a separate chapter of this book the topic will not be duplicated. It should be mentioned, however, that attachment is an important area to address in a custody assessment. The quality of the childparent relationship needs to be thoroughly evaluated and addressed. In addition, future implications with regard to custody and visitation should be considered. The emotionally charged nature of divorce, separation, economic hardships, greater household demands, and transitions is difficult on all family members and may adversely affect the child-parent relationship (White, Brinkerhoff, & Booth, 1985). FANTASY For an adult, fantasies are often not a prominent component of everyday life. However, for the child, personal fantasy, both conscious and unconscious desires, are a common drive in development and coping strategies. From the
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beginning of the preschool period until the end of middle childhood, fantasy remains an important part of the child’s experience. Its significance decreases as the child matures, although even older children still use fantasy to cope. Certain fantasies are common in various age groups. This is observed in play, dreams, and desires, all of which can play a role in a child’s achievement. For example, the boy who steps up to bat in a Little League game may imagine being a major league hero; the girl who puts on a dress for a party may imagine herself to be a princess going to a royal ball. Fantasy may also be a major coping strategy for a child whose parents are separating. Normal childhood activities often encompass some component of fantasy. This includes play and pretend play, imagination and imaginary friends. One cannot minimize the importance of fantasy even for older children. For example, one study demonstrated that school-age children age 6 to 7 have an imaginary friend at least as commonly as 3- to 4-year-olds (Taylor, Carlson, Maring, Gerow, & Charley, 2004). In this same study of a sample of 6- to 7-year-olds, 65% had an imaginary companion. Children commonly use fantasy to enhance their self-esteem. Experiencing imaginary companions is part of child development. Imaginary companions may be common in as many as 43% of children ages 5 to 9 and continue in even older children (Pearson et al., 2001). These studies demonstrate that imagination and play continue through middle childhood and are not just attributable to young children. Many emotionally charged events such as divorce stimulate fantasy, often intense fantasies. It is thought that the emotional impact of the event is often contingent on the fantasies associated with it. For example, the girl who imagines herself going to the royal ball will be affected more severely by a tear in her dress than a girl who simply sees the dress as a piece of clothing. Sometimes the ambiguity of divorce can precipitate upsetting fantasies. Children who have no external reason to question the stability of their family often do not question the situation. However, when unexpectedly a dramatic change occurs, all sorts of fantasies may occur. Children may wonder, ‘‘If Dad can leave the house, will he also abandon me?’’ Oedipal Fantasies Sigmund Freud (1927/1961) described the Oedipal stage of fantasy, and classical psychoanalysts believe that the Oedipus complex is the centerpiece of child development. Adequate resolution of the conflict forms the basis for satisfactory love and relationships in later life. The Oedipal stage, or conflict, occurs between ages 3 and 6; it is described as the child having the fantasy of marrying one parent and displacing the other. The value of this analytic concept in the contemporary understanding of a child who experiences divorce remains controversial. The notion that Oedipal fantasies occupy the premier place suggested by classical analysts is often challenged
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by contemporary therapists; however, it does not mean that for some youngsters they are not of considerable importance or that the destabilization of the family inherent in a divorce cannot serve as a strong problematic stimulus for these fantasies. Fantasies of Heroes Besides the Oedipal fantasy, other forms of fantasy often play a role in the child’s life. Recurring themes of heroes and fantasies of personal grandeur and violence often play a role in the life of a child who experiences parental separation. For example, a child might imagine that a relationship to a powerful or admirable figure is essential to his or her own development (Kohut, 1971). Divorce my interrupt or distort these fantasies. This may occur because the child has less contact with the admired figure, because the figure is now seen as diminished by the failure of the marriage, or because the adjustment to divorce leads parents to function less well than they ordinarily do. A child who admires a parent may perceive that parent as perfect; in the stress of separation, the child may come to the realization that one or even both parents are no longer perfect. This typically is a painful and traumatic process. The de-idealization of one or both parents and the interruption of this fantasy may be extremely difficult for the child. In simple terms, children may feel as if they have lost their hero when they discover that the parent is no longer perfect. Fantasy of Personal Grandeur The fantasy of personal grandeur and accomplishment is one of the turning points in childhood. The capacity of the child to maintain a sense of enthusiasm and pleasure in accomplishment while becoming increasingly realistic about his or her actual abilities is among the major achievements of childhood. This milestone should be facilitated by parents, who should help the child regulate the intensity of both positive and negative fantasies. Children must be able to share the joy of being Superman saving the planet and also be able to regulate the humiliation of being unable to tie their shoes. Once again, a parent’s physical presence and emotional availability is crucial to the accomplishment of this task. In the absence of either, such as in divorce, a significant problem occurs for the child. Fantasy of Violence Unfortunately, the fantasy of violence must be addressed in this discussion. When physical or verbal violence is inadequately regulated, the youngster is likely to have particular difficulty separating fantasy from action (Campbell, Sapochnik, & Muncer, 1997). Exposure to intense parental conflict interferes with the child’s clear differentiation of fantasy from reality in this crucial area. Conditions that produce increased aggressive impulses and provide limited control may lead to violent fantasies becoming violent acts (Gruber & Voneche, 1976). High levels of conflict between the
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parents, especially when they involve physical or verbal violence, are particularly likely to stimulate unmanageable fantasies in children (Kilpatrick, 1997). Clearly this implies that custody and visitation be arranged to promote optimal development in this area. To summarize the role of fantasy in divorce and custody evaluations, it is important to understand that fantasies can be a double-edged sword. They may serve a useful coping strategy, providing an opportunity to work through a difficult situation, or they may take on a frightening and destructive quality, devastating a child’s ability to manage what is already a difficult situation. One must assess a child’s developmental level and the ability of each parent to foster positive components of fantasy and to be sensitive to the psychology of the child. Cultural, societal, and individual differences for each child must be considered. For example, some children may enjoy a graphic, violent fantasy and appreciate the fantastic nature of it, whereas others may be unable to tolerate similar depictions. The evaluator should ask not only whether the parent remains within wide social norms in the area of what is age appropriate to the child but also whether the parent has the capacity to note the child’s needs and responses in this area.
TEMPERAMENT We usually discuss temperament in terms of younger childhood years, but in actuality temperament develops and changes through adolescence. Thomas and Chess were the pioneers of this discussion, and their work remains the foundation from which most clinicians observe child temperament. Temperament is described as the how, or style, of behavior. It is believed by most to be the personality or characteristics biologically inherent in the child; however, it is subject to development and change by environmental influences. Children’s temperament and personality moderate their response to the stress of parental separation (Hetherington, 2005). Thomas and Chess studied temperament in 128 children from 85 families over a 20- to 30-year period. They established nine dimensions of temperament to evaluate children: activity level, rhythmicity/regularity, approach/ withdrawal, adaptability, threshold of responsiveness, intensity of reaction, quality of mood, distractibility, and attention span and persistence. Three constellations of temperament were described to provide a qualitative analysis: easy temperament, difficult temperament, and ‘‘slow to warm up’’ (Chess, 2002). Qualitative and quantitative analyses were carried out. Thomas and Chess established that the group of temperamentally easy children are simple for the caregiver to manage. In contrast, the difficult children are not easy to manage and find new situations distressing. Thomas and Chess found
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that ‘‘goodness of fit’’ results when the parents’ expectations or demands of their children are in consonance with the child’s temperament and capabilities. ‘‘Poorness of fit’’ was found when dissonances between environmental opportunities and the child’s capacities and temperament existed. Under such circumstances, distorted and maladaptive functioning occurred. According to Chess, ‘‘The paradigm of goodness or poorness of fit provides a framework for the prevention or treatment of childhood behavior disorders through the valuable tool of parent guidance’’ (p. 220). Children with an easy temperament and other positive attributes such as self-esteem, intelligence, and attractiveness are likely to evoke positive responses and support from others and cope better with the stress of divorce. The converse is true for difficult children. These differences in temperament also become more apparent in the more adversarial separations and diminish in the light of more amicable divorces and in the presence of a parent who is able to monitor, communicate with, and nurture the child (Hetherington, 2005). In their longitudinal study of early adopted children, Jaffari-Bimmel, Juffer, van IJzendoorn, Bakermans-Kranenburg, and Mooijaart (2006) found that child temperament plays a significant part in shaping social development in adolescence, but that maternal sensitivity was also important. Maternal sensitivity in middle childhood and in adolescence partly buffered the negative effects of difficult temperament on social development in adolescence. The point of this discussion on temperament is that children have their own characteristics and personality from birth. But parents and the environment also help shape, buffer, and adjust temperamental characteristics, as these are not fixed entities. Based on the child’s temperament, he or she will react to tension in the family and the strain of divorce in individual ways. According to Thomas and Chess’s theory of ‘‘goodness of fit,’’ children’s response to, reaction to, and ability to get along with each parent may be unique. Understanding what temperament is and how it functions will assist in understanding how and why the child reacts to the separation. MORAL DEVELOPMENT The lifelong process of the development of a moral capacity makes major strides during childhood. Moral development is a continual process, in which one develops the ability to match a moral view to one’s own experience of life in a social world (Kohlberg & Kramer, 1969). Lawrence Kohlberg, one of history’s great theorists of moral development, incorporated and expanded on Piaget’s ideas of moral development and through his research at the University of Chicago addressed the issues of how a child becomes capable of morality. As Wolff (2002) explains, at 7 or 8 a child can reason about moral issues. Children’s cognitions, especially their attributions of hostile intent,
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their peer relationships, and their prosocial behavior, remain crucially influenced by their experiences, both in the family and at school. According to Kohlberg, ‘‘The child can internalize the moral values of his parents and culture and make them his own only as he comes to relate these values to comprehended social order and to his own goals as a social self’’ (quoted in Hock, 2002; see also Kohlberg, 1964). Kohlberg (1963) further explains that internal moral standards are primitive, and transformations accompany cognitive growth in the ordering of a social world in which the child interacts. Kohlberg studied a group of boys in Chicago and defined their moral stages as six developmental types of value orientation, of which there are three major levels. Moral development was placed on this continuum, with the lowest level being driven by instinctive impulses modified by reward and punishment. At the next level conduct is based on anticipation of social praise and blame. At the highest level conduct is controlled by an ideal that enables one to act in a way that seems acceptable regardless of the praise or blame accorded by one’s immediate surroundings. Kohlberg concluded from these studies that in the early years, praise and blame control the child’s conduct. In the preadolescent years, individuals make decisions based on what is good for themselves by anticipating possible disapproval and holding approval as the final internal goal. At this stage in the development of moral standards, the child looks to the authority figure to define what is right and wrong. The children studied tended to insist that the authority figure would adjust the rules in the interest of the various individuals involved. At more mature stages, the child will accept conflict between norms and try to rationalize the decision between conflicting norms. Kohlberg explained that as the child moves from one stage of moral development to the next, at first the child’s awareness of the external social world plays a major role in how the child decides right and wrong; this in turn allows the child to develop the ability to process and organize morality based on ideals and principles of his or her own. This is the hierarchy of moral development. The external social world’s reinforcement is essential in the earlier stages, whereas in the later stages the child is able to process and organize morality more complexly according to past experiences. As this history of moral development demonstrates, the child’s environment, especially early on, plays a key role in moral growth. The child whose parent substantially deviates from society’s norms is put in a difficult position. The child must either struggle with the ongoing belief that the parent is immoral or adopt the parent’s attitudes, which then puts the child in conflict with society. In some instances, this tension may ultimately result in the child’s developing a more mature, more thoughtful moral stance. For example, when the parent takes a socially deviant but principled position, the child has an opportunity to engage questions of right and wrong from a
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position that transcends ordinary rule-following thinking. However, children are more frequently confronted with parental deviance resulting from failures in the parents’ moral development or driven by the parents’ overriding emotional needs. Assessing the significance of mild to moderate antisocial behavior in the parent for the child’s moral development is complicated in our society’s lack of consensus about the moral significance of many delinquent actions. In this context, the evaluator is at risk of introducing personal values into recommendations and decision about custody and visitation. In the context of custody disputes, a parent’s moral failings often are brought forth in a fashion that suggests that the child will be profoundly corrupted by behaviors that in other contexts may be socially disapproved but are not treated with similar weight. In assessing such situations, the evaluator must focus on how the behavior is likely to impact the child, if at all. Does the behavior put the child at risk? Is the child likely to experience shame due to the behavior? Is the child likely to learn and practice conduct that is socially unacceptable? Is one parent’s deviant behavior being used by the other parent as a means to interfere with the child’s relationship with the deviant parent? Is the deviant parent acting in such a manner as to interfere with the child’s development and the other parent’s relationship with the child? All of these acts of moral behavior on the part of the parents must be considered when evaluating the child. RELIGION For many, including children, religious involvement can provide a profound amount of support and sense of well-being in a tumultuous situation. Religious affiliation can be powerful. In the context of a very chaotic time in one’s life it may be the one stable entity. Religion provides a sense of belonging, support, moral and ethical guidance, sometimes financial support, and organization and direction when they are otherwise lacking. A child may look to the church as the one consistent thing in his or her life. Nevertheless, religion can also be a source of contention between parents, especially in the case of interfaith marriages. Goldzband (2000) highlights the importance of understanding the religious background of the parents. The expert must also recognize the attitudes of the religious community in which the family lives. Those attitudes may be rejecting of the children as well as of the parents. Goldzband reviews several religions and perspectives on divorce. Clergy members often have already been consulted and provided advice to the family. Clergy may have emphasized a perspective to the parents prior to the need for a custody battle; therefore, knowledge and understanding of the religious perspective of the family is necessary.
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The nature of religious involvement normally changes as an individual matures. For most people, the foundation of religious involvement is laid during middle childhood (Rizzuto, 1979). From a psychological point of view, a child is most likely to effectively engage religion that is presented without contradiction and complication in its full emotional power. Where parents disagree about religious upbringing, the importance of this factor must be weighed against the potential for the child to feel that one of the parents is in some way bad or lacking, the parent’s sense of helplessness in seeing the child raised in a way the parent believes to be actively harmful, and the delicate problems associated with the legal system intervening in a family’s religious life. With that said, one must also use caution when attempts are made to compromise by having multiple religious viewpoints introduced to a child. This could be confusing and provide more harm than benefit. THE COMMUNITY Places other than the church that provide support and influence a child’s development are school, clubs, afterschool care, sports teams, and social groups. In fact, one study demonstrated that during adolescence children spend less time with their family not because of conflict but because of opportunities (Larson, Richards, Moneta, Holmbeck, & Duckett, 1996). In each context there are people, often adults, that play a large role in a child’s development. Teachers, coaches, group leaders, and friends begin to provide a wider support network as the child grows into middle childhood. Often the child will seek out these supports when the original family cannot provide such support. These community resources often function well beyond what they are meant to provide. For example, in the context of a family who is less able to support a child’s development a friend’s parent or teacher may step in as a surrogate parent. This provides a sense of security, consistency, and often positive role modeling when this is lacking in the natural home environment. These valuable resources must be considered in custody and visitation decisions, as keeping them in place is often very important to the child’s development. As much as possible, consistency should be maintained for the child’s involvement in these resources. THE CHILD CUSTODY EVALUATION IN EARLY AND MIDDLE CHILDHOOD A developmental understanding of early and middle childhood is fundamental for the evaluation of children during this period. Our understanding of normal development supports an evaluation of the child’s current developmental course and provides an understanding if factors have caused the child
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to diverge from what we consider normal. The American Academy of Child and Adolescent Psychiatry (AACAP; 1997) has set forth practice parameters for custody evaluations. These will be updated in the next several years. Given the tender nature of the process, one should be familiar with the guidelines to provide a consistent, complete, and psychologically appropriate evaluation and determination.
THE EVALUATOR To begin with, the evaluator should have formal training in forensic assessments, as the sensitive nature of the evaluation consists of a specific style and a set of skills unique to this experience. In addition, familiarity with family law in one’s local jurisdiction is important (AACAP, 1997). Mental health professionals are trained to perform the role of the clinician; however, one must clearly avoid this when performing a custody evaluation. The nature of the evaluation is neither confidential nor clinical. There is no role for treatment during this process, and this must be made clear to evaluees before any further action in evaluation is taken. This concept may be difficult for children, but it is even more essential for the adults to understand. In addition, the information that the professional obtains is often similar to but distinctly different from that which a clinician seeks out. For example, when a child says to the custody evaluator, ‘‘My mother always yells at me,’’ the evaluator needs to obtain specifics, such as how often and in what situation the yelling occurs. This is in contrast to the clinical focus of continuing to explore the child’s subjective experience and psychological insight into the event. Children can cooperate and provide the requested information best when the evaluator makes it clear what kind of information he or she is seeking. Trying to fulfill both roles of clinician and evaluator is wrong and will likely have negative impacts on both the evaluation and the therapy. The AACAP (1997) also recommends that the evaluator should not self-refer any of the parties for treatment following the custody evaluation: Treating clinicians are advocates or agents for children and ideally are partners with parents or guardians in the therapeutic alliance. In contrast, the forensic evaluator, while guided by the child’s best interests, has no duty to the child or his or her parents. The forensic evaluator reports to the court or attorney involved rather than to the parties being evaluated. Thus, the aim of the forensic evaluation is not to relieve suffering or to treat, but to provide objective information and informed opinions to help the court render a custody decision. Forensic evaluators must be mindful of this role and convey this in full to all parties before beginning the evaluation.
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THE EVALUATION The AACAP (1997) practice parameters are a comprehensive list of topics that must be considered in the evaluation. Although somewhat antiquated, the general concepts are important. These include topics such as continuity, attachment, education, gender issues, sibling relationships, parental wellbeing, and preference, just to name a few. In many cases there also are special topics. The evaluation should essentially focus on the bond of each parent to the child and the capacity of each parent to fulfill parental roles. Hopefully the answers to these questions will determine which custody arrangements will provide for the best interest of the child and fulfill the needs of the child. Of course, any potential safety issues or incapacities of a parent should trump the aforementioned issues. Guidelines from the American Psychological Association (APA; 1994) stress the need for multiple methods of data collection, caution against overinterpreting or inappropriately interpreting data, and emphasize the primacy of parenting capacity and fitting the needs of the child (Quinnell & Bow, 2001). Before accepting a referral the evaluator must determine what is the question being asked and whether it is possible to provide an opinion on that question. The need for a custody evaluation itself indicates a breakdown in the parents’ capacity to resolve differences for the benefit of the child. During this process, it is inevitable that all of the family members are likely to be under a tremendous amount of stress and functioning below their optimal level. The evaluator should acknowledge the level of anxiety and stress that the parents will be under. The first meeting should allow the evaluator and the parent to become better acquainted. The evaluator should make attempts to meet with all possible persons to obtain collateral data. Providing each person with sufficient time to provide explanations is necessary, while at the same time the evaluator should keep in mind the range and specific information needed to address the issues at hand. This specifically should be kept in mind when those interviewed are avoiding specific topics. Inconsistencies should be explored further. When questions arise regarding the parents’ cognitive capacities or issues of significant character pathology, psychological testing may be helpful. However, testing should not be used unless it is likely to help answer specific questions to custody issues. The APA (1994) guidelines caution against overinterpreting or inappropriately interpreting assessment data in the custody evaluation process, and a recent study of psychological tests used by psychologists in custody evaluations shows that the use of most tests is trending downward. For the most part, current practice has eliminated reliance on IQ tests or a single battery of tests. Parent rating scales such as the Child Behavior Checklist or Conners’ Parent Rating Scale may be useful. Projective instruments
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continue to be used despite the lack of data and empirical support (Quinnell & Bow, 2001). Parents should be interviewed first, then the children. It is important to see each child with and without each parent and with and without siblings. Valuable information can be obtained from these observations. Because attitudes may change depending on which parent appears with the child, and parents may subtly or overtly encourage the child to give information that supports their position, the child should be interviewed at least twice with each parent. Skills in interviewing children, thorough knowledge of child development, and observation techniques are necessary. Some pitfalls include using language that is not shared with the child, failure to create an atmosphere in which the child feels able to speak freely, mistaking ordinary reactions of the child to the stress of the interview as psychopathology, failure to note important actions by the child because of ignorance of their significance, and inadvertently leading the child to report what he or she believes the interviewer wants to hear. To avoid these common mistakes and others, it is important that the evaluator is well trained and experienced in interviewing children and families. EVALUATION
OF THE
PARENTS
A meeting with each parent individually is necessary for a complete evaluation. The evaluator must explore with each parent a full history of the marriage, the nature of conflicts, and what led to the divorce. Next, evaluations should ask for a specific description of each parent’s relationship with the child, the parent’s understanding of the needs of the child, and what the plans are if custody is not awarded. Parents must be allotted time to respond to any specifics regarding allegations made by or to the parent being interviewed. Each parent’s attitude with regard to the child’s development and maturation should be explored. One should look to the specific areas outlined earlier in the chapter for guidance: cognition, attachment, outside resources, fantasy, and moral development. During the evaluation, one should attempt to explore and observe each parent’s contributions to various aspects of the child’s life. The parents should be evaluated for their vulnerabilities as well. Parents who themselves have difficulty with their own separation may have problems in their responsiveness to and support of the child. Vulnerable parents may look to the child to regulate their self-esteem or may project onto the child their feelings toward their former spouse (Roseby & Johnston, 1998). The following are topics that often become sources of contention and should be explored and considered carefully.
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Gender The impact of the sex of the custodial parent on children’s well-being has been a source of heated debate. According to Hetherington (2005), there is little evidence to support the superiority of mother custody, father custody, or joint custody. Boys and girls develop well in any type of custodial arrangement with an involved and authoritative parent. The lack of literature addressing these issues makes it difficult to differentiate between scientifically reliable findings, informed theorizing, and personal political views. The demonstrable untoward impact of growing up in a single-parent household (McLanahan, 1994) is easily confused with the impact of being raised without a father because the vast majority of single parents are women. The substantial literature showing the damaging impact of father absence on children (Popenoe, 1996) needs careful assessment when determining what portion of the impact reflects sex-specific effects and what component is due specifically to single parenting. The widespread assumption that mothers are more appropriate custodial parents unless shown to be defective in some way places men who want to be involved with their children at a substantial disadvantage in custody disputes (Leving, 1997). The same set of assumptions may be used against women who in some way do not fit the stereotype of ‘‘good mothers.’’ A former husband’s willingness to perform traditional maternal activities may weigh heavily in the father’s favor, whereas similar activities by the mother are seen as merely her appropriate role (Chesler, 1991). The assumption that hard-working fathers will be absent from their children’s lives is not supported by the research. In fact, research shows that fathers working part time spend significantly less time with their children than fathers employed full time (Le Bourdais, Juby, & Marcil-Gratton, 2002). In addition, several studies have shown that bonding with fathers actually improves after separation (Le Bourdais, Juby, & Marcil-Gratton, 2002). The child’s age at separation may be a predictor of the level of contact: In one study, young children had a greater risk of losing contact with their father (Le Bourdais, Juby, & Marcil-Gratton, 2002). Custodial fathers tend to have fewer problems with discipline and report less child-rearing stress. Adolescent girls of divorced mothers are noted to have conflictual relationships with their mother (Hetherington, 2005). On the other hand, custodial fathers have been found to communicate less and be less competent in monitoring, which is associated with more delinquent activities in adolescence. There is some indication that courts are moving in the direction of assessing parental competence and making fewer assumptions that qualities such as interpersonal sensitivity and leadership are associated with one sex or the other (Brems, Shook, Sturgill, et al., 1995). Regardless of the custodial placement, one must consider the following: It is often argued that during certain developmentally critical periods it is important to have same-sex parental role modeling. It is often considered that when learning gender roles the child
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should maintain close contact with the parent of the same sex to promote identification with the parent. Indeed, some boys deprived of a close relationship with a paternal figure exhibit intense longing for a close relationship with a man (J. Herzog, 1982; J. M. Herzog, 1980). However, the opposite-sex parent’s role in promoting clear gender identity is also of great importance (Ross, 1979). Some empirical data suggest that school-age boys do better in the custody of their father (Clarke-Stewart & Hayward, 1996). These data do not support the idea that girls do better with their mother. Common expectations that mothers and fathers will differ in their commitment to certain aspects of development are not borne out by systematic research. Parents of both sexes become increasingly equally committed to homework and school achievement as their children grow older (Roberts, Block, & Block, 1984). Fathers and mothers have been found to be alike in their attitudes to competitiveness, autonomous achievement, cognitive competence, and play activities (Bronstein, 1984). One must be careful to avoid putting too much weight on attachment in custody evaluations. In one study, White, Brinkerhoff, and Booth (1985) demonstrated that attachment to both parents, particularly fathers, is lower if children perceive that their parents have an unhappy marriage. Divorce and separation may not be the cause of low father-child attachment, but rather low attachment may precede actual divorce. The father-child relationship suffers more than the mother-child relationship. This may be because the children have sided with the mother (White et al., 1985). In the same study, in noncustodial situations child-parent attachment was lower for both mothers and fathers, but because mothers started out in a more advantageous position, children reported more attachment to noncustodial mothers than noncustodial fathers. White et al. concluded that marital disruption does not weaken a child’s attachment to the custodial parent regardless of the parent’s sex. Remarriage did not seem to reduce the children’s attachment to custodial mothers. On the other hand, children demonstrated greater attachment to their stepfather than to their noncustodial natural father except in situations where stepfathers brought their own children into the new marriage (White et al., 1985). The decision to place the children with the mother versus the father must be made on an individual basis. As we have just discussed, there is no hard and fast rule or clear evidence from the research as to what is right. For a particular child, the opportunity to have a closer relationship with a parent of a particular sex may prove important. But no generalizations from the literature or otherwise can be made about the impact of the sex of the custodial parent on the establishment of gender identity and the overall development of the child. Children with specific qualities such as temperament, talents, and interests that match one parent’s better than the other make the placement decision with that parent stronger.
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Community As mentioned earlier, a child’s community often becomes an extended family. As children move into middle childhood and adolescence the world beyond the immediate family contributes to their psychological well-being and development. Especially in the light of parental separation, resources such as school, athletic activities, afterschool activities, peer friends, and family friends become increasingly important. Therefore, in custody and visitation evaluations, parents should be asked how they support these outside resources. One should evaluate how various custody and visitation arrangements will affect the child’s ability to continue to have these supports. A note of caution: As adolescents disengage more from the family, they should be monitored closely. Adolescents who become involved in delinquent peer groups are at risk for antisocial behavior. Disengagement occurs in one-third of adolescents. It is not always a damaging experience; when it involves a caring adult it is likely to be a more positive experience, providing stability in the conflictual environment (Hetherington, 2005). Education Parents’ attitude and style with regard to education should also be explored, as these contribute to the child’s satisfaction with school. Collins, Harris, and Sussman (1995) note that a history of shared work and play between parent and child, as opposed to interactions between a controlling parent and a resistant child, predict successful entry into school. Children do better in school when the structure of authority at school and at home is similar and when that structure is authoritative. Parental expectations and involvement are predictive of school performance. Moral Development According to Kohlberg and Kramer (1969), moral development is a continual process of matching a moral view to one’s experience in a social world. The child lives in a world in which the choices he or she must make are circumscribed. Children’s moral ideology is not a direct reflection of their environment; they construct a moral ideology primarily to fit and make sense of the world. It gives them a rational for accepting the patterns at home and in the peer group. Parents’ roles in the development of personal regulation and moral values have been extensively studied (Collins et al., 1995). The recurring finding from these studies is that the transformation of effective controls into internal values is the result of child-centered discipline. The intent of discipline is the child’s development. Techniques are selected from observing the child’s responses to discipline, which is communicated by a generally accepting attitude toward the child (Maccoby, 1984). In age-appropriate development, preschoolers tend to regard a parent’s authority as coming from the power to reward or punish. In middle childhood, children increasingly believe that authority derives first from all the things parents do for children and then
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from the parents’ great knowledge (Braine, Pomerantz, Lorber, & Krantz, 1991; Maccoby, 1984). Contrary to less contemporary beliefs, the environment has a great deal of impact on moral development. Parents and peers both play a role in moral development. Immature ego functioning can interfere with this process and prohibit the structure that a child needs to develop morally (Walker, Hennig, & Krettenauer, 2000). Effective control in middle childhood occurs when parents monitor the child and fit controls to what is observed rather than generating attempts at control from the parents’ own needs (Maccoby & Martin, 1983). Ineffective parental monitoring has been shown to be associated with antisocial behavior in middle childhood and adolescence (Tolan & Loeber, 1993). Thus, when evaluating parental capacity, the particular techniques of discipline are not as important as the extent to which the child’s responses to discipline are monitored by the parent and the technique is consistently regulated by those responses to an effort to aid the child’s development as opposed to filling parental needs. EVALUATION
OF THE
CHILD
It is likely that during the course of custody evaluation the child may have special needs. This is often due to the intense nature of the conflict between the parents that led to the need for a custody case. Because the evaluator conducts a full psychiatric evaluation, it is important to separate acute and situational symptoms from chronic psychological problems. At the very least, it is expected that the child will be anxious. Typical reactive states may be seen, including regressive behavior, difficulty separating from a parent, and bedwetting in younger children. Older children may have behavior problems, anxiety, depressive symptoms, declining school performance, and oppositional behavior. Children in the latency stage may have inner fragmentation that may manifest in troubled behaviors such as depression, aggression, or physical symptoms or even contradictory behavior, such as being very compliant with one parent and difficult to manage with the other (Roseby & Johnston, 1998). Adolescents from divorced families exhibit higher levels of externalizing and internalizing behaviors compared to those from nondivorced families (Hetherington, 2005). Once again the evaluator must determine what behavior is reactive to the situation and what is psychopathological and chronic. It is essential that the child’s vulnerability be recognized and that it is clearly differentiated from the parents’ biased perspective and personal agenda (Roseby & Johnston, 1998). In general each child older than 3 should be interviewed separately. Two interview meetings with each child are customary, one with each parent. Each child should receive a full psychiatric evaluation. One should consider seeing children in all contexts, that is, brought in by each parent, and also evaluating
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them with siblings to observe interactions and to decrease the anxiety associated with such an evaluation. The interview with each child should explore the child’s view of the nature of the marriage and divorce and what he or she thinks may happen. Some children ask, ‘‘Why do I need to be evaluated?’’ Sattler (1997) advises telling the parents to explain to the child that the evaluator is someone who will meet with each parent as well to assist each in becoming a better parent. Some simple things that the evaluator sets in place may facilitate a wealth of information; for example, observing the child and parent interacting uninterrupted is important. Providing appropriate toys, drawing materials, and atmosphere is likely to facilitate the child’s comfort level and ability to communicate. One can also request that children bring in their own toys or play materials, as this often facilitates comfort and serves as transitional objects when interviewed alone. At the preschool and early elementary school age, family drawings are often helpful in assessing children’s perspective of themselves as well as their family. While observing the drawing the evaluator can take note of developmental milestones such as fine motor skills and assess any developmental concerns. Experts vary in regard to what should be asked during this process. It is often helpful to watch the child draw and ask questions afterward; some feel that an open-ended interview is appropriate. Other experts feel that children should not be asked anything about their current living situation or thoughts of where they may want to live. Nevertheless, it is important to explore children’s feelings about their primary caregiver. For school-age through middle school–age children it is recommended that evaluators briefly explain the aspects of the divorce in somewhat greater detail. Each parent should express his or her care and love for the child in conjunction with explaining that they are unable to come to agreement in regard to the child and that the evaluator will assist with this process. It is important for the parents not to express their opinions concerning the other parent, as this leads to much anxiety. However, the parents should allow the child to express any fears or thoughts regarding the divorce. In the case of a child with an existing and chronic psychiatric illness, the evaluator must explore this issue in a caring and sensitive way. It is not appropriate to assume that the disturbed child’s psychiatric issues result from some failure of parenting. It is appropriate, however, to explore whether the problematic parenting contributes to the child’s illness. In the context of a custody evaluation, it is important to assess evidence for such contributions cautiously. Hypotheses that may be useful for clinical exploration should not be confused with the reliable information on which courts can base decisions. In addition, even if a parent has contributed to a child’s disturbance, the question remains whether that contribution is ongoing and whether anything
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that the court can order is likely to have an impact on that contribution. When considering ordering treatment or rehabilitation of a parent who contributes to a child’s disturbance, it is important to carefully address the question of whether the treatment will achieve its desired impact. One must also have appropriate respect for the limitations of legal interventions to change wellestablished behavior patterns. Perhaps more important is exploring the parents’ insight into the illness and willingness to support psychiatric treatment. This should also be applied to children with physical illnesses. Parental denial and concern about stigma are likely to interfere with the child’s receiving adequate treatment and parental support. VISITATION Recommendations regarding visitation depend on the weight the evaluator gives to sometimes opposing factors. It is essential that the child has at least one parent who provides a stable figure for attachment. Sometimes, for very specific reasons, this is not possible, and a split parenting schedule needs to be recommended. It is also in the child’s best interest that conflicts between the parents be minimized. Visitation schedules should be designed with this in mind. It is important for the child to maintain as strong a relationship as possible with the noncustodial parent and have arrangements designed to promote such a relationship (Ackerman, 1998). Specific studies showing the advantages of visits are not very robust. According to a Canadian national study, 80% of children under 12 were placed with their mother (Juby, Le Bourdais, & Marcil-Gratton, 2005); therefore most discussion of visitation is referring to the father. Most studies address the absent father or focus on the absence of the noncustodial parent. It seems as though at times there is a plea to involve the noncustodial parent, as shown by low rates of visitation across most studies. For example, a longitudinal Canadian national study demonstrated that about 35.8% of children 6 to 11 years old visited weekly with their noncustodial father and 7.7% never visited. Visitation is also likely to drop as time goes on (Marcil-Gratton & Le Bourdais, 1999). On the other hand, if caretaking by the custodial parent is significantly disrupted by visitation so that a child cannot develop or adhere to an ordinary routine, the child ultimately suffers. In high-conflict divorce, the transfer of the child and conflict over many aspects of visitation become opportunities for ongoing warfare, which ultimately harms the child. Hetherington (2005) reports that following divorce, contact with the noncustodial parent declines rapidly. Decreased paternal involvement is associated with residential distance, low socioeconomic status, and parental remarriage. Noncustodial mothers are more likely than noncustodial fathers to maintain contact.
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It is also argued among experts that there is a correlation between visitation and child support. There is some evidence that the frequency of contact with the noncustodial parent is increased with private rather than court-ordered child support agreements (Marcil-Gratton & Le Bourdais, 1999). It was long thought that the fathers’ continued financial support was improved by visitation, and for this reason such visits were promoted. But careful analysis of available data failed to support this result (Veum, 1993). Clearly, experts and evidence remain in conflict regarding whether paternal support is enhanced by increased visitation. Nevertheless, visitation is an important element in custody arrangements because often the child and custodial parent, usually the mother, are at higher risk for economic hardship. Regular visitation is thought to encourage the noncustodial parent to pay child support, which in turn will provide a cushion from economic hardship. Hetherington (2005) found that when the child is a boy and there is low-conflict parental contact, child support is likely to be maintained. One study showed that longer visits promoted children’s self-esteem, but more frequent visits increased interparental conflict (Pagani-Kurtz, 1997). Too infrequent or too brief visits are likely to impair the child’s attachment and relationship with the noncustodial parent. Brief visits may also misidentify the noncustodial parent and invite holiday-like visits in which the parent desperately tries to get all ‘‘the good things’’ done in the brief time available. Especially when fathers are seen as visitors rather than as parents, their parental functioning is likely to deteriorate (M. K. Pruett & Pruett, 1998). Issacs (1988) demonstrated that the regularity of visits rather than their frequency or duration was the most important factor in the child’s adjustment. In a study of 520 British school-age children, Flouri (2006) demonstrated that the nonresident father’s involvement was related to his frequency of contact. In addition, frequency of contact was negatively associated with the child’s emotional symptoms. Fathers’ low frequency of contact was associated with emotional symptoms, but fathers’ involvement did not predict children’s difficulties or prosocial behavior. Wallerstein’s review of Furstenburg et al.’s National Survey of Children summarized interesting findings. Divorce was found to destroy the ongoing relationship between the children and the biological parent living outside of the house in the majority of families, with 23% of fathers having no contact with their children in the previous 5 years. Researchers concluded that noncustodial parents rarely took the role of disciplinarian; they were more like pals. The custodial parent was responsible for the child rearing, and coparenting was nonexistent. Researchers found that the results did not support the hypothesis that paternal contact benefits the child, as children who had not seen their father in 4 years appeared to be doing better than children who saw their father more frequently (Wallerstein, 1991). This is a single finding, however, and should not
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be extrapolated to all cases, as it is commonly believed that paternal participation often provides an abundance of benefits. The age of the child plays a role in this discussion. According to Juby et al. (2005), shared custody arrangements and even overnight stays may be disturbing for some very young children and may make it more difficult for fathers to develop the kind of relationship that will ensure involvement. However, the validity of the ‘‘tender years’’ doctrine is highly questionable. More frequent shorter visits may be more suitable, such as seeing the child for a few hours daily (Le Bourdais & Marcil-Gratton, 2002). Once again, each consideration should be made on a case-by-case basis with the child’s needs in mind. Each child differs in his or her capacity to maintain the mental representation of the absent parent. Experts are divided on the implication of these findings for visitations. In their groundbreaking work focused on the child’s needs rather than fairness to the parents, Goldstein, Freud, and Solnit (1979) gave visitation a very secondary role compared with the maintenance of a strong bond with the custodial parent (Goldstein, et al., 1979). Infrequent contact with the noncustodial parent has been strongly associated with low attachment to that parent (White, et al., 1985). In summary, the approach to evaluating visitation must be made with the same careful assessment that went into the custody evaluation. One must assess the individual child’s and noncustodial parent’s capacity to maintain a parent-child relationship on a given schedule. The impact of visitation schedules on the child’s well-being, relationship with the custodial parent, and ability to maintain consistency and success at school and in the community and all other aspects of the child’s life must be carefully assessed. In addition, the child’s ability to tolerate transition and change must be taken into account when evaluating visitation. CONCLUSION This chapter outlined the importance of focusing on the child and the child’s needs in custody evaluations. It is important to understand a child’s development, attachment, place in the community, interests, school achievement, and specific needs. It is important to understand each child’s relationship to each parent and the ability of each parent to foster development and fulfill parental roles. Any concerns regarding a parent’s ability to parent must be considered. The evaluator plays a nonclinical and nonpartisan role in understanding each component of the family. A full understanding of the reason the custody decision could not be made by the parents without legal intervention is necessary. Each parent and child should be interviewed separately; combinations of parent, child, and sibling interviews also provide a wealth of information. The evaluator should be trained to interview and
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evaluate children and be sensitive to the anxiety and stress the custody evaluation often brings. Finally, decisions can be influenced by our current literature, but ultimately decisions should be made on a case-by-case basis with the child’s best interest in mind.
REFERENCES Abrams, S. (1984). Fantasy and reality in the Oedipal phase: A conceptual overview. Psychoanalytic Study of the Child, 39, 83–100. Ackerman, M. K. A. (1998). Psychological experts in divorce actions. New York: Aspen. American Academy of Child and Adolescent Psychiatry. (1997). Practice parameters for child custody evaluations. Washington, DC: Author. American Psychological Association. (1994). Guidelines for child custody evaluations in a divorce proceeding. American Psychologist, 49, 677–680. Bettelheim, B. (1976). The uses of enchantment. New York: Knopf. Braine, L., Pomerantz, E., Lorber, D., & Krantz, D. (1991). Conflicts with authority: Children’s moral socialization. Developmental Psychology, 27, 829–840. Brems, C. C. K., Shook, C., Sturgill, S., & Cannava, P. (1995). Assessment of fairness in child custody decisions. Child Abuse and Neglect, 19, 345–353. Bronstein, P. (1984). Differences in mothers’ and fathers’ behaviors toward children: A cross cultural comparison. Developmental Psychology, 20, 995–1003. Campbell, A., Sapochnik, M., & Muncer, S. (1997). Sex differences in aggression: Does social representation mediate form of aggression? British Journal of Social Psychology, 36(2): 161–171. Campbell, J., & Levandowski, L. (1997). Mental and physical health effects of intimate violence on women and children. Psychiatric Clinics of North America, 20, 353–374. Chesler, P. (1991). Mothers on trial: The custodial vulnerability of women. Feminism and Psychology, 1, 409–425. Chess, S. T. A. (1984). Origins and evolution of behavior disorder from infancy to early adult life. New York: Brunner/Mazel. Chess, S. T. A. (2002). Temperament and its clinical applications (3rd ed.). Philadelphia: Lippincott Williams & Wilkins. Clarke-Stewart, K., & Hayward, C. (1996). Advantages of father custody and contact for the psychological well-being of school-aged children. Journal of Applied Developmental Psychology, 17, 239–270. Collins, W., Harris, M., & Sussman, A. (1995). Parenting during middle childhood. Vol. 1. Mahwah, NJ: Erlbaum. Dunne, J. H. M. (1994). The parental alienation syndrome: An analysis of sixteen selected cases. Journal of Divorce and Remarriage, 21, 21–38. Faller, K. (1998). The parental alienation syndrome: What is it and what data support it? Child Maltreatment, 3, 100–115. Flouri, E. (2006). Non-resident fathers’ relationships with their secondary school age children: Determinants and children’s mental health outcomes. Journal of Adolescent Health, 29, 525–538.
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Fraiberg, S. (1965). The magic years. New York: Scribner. Freud, A. (1966). The ego and the mechanisms of defense (Rev. ed.). New York: International University Press. Freud, S. (1961). The future of an illusion. In J. Strachey (Ed. & Trans.), The standard edition of the complete psychological works of Sigmund Freud (Vol. 21, pp. 1–56). London: Hogarth Press. (Original work published in 1927) Galatzer-Levy, R. C. B. (1993). The essential other: A developmental psychology of the self. New York: Basic Books. Gardner, R. (1989). Family evaluation in child custody mediation, arbitration, and litigation (2nd ed.). Cresskill: Creative Therapists. Gilligan, C. A. J. (1988). Two moral orientations: Gender differences and similarities. Merrill-Palmer Quarterly, 34, 233–237. Goldstein, J., Freud, A., & Solnit, A. (1979). Before the best interest of the child. New York: Free Press. Goldzband, M. G. (2000). All God’s children: Religion, divorce, and child custody. Journal of the American Academy of Psychiatry and the Law, 28, 408–423. Gruber, H., & Voneche, J. (1976) The Essential Piaget. New York: Basic Books. Herman, S. (1992). Child custody evaluations. Baltimore: Williams & Wilkins. Herman, S. (1997). Practice parameters for child custody evaluation. Journal of the American Academy of Child and Adolescent Psychiatry, 30 (Suppl. 10), S57– S68. Herzog, J. (1982). On father hunger: The father’s role in the modulation of aggressive drive and fantasy. Boston: Little, Brown. Herzog, J. M. (1980). Sleep disturbance and father hunger in 18–28 month old boys: The Erlkonig syndrome. Psychoanalytic Study of the Child, 35, 219–233. Hetherington, E. M. (2005). Divorce and the adjustment of children. Pediatric Review, 26, 163–169. Hock, R. R. (2002). Forty studies that changed psychology: Explorations into the history of psychological research. In L. Kohlberg (Ed.), The development of children’s orientations toward a moral order: Sequence in the development of moral thought (Vol. 6, pp. 11–33). Upper Saddle River, NJ: Prentice-Hall. Isaacs, M. (1988). The visitation schedule and child adjustment: A three year study. Family Process, 27, 251–256. Jaffari-Bimmel, N., Juffer, F., van Ijzendoorn, M. H., Bakermans-Kranenburg, M. J., & Mooijaart, A. (2006). Social development from infancy to adolescence: Longitudinal and concurrent factors in an adoption sample. Developmental Psychology, 42, 1143–1153. Juby, H., Le Bourdais, C., & Marcil-Gratton, N. (2005). Sharing Roles, Sharing Custody? Couples’ Characteristics and Children’s Living Arrangements at Separation. Journal of Marriage and Family, 67, 157–172. Kanner, L. (1973). Childhood psychosis. Washington, DC: Winston & Sons. Kilpatrick, K. W. L. (1997). Post-traumatic stress disorder in child witnesses to domestic violence. American Journal of Orthopsychiatry, 67, 639–644. King, V. (1994). Nonresident father involvement and child well-being: Can dads make a difference? Journal of Family Issues, 15, 78–96.
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Kohlberg, L. (1963). The development of children’s orientations toward a moral order: Pt. I. Sequence in the development of moral thought. Vita Humana Internationale Zeitschrift fur Lebensalterforschung, 6, 11–33. Kohlberg, L. (1964). Development of moral character and moral ideology. In H. Hoffman & L. Hoffman (Eds.), Review of child development research. Vol. 1 (pp. 383–432). New York: Russell-Sage. Kohlberg, L. (1984). The psychology of moral development. San Francisco: Harper & Row. Kohlberg, L., & Kramer, R. (1969). Continuities and discontinuities in childhood and adult moral development. Human Development, 12, 93–120. Kohut, H. (1971). The analysis of the self. New York: International Universities Press. Larson, R. W. R. M., Moneta, G., Holmbeck, G., & Duckett, E. (1996). Changes in adolescents’ daily interactions with their families from ages 10 to 18: Disengagement and transformation. Developmental Psychology, 32, 744–754. Leavy, S. (1985). Demythologizing Oedipus. Psychoanalytic Quarterly 54, 444–454. Le Bourdais, C. Juby H., & Marcil-Gratton, N. (2002). Keeping in touch with children after separation: The point of view of fathers. Canadian Journal of Community Mental Health, Special Supplement, 4, 109–130. Leving, J. D. K. (1997). Fathers’ rights. New York: Basic Books. Lewis, M. E. (1996). Child and adolescent psychiatry: A comprehensive textbook (2nd ed.). Baltimore: Williams & Wilkins. Maccoby, E. (1984). Middle childhood in the context of family. Washington, DC: National Academy of Sciences Press. Maccoby, E., & Martin, J. (1983). Socialization in the context of the family: Parent-child interaction, Vol. 4. New York: Wiley. Marcil-Gratton, N., & Le Bourdais, C. (1999). Custody, access and child support: Findings from the National Longitudinal Survey of Children and Youth. Ottawa, Canada: Child Support Team, Department of Justice Canada Research Report CSR-1999-3E. McLanahan, S. S. G. (1994). Growing up with a single parent. Cambridge, MA: Harvard University Press. Nurcombe, B., & Parlett, D. (1994). Child mental health and the law. New York: Free Press. Pagani-Kurtz, L. D. J. (1997). Access by noncustodial parents: Effects upon children’s postdivorce coping resources. Journal of Divorce and Remarriage, 27, 43–55. Pearson, D., Rouse, H., Doswell, S., Ainsworth, C., Dawson, O., Simms, K., et al. (2001). Prevalence of imaginary companions in a normal child population. Child: Care, Health, and Development, 27(1), 13–22. Petersen, A. C., & Leffert, N. (1995). Developmental issues influencing guidelines for adolescent health research: A review. Journal of Adolescent Health, 17, 298– 305. Piaget, J. (1929). The child’s conception of the world. Patternson, NJ: Littlefield, Adams. Popenoe, D. (1996). Life without father. New York: Free Press. Pruett, K. D. (1985). Oedipal configurations in young father-raised children. Psychoanal Study Child, 40, 435–456. Pruett, M. K., & Pruett, K. D. (1998). Fathers, divorce, and their children. Child and Adolescent Psychiatric Clinics of North America, 7(8), 389–407.
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Quinnell, F. A., & Bow, J. N. (2001). Psychological tests used in child custody evaluations. Behavioral Sciences and the Law, 19, 491–501. Rand, D. (1997a). The spectrum of parental alienation syndrome. American Journal of Forensic Psychology, 15 (Pt. I), 23–52. Rand, D. (1997b). The spectrum of parental alienation syndrome. American Journal of Forensic Psychology, 15 (Pt. II), 39–92. Rizzuto, A. (1979). The birth of the living God: A psychoanalytic study. Chicago: University of Chicago Press. Roberts, G., Block, J., & Block, J. (1984). Continuity and change in parents’ childrearing. Child Development, 5, 586–591. Roseby, V., & Johnston, J. R. (1998). Children of Armageddon: Common developmental threats in high-conflict divorcing families. Child and Adolescent Psychiatric Clinics of North America, 7(6), 295–309. Ross, J. M. (1979). Fathering: A review of some psychoanalytic contributions on paternity. International Journal of Psychoanalysis, 60, 317–327. Russell, G., & Russell, A. (1987). Mother-child and father-child relationships in middle childhood. Child Development, 58, 1573–1585. Sadock, B. J., & Sadock, V. A. (2003). Kaplan and Sadock’s synopsis of psychiatry (9th ed.). Philadelphia: Lippincott Williams & Wilkins. Sameroff, A., & Emde, R. (1989). Relationship disturbances in early childhood. New York: Basic Books. Sattler, J. (1997). Clinical and forensic interviewing of children and families. San Diego, CA: Sattler. Shapiro, T., & Perry, R. (1976). Latency revisited: The age 7 plus or minus 1. Psychoanalytic Study of the Child, 31, 79–105. Strasburger, L., Gutheir, T., & Brodsky, A. (1997). On wearing two hats: Role conflict in serving both as psychotherapist and expert witness. American Journal of Psychiatry, 154, 448–456. Taylor, M., Carlson, S. M., Maring, B. L., Gerow, L., & Charley, C. M. (2004). The characteristics and correlates of fantasy in school-age children: Imaginary companions, impersonation, and social understanding. Developmental Psychology, 40, 1173–1187. Tolan, P., & Loeber, R. (1993). Antisocial behavior. New York: Wiley. Veum, J. (1993). The relationship between child support and visitation: Evidence from longitudinal data. Social Science Research, 22, 229–244. Walker, L. J., Hennig, K. H., & Krettenauer, T. (2000). Parent and peer contexts for children’s moral reasoning development. Child Development, 71, 1033–1048. Wallerstein, J. S. (1991). The long-term effects of divorce on children: A review. Journal of the American Academy of Child and Adolescent Psychiatry, 30, 349–360. Werman, D. (1980). Effects of family constellation and dynamics on the form of the Oedipus complex. International Journal of Psychoanalysis, 61, 505–512. White, L. K., Brinkerhoff, D. B., & Booth A. (1985). The effect of marital disruption on the child’s attachment to parents. Journal of Family Issues, 6, 5–22. Wolff, S. (2002). Moral development (3rd ed.). Philadelphia: Lippincott Williams & Wilkins.
CHAPTER 9
Custody Evaluations of Adolescents SARGHI SHARMA and CHRISTOPHER THOMAS
Adolescence is a tough time for parent and child alike. It is a time between: between childhood and maturity, between parental protection and personal responsibility, between life stage-managed by grown-ups and life privately held. —Anna Quindlen, ‘‘Parental Rites,’’ Thinking Out Loud column (1993)
I
T WOULD BE natural to assume that because of adolescents’ greater cognitive and verbal abilities, social development and autonomy, and shorter length of further legal dependence, assessment of adolescent custody would be simpler and more straightforward than for a younger child. However, these features do not necessarily facilitate the process; in fact, they present a different set of challenges for the mental health professional evaluating the developmental needs of the adolescent and the capacities of parents to meet them. Perhaps the greatest difficulty is that the determination of custody occurs when one of the central tasks of adolescent development is renegotiating parental relationships in the transition from child to adult. It is therefore necessary that the psychiatrist conducting an evaluation involving an adolescent be aware of the particular developmental needs and difficulties that divorce and custody determination create at this stage in the adolescent’s life.
ADOLESCENT DEVELOPMENT AND DIVORCE Adolescence represents a complicated interplay of dramatic biological, psychological, and sociological changes (King, 1996). Not all of these changes occur at once, nor do they have a fixed onset, which can vary greatly from individual to individual. The psychiatrist must not rely on chronological age alone in assessing developmental status, although the law of necessity has 241
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established certain legal rights by age, such as the age when a minor’s opinion on custody must be considered. Adolescence is usually viewed as starting with the onset of puberty, the hormonally mediated changes resulting in physical growth and development of primary and secondary sexual characteristics that lead to reproductive capacity. Although these hormonal changes may begin as early as age 6, the usual physical characteristics associated with the onset of puberty occur at age 9 to 11 for girls and 11 to 13 for boys. Families may even directly affect the timing of puberty. Researchers found an earlier and more rapid onset of adolescence for children living in conflicted and unsupportive homes (Graber, Brooks-Gunn, & Warren, 1995; Steinberg & Morris, 2001), which is very relevant to custody evaluations. Along with sexual and physical maturation, adolescence is characterized by changes in cognitive abilities (Keating, 1990). Adolescents develop a greater capacity to incorporate and manipulate information coupled with an ability to consider other points of view and abstract concepts (Selman, 1980). Although there is an increase in their ability to take into account the thoughts and feelings of others, adolescents are also less likely to accept as correct the thoughts and opinions of authority figures solely because they said so. In addition, adolescents’ greater cognitive ability does not mean that they are necessarily going to make sound decisions in real life, as they still lack experience with the consequences of adult choices and tend to have a sense of invulnerability. Their new abilities and opportunities lead to potential risk taking as they experiment with adult life (Ernst, Pine, & Hardin, 2006). There is some evidence that parental separation and divorce can contribute to increased risk-taking behavior in adolescents (Kirby, 2002). Despite these enormous developmental changes and contrary to popular opinion, it is fairly well established that adolescence is not a stage of inevitable turmoil and conflict, although it is a period when stress is more likely to occur than at any other stage of life (Arnett, 1999). In addition, studies of adolescent attitudes find that most consider their relationships with their parents to be stable and supportive, and they continue to rely primarily on their parents for assistance and guidance (Offer & Schonert-Reichl, 1992). NORMAL ADOLESCENT DEVELOPMENTAL TASKS RELATED
TO
FAMILY RELATIONSHIPS
Although adult individuation and increasing autonomy are central themes to adolescent development, these cannot be understood without taking into account the context in which they occur, especially the family context (Lerner & Galambos, 1998). As adolescents develop increasing freedom and interests outside the home, they are less likely to spend time with their family (Csikszentmihalyi & Larson, 1984). Adolescents from divorced families are even more likely to disengage from their family (Hetherington, 1993). Some of
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the central conflicts between parents and their adolescent offspring are over curfews, peer associations, and activities without adult supervision. The development of adult sexual capacity and experimentation with sexual behaviors also raise concerns for parents. Parents may find these developments particularly difficult as they confront their own issues of intimacy and sexuality in working through separation and divorce (Hetherington, 1993). Boundaries may become blurred as parents begin to date again and find new sexual partners. Normative adolescent desire for independence may result in confrontations over minor things that for the adolescent represent serious issues of respect and autonomy. Confrontations with parental authority can become complicated if rules are inconsistent between separate households. Parents may try to reinforce their relationship with their teenager or reassert their authority with their ex-spouse in conflicts over rules and limits. Overall, divorced parents are less likely than nondivorced parents to be authoritative in their role with their adolescents (Hetherington, 1993). Research looking at offspring reaction to these conflicts between caretakers has found that higher conflict between divorced parents and with new partners resulted in troubled relationships between parent and child and adjustment problems for the child, especially if the child was directly involved in the conflict (Dunn, O’Connor, & Cheng, 2005; Forehand et al., 1991). In both intact and divorced families, parents who are able to maintain firm, consistent, and reasonable limits coupled with support and understanding tend to do better in handling these struggles. Having a good healthy relationship with one parent or caregiver or the support of siblings and peers can protect an adolescent from the effects of parental conflict (Emery, 1999). As they seek out adult roles, adolescents in divorced families may become partner surrogates for a parent or take over parenting duties for younger siblings. This not only distorts and interferes with normal adolescent development, but it may also lead to further conflict when parents remarry or reassert their previous role (Hetherington, 1999). However, some adolescents are able to confront the challenges of divorce and show an amazing capacity to grow and mature in response to the family crisis (Weiss, 1979). ADOLESCENT ATTITUDES
ABOUT
MARRIAGE
AND
DIVORCE
A recent study of adolescents’ attitudes toward marriage (Martin, Specter, Martin, & Martin, 2003) found that most expressed negative views of divorce (51%) and considered marriage a lifelong commitment (82.5%), even though the majority (55.4%) of the high school students interviewed lived in separated or divorced households. The study also found that most adolescents felt unprepared for marriage (57.4%) and that they would want to cohabit prior to deciding on marriage (48.7%), leading the authors to conclude that
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family disruption reduces the opportunity for adolescents to observe successful, long-term relationships, although their study did not compare attitudes of adolescents from intact and divorced families. Other studies found that adolescents from divorced families are more likely to have negative attitudes about romantic relationships than those from intact families. A report on 300 Italian adolescents found that those from divorced families display a higher level of distrust of others, are less likely to see marriage in their future, and show a greater fear of marriage (Giuliani, Iafrate, & Rosnati, 1998). A longitudinal study of 242 young adults found that those experiencing divorce in early adolescence felt less secure in their romantic relationships (Summers, Forehand, Armistead, & Tannenbaum, 1998). Experiencing divorce does not seem to influence adolescent perceptions of an ideal mate. A study of 179 Israeli adolescents found no significant differences between adolescents from intact and divorced families in the independence of their characteristics of perceived ideal mate and parents (Lazar & Guttmann, 2004). The different attitudes about marriage and relationships that adolescents do have appear to be the result of both their reaction to the experience of their parents’ divorce and the influence of their parents’ attitudes. A longitudinal study of mothers’ and their children’s attitudes found that experiencing divorce resulted in significantly more favorable views of premarital sex, cohabitation, and divorce (Axinn & Thornton, 1996). Divorce also resulted in more negative views of marriage, except when the mother remarried. This study also found that the mother’s attitudes about premarital sex, cohabitation, marriage, and divorce had an independent and significant direct positive effect on her offspring’s attitudes, leading the authors to conclude that parental attitudes are an important intervening mechanism linking parental relationship experiences to children’s attitudes. ADOLESCENT ADJUSTMENT FOLLOWING DIVORCE The impact of divorce on adolescent development and mental health is covered in detail in earlier chapters of this volume. Overall, research in the past decade has shown that the adjustment problems found in adolescents following divorce are in part due to their experiences within the family prior to the divorce and the quality of relationships and support they experience following the divorce (Hetherington & Stanley-Hagan, 1999; Kelly, 2000; Zimet & Jacob, 2001). A longitudinal study of 8,984 Norwegian adolescents found that divorce and parental distress contributed independently to adolescent distress, supporting the concept of ‘‘double exposure’’ (Størksen, Røysamb, Holmen, & Tambs, 2006). Results of studies examining the specificity of outcomes are mixed, but there is some evidence that the contribution of marital conflict to internalizing symptoms is increased in youth who
Preference 245
recently experienced their parents’ divorce (McMahon, Grant, Compas, Thurm, & Ey, 2003). Therefore, it is important to take into account these features as part of the custody evaluation with adolescents. Adolescents fare better with custodial parents who provide appropriate emotional support, adequate monitoring of activities, necessary discipline, and age-appropriate limits than with those who do not (Buchanan, Maccoby, & Dombusch, 1996). The influence of the noncustodial parent on adjustment and development diminishes over time (Thompson & Laible, 1999), although the absence of the noncustodial parent, usually the father, may be related to other effects. A longitudinal study of 1,758 Norwegian adolescents found that the effects of divorce associated with anxiety, depression, self-esteem, school problems, and subjective well-being were mediated by paternal absence (Størksen, Røysamb, Moum, & Tambs, 2005). ADOLESCENT DEVELOPMENTAL NEEDS TO BE ASSESSED The parameters of a custody evaluation involving an adolescent should follow the standard guidelines for all custody evaluations and include a thorough assessment of each parent and child in the family. Adolescents continue to have the same general needs as younger children, but cognitive, physical, sexual, and social development adds additional requirements that are heavily influenced by individual as well as environmental factors. Ultimately, adolescents require a placement that will offer the most stable arrangement with the fewest disruptions in academic and social issues, along with a consistently nurturing parent. The placement should provide a structure for appropriate adolescent development, balancing recognition of the growing autonomy of the adolescent with clear limits and expectations. As with younger children, the quality of attachments should be assessed along with how a proposed custody arrangement would influence these relationships. The adolescent’s description of his or her view of the family dynamics can be very helpful in this respect. Another factor to consider is the meaning the adolescent will attribute to the custody and visitation recommendations given his or her past caretaking experience and view of the family roles. The special academic, medical, or mental health needs of the adolescent, if any, should be elicited and clarified. PREFERENCE During an evaluation an adolescent may express a preference for living with one parent over the other, which may shift the focus of the evaluation and thus should be examined carefully. Some states require an inquiry into preference by the examiner or the court, and many judges give it considerable
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weight. The Uniform Marriage and Divorce Act considers the child’s wishes to be a determinant in the best interests analysis but does not indicate the weight to be given. There is also little research available to help determine if a child is competent to participate in the decision making, the procedure on how to elicit preference, or if directly asking for a preference may be psychologically harmful. Adolescents may feel that they are being forced to make a choice and may feel in a bind that they are picking one parent over the other; however, social psychology indicates that there are positive effects of being permitted to have some control over one’s fate (Melton, Petrila, Poythress, & Slobogin, 1997). When adolescents appear reluctant to state a preference, it might be helpful to explain that they are not being asked to make the final decision but that their opinion is important and will be considered by the court along with all the other information in deciding placement. It may also be useful to add that stating a preference does not mean that they love one parent less than the other or want nothing to do with that parent. Some questions to consider are why the adolescent is stating a preference, the specific reasons behind it, and if there has been pressure from a parent to state a preference. The adolescent’s emotional, social, and intellectual levels of development are important factors that can aid in understanding the expressed preference. The basis of the preference should be explored carefully and not taken at face value. Many times the reasons offered by the adolescent will be helpful in identifying and understanding developmental and family issues as well as how the adolescent sees them. The focus should also highlight how the decision would impact the relationship with the noncustodial parent. The parental assessment part of the preference issue involves the parents’ ability to support the adolescent’s decision and their rationale for their view either way. In most cases the circumstances of the adolescent and the family situation will matter as much as or more than simply the child’s age in using expressed preference in a custody evaluation. The adolescent should be able to articulate his or her reasons in a logical and consistent way for the examiner to give the preference nearly total weight. If ambivalence is detected, which may be the rule rather than the exception, the preference should still be given significant weight but tempered with the collateral information on the parent and adolescent dynamics. However, ultimately the collateral data would have to be overwhelming to warrant going against an adolescent’s reasonably stated preference (Gardner, 1989). A significant complicating factor occurs with the possibly of competing demands of younger siblings when making custody decisions based on an adolescent’s preference. Whereas the adolescent may have a strong basis for preference of one parent as custodial, the best interests of younger siblings
Parenting Assessment 247
may lie with the other parent. Separation of siblings is rarely recommended, except in extreme situations (Kaplan, Ade-Ridder, & Hennon, 1991). When siblings are involved, it must be kept in mind that the adolescent should not be expected to serve as a surrogate parent and assume caretaking for younger siblings. STATE LAW AFFECTING PREFERENCE The law regarding a child’s right to choose which parent to live with varies considerably by state and is not a clear standard in most states. Most state statutes set a minimum age, usually 12 years old, which coincides with adolescent cognitive development. A few statutes state that a child of 14 and older has an ‘‘absolute right’’ to choose the parent with whom to live, as long as the parent is fit (American Bar Association Division for Public Education, n.d.). Other states may require an inquiry into the child’s preference but with no clear application of the answer. Individual states have a variety of mechanisms that allow for eliciting preference, require the questions be proposed, or allow a formal affidavit from a child of a specific age to specify his or her preference directly to the court (American Bar Association Division for Public Education, n.d.). PARENTING ASSESSMENT The interviews with each parent should include the standard discussions of topics in any custody evaluation, including each parent’s view of the family structure, concerns regarding the other parent, caretaking responsibilities, work schedules, and view on the needs of the children in the family. Parenting styles that encourage verbal give and take, enforce rules as necessary, have clear expectations for mature behavior, and encourage independence are considered ideal and have been described as authoritative-reciprocal (Maccoby & Martin, 1983). The evaluation should include assessing styles of parenting and discipline and whether the parent’s style is conducive to the adolescent’s development and temperament. The parent’s ability to encourage and facilitate appropriate educational and social goals while having an ability to realistically appreciate the child’s strengths and weaknesses should also be explored in detail (Mrazek, Mrazek, & Klinnert, 1995). Topics of inquiry should include the parent’s view on adolescence and normal development and how the parent views the child’s development. A directed discussion related to the adolescent’s age and developmental struggles can help clarify a parent’s view of his or her child and the parent’s expectations. Parenting style, consistency in parenting style, and how real
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and hypothetical conflicts will be resolved with the adolescent are topics for discussion for assessment of parenting practices. In addition, developmental changes during adolescence require modifications in the parenting task, especially in terms of flexibility, responsivity, and supervisory responsibilities (Holmbeck, Paikoff, & Brooks-Gunn, 1995). The strength of each parent’s social supports should be addressed, as these could have a significant bearing on the dynamics between child and parent and on the parent’s postdivorce functioning. The parent’s ability to accept the child’s preference of who to live with should also be explored. Asking parents to provide examples of handling various issues of discipline, activities together, school, and peers can help illustrate their views and approaches to parenting. Each parent and child should be evaluated together in an unstructured interview to asses how they can work together and how responsive the parent can be toward the adolescent (Herman, 1997). The parents may also be interviewed together to asses how they interact regarding issues related to the children’s well-being. The extent to which each parent values involvement from the other and how the custodial parent can or will facilitate a positive relationship between the child and the noncustodial parent should always be explored. A parent’s physical or mental health limitations should be assessed in relation to the parenting task and may require collateral information or psychological testing. ADDRESSING PARENTING ISSUES CREATED BY DIVORCE Alterations in parenting style or responsiveness can occur as a result of the stress related to the marital breakdown. The lack of consistent responsive parenting as adolescents are attempting to create autonomy can result in a variety of psychological and behavioral problems. Especially during the time of divorce, the adolescent’s attempts to establish a more mature relationship with parents may go against the psychological needs of parents who turn to their children for support (Holmbeck et al., 1995). When this occurs, it requires further assessment to help resolve whether problems reflect transient situations that may be a part of the divorce process or represent chronic problems in the parent’s capacity to support the adolescent’s growing independence. The alignment of an adolescent with one parent and either ambivalence or anger toward the other parent can happen in varying degrees in normal divorces. The child’s alignment with one parent and the rejection of the other are terms that can be used to describe the child’s behavior or attitude toward the parents (Johnston, 2003). Although most adolescents have positive relationships with both parents, mild forms of alignment with one parent and mild rejection of the other are seen as relatively normal. There are many
Reopening Custody 249
variables involved and the affinities usually shift over time with changing developmental needs and situations. A more unusual situation is an extreme version of alignment and rejection. These situations need to be assessed in much more detail with respect to the parents’ characteristics, past and ongoing events, and the adolescent’s developmental stage. Alignment and rejection can at times be due to the conscious or subconscious acts of a parent; more important and less obviously, it can also be due to the inherent qualities of each parent as well as the adolescent’s cognitive and moral development (Johnston, 2003). Ultimately, the child’s preference to live with the aligned parent has significant weight and will not necessarily be against the child’s best interest even with evidence of intentional parental influence. REOPENING CUSTODY The task of reopening custody during adolescence deserves special attention. In about half the cases in which dual residence was the initial arrangement, a change in physical custody took place at some point, compared to one-fifth of children initially in maternal custody (Melton et al., 1997). The principal questions to be asked when reopening custody are the reason for the petition and who has presented it. The reasons for revisiting a custody decision should be fully explored prior to beginning the evaluation. Barring unusual circumstances, a change in the custody placement is difficult to consider. However, a significant number of cases will be revisited (Freed & Foster, 1974). Research shows that problems do not begin de novo in adolescence and most of the time have their root in earlier childhood. Adolescence may also be a time when expression of the difficulty with divorce is expressed by children when they start to deal with their own issues of peer relationships, sexuality, and the often competing realization of their parents’ sexuality. Evaluators must understand that emotional and behavior problems in adolescence not only are a product of the recent environment and stressors, but also reflect constitutional and developmental factors. In addition, many adolescent problems are a continuation of adjustment difficulties from childhood (Loeber, 1989). If at this time the custody issue is revisited due to the adolescent’s desire to reside with the previously noncustodial parent, the guidelines listed earlier should be reviewed to understand the reasons for the preference. Barring any identifiable problems with the noncustodial parent, that preference should be given considerable weight. In some states, children actually have the right at a specific age to petition the court directly for a change of custody (American Bar Association Division for Public Education, n.d.). To reiterate, the recommendation for petitions in change of custody should be based on the reasons for the request and the adolescent’s preference and ultimate best interests.
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CONCLUSION Custody evaluations involving adolescents continue to follow the basic principles of all custody determinations based on a thorough assessment of the parent-child relationship, parenting skills and resources, and developmental needs of the child. Adolescents continue to require parental involvement and support, with appropriate encouragement and limit setting, made all the more challenging by the growing independence and changing family relationships of normal adolescent development. The dramatic developmental changes in adolescence can be complicated by the changes in family structure brought on by divorce and require special consideration of parentchild relationships. The concept of expressed preference plays a more prominent role with this age group in a custody recommendation; however, the evaluator should keep in mind the dilemma it may pose to the child and that statements of preference must be explored fully. With all things being equal, the evidence clearly supports ongoing parental conflict as presenting the greatest short- and long-term risks to the adolescent. REFERENCES American Bar Association Division for Public Education. (n.d.). Deciding factors in awarding child custody. Retrieved January 25, 2007, http://www.abanet.org/ publiced/practical/custody_childpreference.html. Arnett, J. J. (1999). Adolescent storm and stress, reconsidered. American Psychologist, 54, 317–326. Axinn, W., & Thornton, A. (1996). The influence of parents’ marital dissolutions on children’s attitudes toward family formation. Demography, 33(1), 66–81. Buchanan, C. M., Maccoby, E. E., & Dombusch, S. M. (1996). Adolescents after divorce. Cambridge, MA: Harvard University Press. Csikszentmihalyi, M., & Larson, R. (1984). Being adolescent: Conflict and growth in the teenage years. New York: Basic Books. Dunn, J., O’Connor, T. G., & Cheng, H. (2005). Children’s responses to conflict between their different parents: Mothers, stepfathers, nonresident fathers, and nonresident stepmothers. Journal of Clinical Child and Adolescent Psychology, 34, 223–234. Emery, R. (1999). Marriage, divorce and children’s adjustment (2nd ed.). Thousand Oaks, CA: Sage. Ernst, M., Pine, D. S., & Hardin, M. (2006). Triadic model of the neurobiology of motivated behavior in adolescence. Psychological Medicine, 36, 299–312. Forehand, R., Wierson, M., Thomas, A. M., Fauber, R., Armistead, L., Kemptom, T., et al. (1991). A short-term longitudinal examination of young adolescent functioning following divorce: The role of family factors. Journal of Abnormal Child Psychology, 19, 97–111. Freed, D. J., & Foster, H. H. (1974). The shuffled child and divorce court. Trial, 10, 26–41.
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Gardner, R. A. (1989). Family evaluation in child custody mediation, arbitration, and litigation. Cresskill, NJ: Creative Therapeutics. Giuliani, C., Iafrate, R., & Rosnati, R. (1998). Peer-group and romantic relationships in adolescents from intact and separated families. Contemporary Family Therapy, 20(1), 93–105. Graber, J. A., Brooks-Gunn, J., & Warren, M. P. (1995). The antecedents of menarcheal age: Heredity, family environment, and stressful life events. Child Development, 66, 346–359. Herman, S. J. (1997, October). American Academy of Child Adolescents. Psychiatry, 36 (Suppl. 10). Hetherington, E. M. (1993). An overview of the Virginia Longitudinal Study of Divorce and Remarriage with a focus on early adolescence. Journal of Family Psychology, 7, 39–56. Hetherington, E. M. (1999). Family functioning and the adjustment of adolescent siblings in diverse types of families. Monographs of the Society for Research in Child Development, 64(4), 1–25. Hetherington, E. M., & Stanley-Hagan, M. (1999). The adjustment of children with divorced parents: A risk and resiliency perspective. Journal of Child Psychology and Psychiatry, 40, 129–140. Holmbeck, G., Paikoff, R., & Brooks-Gunn, J. (1995). Parenting adolescents. In M. Bornstein (Ed.), Handbook of parenting: Children and parenting (Vol. 1, pp. 91– 118). Mahwah, NJ: Erlbaum. Johnston, J. (2003). Child custody in divorce. Journal of the American Academy of Psychiatry and the Law, 31, 158–170. Kaplan, L., Ade-Ridder, L., & Hennon, C. (1991). Issues of split custody: Siblings separated by divorce. Journal of Divorce and Remarriage, 16, 253–274. Keating, D. P. (1990). Adolescent thinking. In S. S. Feldman & G. R. Elliott (Eds.), At the threshold: The developing adolescent. Cambridge, MA: Harvard University Press. Kelly, J. (2000). Children’s adjustment in conflicted marriage and divorce: A decade review of research. Journal of the American Academy of Child and Adolescent Psychiatry, 39, 963–973. King, R. A. (1996). Adolescence. In M. Lewis (Ed.), Child and adolescent psychiatry: A comprehensive textbook (3rd ed.). Philadelphia: Lippincott Williams & Wilkins. Kirby, J. B. (2002). The influence of parental separation on smoking initiation in adolescents. Journal of Health and Social Behavior, 43, 56–71. Lazar, A., & Guttmann, J. (2004). Adolescents’ perception of the ideal mate: Its relationship to parental characteristics in intact and nonintact families. Adolescents, 39, 389–396. Lerner, R. M., & Galambos, N. L. (1998). Adolescent development: Challenges and opportunities for research programs and policies. Annual Review of Psychology, 49, 413–446. Loeber, R. (1989). Natural histories of conduct problems, delinquency, and associated substance use: Evidence for developmental progressions. In B. B. Lahey & A. E.
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Kazdin (Eds.), Advances in clinical child psychology (Vol. 10, pp. 73–124). New York: Plenum Press. Maccoby, E., & Martin, J. (1983). Socialization in the context of the family: Parentchild interaction. In E. M. Hetherington (Vol. Ed.) & P. H. Mussen (Series Ed.), Handbook of child psychology: Socialization, personality, and social development (Vol. 4, pp. 1–101). New York: Wiley. Martin, P. D., Specter, G., Martin, D., & Martin, M. (2003). Expressed attitudes of adolescents toward marriage and family life. Adolescents, 38, 359–367. McMahon, S. D., Grant, K. E., Compas, B. E., Thurm, A. E., & Ey, S. (2003). Stress and psychopathology in children and adolescents: Is there evidence of specificity? Journal of Child Psychology and Psychiatry, 44, 107–133. Melton, G. B., Petrila, J., Poythress, M. G., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (2nd ed.). New York: Guilford Press. Mrazek, D., Mrazek, P., & Klinnert, M. (1995). Clinical assessment of parenting. Journal of the American Academy of Child and Adolescent Psychiatry, 34, 272–282. Offer, D., & Schonert-Reichl, K. A. (1992). Debunking the myths of adolescence: Findings from recent research. Journal of the American Academy of Child and Adolescent Psychiatry, 31, 1003–1014. Selman, R. L. (1980). The growth of interpersonal understanding: Developmental and clinical analyses. New York: Academic Press. Steinberg, L., & Morris, A. S. (2001). Adolescent development. Annual Review of Psychology, 52, 83–110. Størksen, I., Røysamb, E., Holmen, T., & Tambs, K. (2006). Adolescent adjustment and well-being: Effects of parental divorce and distress. Scandinavian Journal of Psychology, 47, 75–84. Størksen, I., Røysamb, E., Moum, T., & Tambs, K. (2005). Adolescents with a childhood experience of parental divorce: A longitudinal study of mental health and adjustment. Journal of Adolescence, 28, 725–739. Summers, P., Forehand, R., Armistead, L., & Tannenbaum, L. (1998). Parental divorce during early adolescence in Caucasian families: The role of family process variables in predicting the long-term consequences for early adult psychosocial adjustment. Journal of Consulting and Clinical Psychology, 66, 327–336. Thompson, R. A., & Laible, D. (1999). Noncustodial parents. In M. E. Lamb (Ed.), Parenting and child development in nontraditional families. Mahwah, NJ: Erlbaum. Weiss, R. E. (1979). Growing up a little faster. Journal of Social Issues, 35, 97–111. Zimet, D. M., & Jacob, T. (2001). Influences of marital conflict on child adjustment: Review of theory and research. Clinical Child and Family Psychology Review, 4, 319–335.
CHAPTER 10
Adopted Children and Custody Arrangements SUSAN M. FISHER
W
HAT IS VALID, wise, and true about custody arrangements for birth children is equally valid, wise, and true for adopted children— only more so. Whether the ‘‘only more so’’ derives from a sense of loss resulting from knowledge of having been moved around, either at birth or later in development, with actual memories of previous caretakers, or whether the ‘‘only more so’’ derives from necessary information wisely provided by adoptive parents about the adoption so that adoptees are inevitably sensitized to loss and separation, adopted children’s vulnerability to concerns about abandonment are likely to be heightened (Watkins & Fisher, 1993). Whether they are birth children or adopted, children are always, at some level, disoriented and disrupted by parental separation, even when the child knows it was for the best and actually desires and is, in fact, relieved, even affirmed and liberated, by the divorce (McAuliff, Kovera, & Gilstrap, Chapter 5; Wallerstein & Blakeslee, 1989). Whatever an adopted child feels during a divorce will be intensified by an extra measure of anxiety and sensitivity, derived either from his or her own life experience or from the way the larger culture responds to adopted children, looking for, even expecting, a vulnerability to loss (Bartholet, 1993; Kirk, 1964, 1984; Rothman, 1989; Wegar, 1997). Here are two examples of sensitivity to loss and separation that arise in the lives of adopted children that are less likely to arise in the lives of children raised by their birth parents, assuming equivalent family situations. An adoptive mother told me that she had to explain to her devoted parents that the kind of loving joking she grew up with about ‘‘being sent back to Woolworth’s if she wasn’t a good girl’’ was absolutely forbidden in regard to
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their adopted grandchildren: There could be ‘‘no kidding around’’ about being ‘‘sent back.’’ Another adoptive mother told me of a startling moment with her young teenage son, adopted at birth, comfortable with his adoption by every measure and doing well in his life. There was talk between them about exchanging the newest addition to his turtle collection, a very small turtle, for a larger one, the larger turtle having been unavailable the day before. When the mother suggested an exchange, to her utter astonishment the boy began to sob and was unable to explain what was wrong. It took her a few seconds to get it, and she then said to him, her hand on his shoulder, only this: ‘‘We’ll keep them both. In our family, nobody gets sent back.’’ These two vignettes demonstrate appropriate parental sensitivity to the child’s concern about loss—loss of people, of pets, of objects to whom the child is attached. This heightened awareness of loss in the adopted child is neither pathological nor particularly problematic. It is usually not conscious and is often talked about comfortably within adoptive families. It can even heighten sensitivity to others in ways that enhance relationships. But there can be ‘‘no kidding around’’ about the inviolability of the adoptee’s connection to the adoptive parents. My premise is that attachments are primarily psychosocial phenomena (see Gould, Martindale, & Flens, Chapter 4). Whatever controversy exists around the nature of early attachment—Is it biological? Is it evolutionarily driven? Are there prenatal connections (unlikely)? Does a response to the birth mother’s smell or gaze mean that there is a primal bonding (very unlikely) or simply a response with little psychological significance?—there is no doubt in infant researchers’ minds that infants form an attachment to the person who can be depended on to care for them. To quote Charles Zeanah, professor of psychiatry at Louisiana State University and a leading researcher in this area: There is compelling evidence that it is not necessary to give birth to a child for the parent to become attached to the child and the child to the parent. There is not a shred of evidence that babies adopted soon after birth don’t get attached to their caregivers. (Quoted in Melina, 1997, p. 2)
Young children understand naturally that it is love that defines family relationships (Pederson & Gilby, 1986; Wegar, 1997). Zeanah and Alan Sroufe, a professor of psychology at the University of Minnesota Institute of Child Development, agree that there is no evidence of a prenatal bond between the birth mother and infant that predisposes the infant to attach to her or that gives the biological mother a head start in attachment. ‘‘Attachment has to do with relationship experiences,’’ said Sroufe (quoted in Melina, 1997, p. 3), and there are no relationships in utero. There are certainly fantasies during
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pregnancy, as there are fantasies during the waiting period for an adopted baby. These fantasies prepare the mother for the child’s arrival, whatever its source, from within her body, as in a pregnancy, or from elsewhere, as in an adoption. Every mother, birth or adoptive, has to be prepared to relinquish aspects of her fantasy when the real baby arrives, for the real baby can never exactly match any fantasy. There has been serious confusion between the development of emotional attachment over time between mother and infant and what is called ‘‘bonding,’’ a quasi-biological event purported to happen shortly after birth. As noted by Kraus (cited in Chapter 4 of this volume), the term ‘‘bonding’’ has been used by some investigators to refer to the emotional investment of the caretaker in the child. We consider such emotional investment to be a measure of attachment, a psychosocial process that deepens over time. Despite its discredited status among scientific researchers, bonding theory has remained persistently popular. Eyer (1992) concludes that bonding is a magical concept, invoked to distract childbirth reformers, necessitate medical interventions, and single out mothers for blame for the emotional problems of their children rather than place appropriate focus on the socioeconomic and cultural issues that militate against the proper care and nurture of children. The myth of bonding as a magical rite that confers emotional protection on a child has haunted adoptive mothers, as well as the mothers of premature infants and others who were unable to connect at the appropriate time because they or the infants were ill. For such mothers, bonding is a maternal event that they have already failed to perform in the prescribed hours after birth. Without an understanding of the mythical nature of the bonding notion and its confusion with healthy attachment (which adoptive children do achieve in loving, caring settings), adoptive families, educators, and therapists can mistakenly blame any later difficulties of adoptees on either the failure of bonding or the separation of an infant even a few days old from the birth mother he or she has supposedly already bonded to. Infant research is notorious for the way bits and pieces of it have been used to bolster one side or the other in ideological debates. Findings on the resiliency of the infant, for example, have been used to argue for the positive side of adoption; work on the effects of the disruption of bonds has been cited to support negative prognostications about adoption. That the infant early on recognizes the mother’s smell, for example, is used to support the contention that the adoptee is wounded by the adoption process because the infant has switched from one smell to another by leaving the birth mother. A fact about olfactory perception is given a psychological significance one would be hardpressed to prove. So we have, on the one hand, a romanticization of the mother-infant relation, with an image of the baby as easily harmed by separation (Rutter,
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1981). On the other hand, resiliency studies offer a quite different, hardier image of the infant. From our current cultural viewpoint, we have taken it for granted that the mother-child relationship in infancy and early childhood is all-important. Now studies question these commonplace assumptions, focusing on other highly significant variables, such as sibling relations, that correlate with adult outcome. These studies suggest that early experience may not matter as much as we thought it did, that children can make up for lost time—at least cognitively (Anthony, 1987; Clarke & Clarke, 1976; Cohler, 1987, 1992; Kagan, 1980). Moreover, in most cultures infants and children have multiple caretakers, and concern focuses on the quality of care rather than on the presence or loss of a particular caretaker (see Watkins & Fisher, 1993). If a child has been adopted later in development and has had a disrupted early life and is thereby potentially even more insecure, it is particularly important to reinforce the reality and reliability of the legal ties to the adoptive parents in the face of divorce. Whatever the timing of the adoption, in the eyes of the law and in the hearts and minds of the adoptive family this child belongs with them in the same way that a birth child belongs in his or her birth family. The fantasies and projections adoptive parents have for the adopted child will be as variable and idiosyncratic as the fantasies and projections within a birth family for a birth child. All children are vulnerable. Adopted children are potentially more vulnerable because their claims and attachments, being social in origin, can be more threatened by an insensitive and demeaning social milieu (see Wegar, 1997). It is therefore particularly crucial that these claims and attachments, their reality and their meanings, be respected, even sanctified, within the legal system. This is true for all children, only more so for adopted children. There is a moving quote by a child in H. David Kirk’s (1984, p. 160) remarkable classic Shared Fate: ‘‘The child who is born into his family is like a board that’s nailed down from the start. But the adopted child, him the parents have to nail down, otherwise he is like a loose board in mid-air.’’ In this context, the Baby Richard case is a well-publicized example. This child had been adopted at birth. His birth mother had falsely stated that she did not know the whereabouts of the baby’s father. Subsequently, the father returned and challenged the adoption. The case became the object of intense public attention. Ultimately, the Illinois Supreme Court held for the birth parents, finding that a hearing regarding the child’s best interest was not pertinent to the case. The child was abruptly transferred to his birth parents during his third year. These parents have not allowed contact between him and his adoptive parents or sibling. The case did lead to the passage of a law requiring a ‘‘best interest’’ hearing in similar situations, but the impact of this law remains uncertain.
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The Baby Richard case is a lightning rod for every fearful fantasy of every member of an adoptive family. In the stories collected for our book (Watkins & Fisher, 1993), in which parents describe their conversations with their adopted children, one of the common themes expressed by very young children is a fear that the birth parents would kidnap them. Though very much like children’s fairy stories and images and fantasies of bogeymen and dragons that may represent desires masked as fears, or the reverse, the threat of an actual abandonment of the adopted child by the adoptive parents is captured by the Baby Richard case. Many adopted children talk about the fear that, because their birth parents gave them up, their adoptive parents may do the same. It is in the context of such an expressed fear that adoptive parents often clarify the context in which the original relinquishment occurred. The Baby Richard case is every adopted child’s horror story. At the time the case was in the news many adoptive parents had to pull out legal records and go over them with their children, reassuring them many times over that their adoption was untouchable, unquestionable, and inviolable. They had to explain the legal differences of the Baby Richard situation from their own in ways their children could understand. The notion of children as ‘‘left luggage’’ to be reclaimed as parental property does not sit well in the minds of the adopted children we studied. There are now many complex studies, both retrospective and longitudinal, comparing three groups of children: children born into two-parent families who then raise them (the control group), children born to single mothers who keep them, and children born to single mothers and given up for adoption into a social class and environment similar to that of the biological children in the first group. The findings of large-scale studies from New Zealand (1,265 children), Sweden (624 children), and the United States are remarkably consistent (Bohman & Sigvardsson, 1978, 1980; Feigelman, 1997; Fergusson, Lynskey, & Horwood, 1995). Children kept by single mothers who had considered and then rejected adoption and children raised in foster families do not fare as well as the other two groupings in terms of family stability, social enrichment activities, response to stressful life events, and the quality of emotional responsiveness between mother and child. A more enriched upbringing is no guarantee, however, of a well-balanced, self-regulating human being. What appears to be the case in all these studies is that adopted and birth children are equivalent at adulthood on all fronts except that, during adolescence, adoptees are at higher risk for externalizing behavior disorders that appear to straighten themselves out by maturity. Externalizing behaviors refer to Conduct Disorders, Attentiondeficit/Hyperactivity Disorder, acting-out behaviors, and substance abuse disorders. There is no difference in any of these well-controlled large-scale studies between adoptees and birth children in internalizing symptoms:
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depression, social withdrawal, self-esteem, anxiety disorders, and mood disorders. (Children of single mothers in the New Zealand study, however, had lower self-esteem.) During adolescence adopted children had more problems in externalizing behaviors than birth children raised in two-parent families. But, once again, they had significantly fewer difficulties than children of single mothers. Because these adolescent acting-out behaviors tend to resolve by adulthood, when the two groups of children raised in two-parent families look the same to trained observers, the present hypothesis is that these adolescent externalizing behaviors are not the manifestation of internal psychological difficulties related to the adoption because there are no signs of internalizing behaviors. These are the signs of intrapsychic conflict, deficit, and despair that would manifest in the expression of anxiety, depression, and suicidal ideation, none of which are present in the adopted children studied. The New Zealand researchers put it best. They suggest what all the previous studies have implied: that the increased rate of externalizing behaviors in adolescence was due to ‘‘genetic or congenital factors that place adopted children at high risk for such disorders.’’ Simply put, the adoptive pool consists of children whose prenatal experience is more likely to have included a higher incidence of exposure to the effects of substance abuse and poor nutrition, both factors that predispose not only to externalizing behaviors but to learning disabilities as well. When not managed carefully and successfully, these factors can lead to frustrations and tensions expressed in behavioral ways. Absolutely no data suggest that an adopted child’s genetic endowment alone predisposes to later externalizing behaviors. No one has yet designed a study in which it is possible to sort out genetic effects from the effects of less than optimal intrauterine environments. In the New Zealand study of 1,265 children, adoptive children had rates of (externalizing) disorder that were higher than would have been expected on the basis of the social characteristics of their adoptive mothers but lower than would have been expected on the basis of the social characteristics of their biological mothers. These results clearly suggest adoptive children may have been a biologically high-risk group for externalizing behaviors but that the generally advantaged childhood they received in the adoptive family may have mitigated this risk somewhat with the result that adoptive children had risks of adolescent externalizing behaviors that were between the elevated risks of children with a similar biological parental background and the lower risks of children with a similar social background to the adoptive family. (Bohman & Sigvardsson, 1978, 1980)
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Impressively, and most significant, the two groups, birth and adoptee, look the same in adulthood, suggesting that the adequate self-concept and selfesteem of adoptees help get them through adolescence when they are well supported by an enriched and responsive environment. The birth children of the control group families are not at similar risk for adolescent externalizing behaviors. A famous pair of French studies on intelligence were able to compare siblings, one adopted away and one remaining at home with the birth parents (Schiff et al., 1978), and then elaborately expand on their work by comparing four groups of adopted children (Capron & Duyme, 1989): (1) those born to high-socioeconomic status (SES) parents and raised by high-SES adoptive parents; (2) high-SES babies adopted into low-SES families; (3) low-SES babies adopted into high-SES families; and (4) low-SES babies adopted into low-SES families. The researchers found that children adopted by high-SES parents scored higher than children adopted by low-SES parents by 12 points on IQ tests. They also found, however, that children born to high-SES parents scored 15 points higher than children born to low-SES parents, regardless of the SES of the adoptive parents. The children with the highest IQs were those of high-SES birth parents adopted into high-SES families; the lowest scores were achieved by children from low-SES birth families adopted into low-SES families. Capron and Duyme (1989, p. 553) concluded: Although those findings clearly indicate that the biological parent’s background contributes to observed differences in IQ between extreme groups, as does that of the adoptive parents, more detailed interpretation is difficult. The adoption method provides a means of dissociating the pooled effects of genetic and prenatal factors from factors related to the postnatal environment. But it is not equipped to differentiate prenatal from genetic factors. This precludes interpreting the effects of the biological parents’ background solely in genetic terms, or concluding that observed effects could be prenatal or prenatal acting either in additive or interactive manner with genotype. On the contrary, the effect attributed to the adoptive parents is clearly environmental.
What is the significance for the courtroom of these large-scale statistical studies of complex populations of adopted, birth, single-parent, and fostered children? What is the relevance of our understanding of the vulnerabilities of adopted children? Once again, that the need for clarity, order, respect, reliability, humanity, and sanity in dealing with the needs of all developing children will be intensified for the adopted child, particularly during adolescence. They need the same qualities as any child during adolescence—only more so. All children need sensitivity and care during divorce, but adopted children are particularly sensitive to issues of abandonment. If the adopted
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child of a divorcing family happens to be one of the children vulnerable to externalizing behaviors because of constitutional or developmental predispositions, it will be even more significant for the child’s future development that there be closure and clarity about procedures and results as well as empathic, sensitive responsiveness to his or her particular needs. For all adopted children, particularly those with any special needs, at any age, all else being equal, the primary custodial parent should be the one with the most committed attachment to the child and to whom the child is most attached. Once again, this is the case for all children, but for adopted children the palette is brighter, the shadows potentially darker. It is also of particular importance that the noncustodial parent be given visitation arrangements that will support his or her connection with the child. In the case of an open adoption where contact with birth families may have been maintained, whatever arrangements were meaningful to the child before the divorce should be maintained afterward. Everything should be done to maintain the network of attachments of the adopted child to the significant figures in his or her life, just as it should be done for a birth child. Perhaps the theme of loss for the adoptee can sensitize and mobilize judicial personnel to give to adopted children the quality of careful attention that will be a model for all children under their protection.
REFERENCES Anthony, E. J. (1987). Risk, vulnerability and resilience: An overview. In E. J. Anthony & B. J. Cohler (Eds.), The invulnerable child. New York: Guilford Press. Bartholet, E. (1993). Family bonds: Adoption and the politics of parenting. Boston: Houghton Mifflin. Bohman, M., & Sigvardsson, S. (1978). An 18-year prospective, longitudinal study of adopted boys. In J. Anthony, C. Koupernik, & C. Chiland (Eds.), The child in his family: Vulnerable children (p. 264). London: Wiley. Bohman, M., & Sigvardsson, S. (1980). A prospective, longitudinal study of children registered for adoption: A 15-year follow-up. Acta Paediatrica Scandinavia, 61, 339– 355. Capron, C., & Duyme, M. (1989, August 17). Assessment of effects of socio-economic status on IQ in a full cross-fostering study. Nature, 340, 552–554. Clarke, A. M., & Clarke, A. D. B. (1976). Early experience: Myth and evidence. New York: Free Press. Cohler, B. J. (1987). Adversity, resilience, and the study of lives. In E. J. Anthony & B. J. Cohler (Eds.), The invulnerable child (pp. 363–424). New York: Guilford Press. Cohler, B. J. (1992). Culture, vulnerability, and resilience in the study of risk for major psychopathology. In D. Cicchetti & D. J. Cohen (Eds.), Manual of developmental psychopathology. New York: Wiley.
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Eyer, D. (1992). Mother-infant bonding: A scientific fiction. New Haven, CT: Yale University Press. Feigelman, W. (1997). Adopted adults: Comparisons with persons raised in conventional families. In H. E. Gross & M. B. Sussman (Eds.), Families and adoption. New York: Haworth Press. Fergusson, D. M., Lynskey, M., & Horwood, L. J. (1995). The adolescent outcomes of adoption: A 16-year longitudinal study. Journal of Child Psychology and Psychiatry, 36, 597–615. Kagan, J. (1980). Perspectives on continuity. In O. G. Brim Jr. & J. Kagan (Eds.), Continuity and change in human development (pp. 26–74). Cambridge, MA: Harvard University Press. Kirk, H. D. (1964). Shared fate: A theory of adoption and mental health. New York: Free Press. Kirk, H. D. (1984). Shared fate: A theory and method of adoptive relationships (2nd ed.). Port Angeles, WA: Ben-Simon. Melina, L. (1997). Recent studies examine adoption outcome, birth mothers’ decisionmaking. Adopted Child, 16(1), 1–4. Pederson, D. R., & Gilby, R. L. (1986). Children’s concepts of the family. In R. D. Ashmore & D. M. Brodzinsky (Eds.), Thinking about the family: Views of parents and children (pp. 119–120). Hillsdale, NJ: Erlbaum. Rothman, B. K. (1989). Recreating motherhood: Ideology and technology in a patriarchal society. New York: Norton. Rutter, M. (1981). Maternal deprivation reassessed (2nd ed.). London: Penguin. Schiff, M., Duyme, M., Dumaret, A., Stewart, J., Tomkiewicz, S., & Feingold, J. (1978). Intellectual status of working-class children adopted early into upper-middleclass families. Science, 200, 1503–1504. Wallerstein, J. S., & Blakeslee, S. (1989). Second chances: Men, women and children a decade after divorce. New York: Ticknor & Fields. Watkins, M., & Fisher, S. (1993). Talking with young children about adoption. New Haven, CT: Yale University Press. Wegar, K. (1997). Adoption, identity, and kinship: The debate over sealed birth records. New Haven, CT: Yale University Press.
CHAPTER 11
Medically Ill Children and Adolescents BRENDA BURSCH
A
LMOST ONE-THIRD OF all children in the United States under the age of 18 were classified as suffering from a chronic health condition in the 1988 National Health Interview Survey (Newacheck & Taylor, 1992). About one million children a year experience divorce, and 38,000 of those children have a disease or handicapping condition (Barbero, 1995). Surprisingly, no research has been specifically conducted on the outcome of custody decisions on chronically ill children or on the optimal matching of children with chronic illnesses and caregivers. Although standard custody evaluations may be sufficient for many families with children who are chronically ill, knowledge of those factors that are relevant to families with medically ill children may assist an evaluator in making a decision that is in the best interest of the child. Recommendations made in this chapter are not intended to replace a standard custody evaluation but to augment the evaluation when appropriate. The first part of this chapter reviews relevant research literature. The following factors have been studied and considered to be important predictors of health status: the nature of the illness, stress, and medical treatment. Relevant research findings pertaining to the child and to the parents and developmental issues are presented when available. The second part incorporates research findings into recommendations for professionals conducting custody evaluations involving an ill child or adolescent.
NATURE OF THE ILLNESS The types of demands placed on the child and parents depend in part on the characteristics of the child’s illness. When evaluating a family it may 263
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be helpful to understand various aspects of the child’s illness, including the degree and type of incapacitation; the visibility of the condition; the prognosis or life expectancy; whether the course of the illness is constant, relapsing, or progressive; the amount of home and professional treatment and expertise required; and the amount of pain or other symptoms experienced. Due to the differing demands and issues raised by these very different illnesses it is possible that within one family one parent might be the optimal caregiver if the child suffers from chronic asthma and the other parent might be the optimal caregiver if the child has terminal cancer. OVERVIEW
OF
CHRONICALLY ILL CHILDREN
Among the one-third of children in the United States with chronic health conditions in 1988 were 20% with mild conditions, 9% with moderately severe conditions, and 2% with severe conditions (Newacheck & Taylor, 1992). Children in the mild group were most likely to suffer from respiratory allergies and chronic ear infections. Conditions identified as most common in the severe group included musculoskeletal impairments, cerebral palsy, diabetes, asthma, epilepsy, and arthritis. On average, children in the severe group had 2.6 medical conditions compared to 1.3 conditions in the mild group. Of those children with one or more chronic conditions, 13% were limited in their usual activities, experiencing an average of about 2 days in bed and 3 days home from school in the previous year due to their chronic condition (not due to acute illnesses such as the flu, injuries, or colds). Eight percent of chronically ill children accounted for about three-fourths of all bed days, with this group spending an average of 7 or more days in bed due to their chronic conditions. Similarly, 12% accounted for about three-fourths of lost school days, with an average of 7 or more school days missed during the year. Clearly, consideration of the number of expected lost school days and the ability of the parent to provide care for the child during those days without jeopardizing employment, and possibly health insurance coverage, is important to the long-term care of the child. Depending on the family, it may be helpful to inquire about the number of extended family members or friends who are available to assist with unexpected child care needs. Among chronically ill children, approximately two-thirds were reported by their parents to have used medications recommended by a doctor, and 4% were reported to have been hospitalized to treat their chronic health problems during the year prior to the interview. The children averaged
Nature of the Illness 265
close to five physician visits each year for their chronic conditions alone. Again, a relatively small number of chronically ill children, mostly in the severely ill group, accounted for the vast majority of physician contacts and hospital days. Severely chronically ill children had an average of 16 physician visits annually and accounted for one-third of all hospital days due to chronic illness. Also, 85% of this group reportedly used physicianrecommended medications. The need for the parent to regularly interact with health care personnel typically requires some form of health insurance or a way to pay for service, transportation to an appropriate health care facility, and the ability to communicate with health care providers. Community prevalence rates of childhood psychopathology are about 20% (Costello, 1989). It has been estimated that at least 12% of children and adolescents have serious mental disorders, and at least half of them are severely disordered or impaired by their condition (Institute of Medicine, 1989). The prevalence of psychopathology among chronically ill children is higher. The Ontario Child Health Study (Cadman, Boyle, Szatmari, & Offord, 1987) found that chronically ill children had twice as many psychological disorders as healthy children. Stocking, Rothney, Grosser, and Goodwin (1972) found that almost two-thirds of 80 pediatric hospital inpatients had significant psychopathology, with about half of the psychological disorders being unrelated to their medical illnesses. Kashini, Venzke, and Millar (1981) found that 7% of school-age children who were medical inpatients had a major depression, and that one-fourth of children admitted for orthopedic procedures showed evidence of depression. This research suggests that when evaluating the needs of a chronically ill child it is important to consider potential comorbid emotional problems. The course of a chronic illness can usually be categorized into one of three types: constant, relapsing, or progressive (Patterson & Garwick, 1994). Constant conditions, such as a spinal cord injury, often require a huge initial adjustment by the family and considerable perseverance over time. For families with a child with a constant condition it may be helpful to consider caregiver respite opportunities as part of the custody plan. Relapsing conditions, such as epilepsy and recurrent cancer, usually require the flexibility to shift between a lower level of care and an acute model of care. Frequent shifts may take a toll on the family resources. Progressive conditions, such as cystic fibrosis, often require increasing caretaking demands over time and the need to address issues of dependency, loss, and death. Although not empirically studied, comparing the expected course of the child’s illness with the abilities and coping styles of each parent may minimize the amount of burden experienced by the custodial parent and the amount of long-term stress experienced by the child.
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AND
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BASIC DISEASE-SPECIFIC INFORMATION Although space does not allow for a review of each of the many childhood illnesses, it is important for an evaluator to obtain basic information about the particular condition to determine the adequacy of the parents’ knowledge, expectations, and plans. For example, there are many issues specific to insulin-dependent diabetes mellitus (IDDM) that may be important for a custody evaluator to know. We use IDDM as an example to demonstrate the types of information that might be helpful for an evaluator to obtain regarding a specific condition. Typically IDDM is diagnosed in childhood and affects 1 out of every 600 children. It is characterized by a complete failure of the pancreas and consequently requires daily insulin replacement by injection (usually one injection before breakfast and one before dinner). Because of the current use of exogenous insulin, IDDM is now considered a long-term chronic illness (constant) with a life expectancy of about 75% of normal. Typically after 15 to 20 years, common complications of IDDM start to occur, including blindness, renal failure, nerve damage, and heart disease. Maintaining a blood glucose level in the near-normal range has been found to prevent, delay, or minimize these complications (American Diabetes Association, 1993). To help maintain a relatively even blood glucose level, the patient is usually instructed to eat small amounts of food frequently throughout the day. Factors such as exercise, illness, stress, and emotional state also impact insulin action and consequently blood glucose level. Because the blood glucose level can vary over the course of a day due to these many factors, it is often necessary to closely monitor the child’s blood glucose level by conducting blood tests at home or school. This requires a finger stick to produce a drop of blood that is analyzed by a sensitized strip or small computerized glucose meter. Death can result from either excessively high or low blood glucose levels. About 2% to 3% of children die of IDDM within the first 10 years after diagnosis, and 12% to 13% die within 20 years. Even with the small amount of information on IDDM presented here, a number of issues are clearly relevant for a custody evaluation. For example, if the child is young, the custodial parent must be prepared and able to give insulin shots, monitor blood glucose, provide an appropriate diet, monitor exercise, and help manage stress for the child. If the child is a normal adolescent, a parent who is supportive of the adolescent’s illness self-management behaviors and age-appropriate independence might be more effective than a parent who continues to want to personally manage the adolescent’s diabetes care. The custodial parent, regardless of the child’s age, must be able to identify the signs and symptoms of hypo- and hyperglycemia, potentially life-threatening events, and know how to respond.
Conceptual Underpinnings: Stress, Self-Efficacy, and Coping 267
CONCEPTUAL UNDERPINNINGS: STRESS, SELF-EFFICACY, AND COPING Among children, stress has been found to be linked with headaches, asthma, cancer outcome, hemophilia bleeding episodes, chronic diarrhea, and loss of diabetes control. It is expected that, as research in this area progresses, stress links with other illnesses will also be identified. It has been proposed that patients’ expectations and beliefs about their ability to care for themselves (self-efficacy) may play an important role directly on health outcome due to the activation of health-promoting behaviors and better adaptation to the stress associated with illness (Horwitz & Horwitz, 1993). The body of research that has examined these variables has provided a conceptual framework for understanding health behaviors and outcomes and for predictions about the effects of various sources of stress and support on health status. Patient expectancies and self-efficacy beliefs are two concepts derived from an extensively studied and widely accepted conceptual framework called social cognitive theory. Social cognitive theory utilizes a biopsychosocial model of human behavior which specifies that human behavior is the result of the interactions of one’s actions, thoughts, emotions, other personal factors, and environmental influences (Bandura, 1989). This framework includes the concept of efficacy expectations, which have received much attention within the health behavior literature. In this model, the probability that a person will perform a behavior (such as seeking health care services or engaging in self-management of a problem) is related to the person’s beliefs that he or she has the knowledge and ability to perform the behavior (self-efficacy) and that the behavior will result in beneficial outcomes (treatment efficacy). Efficacy expectations are influenced by several factors, including previous accomplishments and vicarious experiences. The development of self-efficacy requires experience mastering challenges with persevering effort. Research supports this model of efficacy expectations influencing health behaviors, including medical adherence, across a broad spectrum of illnesses. Self-inefficacy beliefs are thought to play a role in the development of illness and increased use of health care services by negatively influencing one’s stress level, functioning, and emotions by impacting one’s appraisal of demanding situations. Thoughts that one is unable to manage potential threats are distressing and impair functioning (Bandura, 1988a, 1988b; Lazarus & Folkman, 1984; Meichenbaum, 1977; Sarason, 1975). Specifically, perceived coping self-inefficacy has been linked to high rates of subjective distress, physiologic arousal, and secretion of stress-related substances into the body (Bandura, Reese, & Adams, 1982; Bandura, Taylor, Williams, Mefford, & Barchas, 1985). Interestingly, it is not the number of negative thoughts but the perceived self-inefficacy to turn them off that leads to high
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levels of distress (Kent, 1987; Salkovskis & Harrison, 1984). This finding is consistent with other research revealing that exposure to physical stressors with the ability to control them has no adverse physiological effects, but exposure to the same stressors without such personal control impairs cellular components of the immune system (Maier, Laudenslager, & Ryan, 1985). There is some evidence to suggest that stress that occurs while increasing one’s coping efficacy actually enhances immune function (Wiedenfeld et al., 1990). Self-inefficacy beliefs have also been linked to avoidant behavior and depression. Research on self-efficacy, anxiety, and avoidant behavior has revealed that avoidant behavior is not driven by anxiety, but by the belief that one is unable to manage a situation (Williams, Dooseman, & Kleifield, 1984; Williams, Kinney, & Falbo, 1989; Williams, Turner, & Peer, 1985). Perceived self-inefficacy to achieve goals and attain life satisfaction has been linked to depression (Bandura, 1988c; Cutrona & Troutman, 1986; Holahan & Holahan, 1987a, 1987b; Kanfer & Zeiss, 1983). By impairing functioning, thoughts of self-inefficacy further diminish perceptions of self-efficacy (Kavanagh & Bower, 1985). Similar to findings regarding self-efficacy and anxiety, it is the perceived self-efficacy to turn off negative thoughts that is important to the occurrence, duration, and recurrence of depressive episodes (Kavanagh & Wilson, 1988). As people tend to avoid environments in which they perceive they are inefficacious and choose those in which they feel a higher degree of self-efficacy, decisions people make serve to reinforce their perceived competencies, values, and interests (Bandura, 1986; Betz & Hackett, 1986; Lent & Hackett, 1987; Snyder, 1986).
MEDICAL TREATMENT ADHERENCE Adherence to medical treatment is of significant concern to health care providers and has been demonstrated to be a significant problem, sometimes fatal, for chronically ill children and adolescents. Overall pediatric adherence rates are estimated to average 50%, typically varying between 20% and 80% (Dunbar & Waszak, 1990). Many factors have been found to be related to adherence, often because they impact stress, self-efficacy, or coping. Custody evaluation in families with an ill child or adolescent should include the examination of relevant factors related to medical adherence and strategies employed by the parents to optimize adherence as well as the appropriateness of medical adherence. The following factors are potentially relevant for child custody evaluations: family functioning, social support, psychological characteristics of the parent, and psychological characteristics of the child. Although many of the studies reviewed suffered from small sample sizes, the
Medical Treatment Adherence 269
results across studies appear to be consistent in most cases. Differences are discussed when they exist. FAMILY FUNCTIONING
AND
SOCIAL SUPPORT
Several studies have found an inverse relationship between family conflict and treatment adherence among children (Christiaanse, Lavigne, & Lerner, 1989; Friedman et al., 1986; Hauser et al., 1990), and a number of studies suggest that medication adherence in particular is negatively impacted by family dysfunction. For example, nonadherence with immunosuppressive medications following renal transplant was found to be related to families that were fatherless, had lower income, and had more communication problems and to the pediatric patients feeling they receive the most emotional support from someone outside the family (Korsch, Fine, & Negrete, 1978). Underscoring the importance of adherence to immunosuppressive medications in this population, 8 out of the 14 noncompliant patients experienced organ rejection and return to dialysis. In another study, Miller-Johnson et al. (1994) studied 88 children and adolescents with insulin-dependent diabetes from two clinics and found that ratings of parent-child discipline, warmth, and behavioral support were not significantly associated with diabetes outcome, but both parent and child ratings of parent-child conflict was a consistent correlate of medical adherence. Finally, nonadherence with seizure medication among children with epilepsy has been associated with families with less perceived harmony (Friedman et al., 1986). Looking at it from the other side, children and adolescents who have parents who provide more social support for their diabetic care activities have been found to be more adherent (Hanson, Henggeler, & Burghen, 1987; La Greca et al., 1995). Similarly, Shenkel, Rogers, Perfetto, and Levin (1985) reported that social support was important in moderating behavioral intentions, although not necessarily the resulting behaviors, of diabetic adolescents. Chaney and Peterson (1989) found that medication adherence among children with juvenile rheumatoid arthritis was related to higher levels of family cohesion and adaptability, lower degrees of stress from family life, mother’s coping, and father’s family satisfaction. Hanson, De Guire, Schinkel, Henggeler, and Burghen (1992) found better dietary adherence among adolescents with diabetes who were from families who were more flexible and less nonsupportive (nagging, criticizing). One adherence study suggests that family functioning might interact with the type of disorder. Brown, Borden, and Clingerman (1985) found that hyperactive children were more likely to drop out of treatment if their family was intact, and the families of the medication-adherent children reported higher levels of family conflict. Although family functioning appears to have
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a relationship with adherence, the direction of the relationship might depend on the disorder. The limited number of studies in this area do not allow for strong conclusions to be made, but suggest that issues such as family cohesion, adaptability, conflict, communication, emotional support, and stress be evaluated considering the circumstances involved with the various custody options. PSYCHOLOGICAL CHARACTERISTICS
OF THE
PARENT
Knowledge defined here refers to an understanding of the disease process, the tasks that are required for successful illness management, the ability to execute the tasks, and the ability to problem-solve. Knowledge requirements vary greatly by disease and individual child. Parental knowledge has been found to be an important factor related to adherence in many childhood illnesses, including asthma, cystic fibrosis, hemophilia, phenylketonuria, and diabetes (A. B. Alexander, 1983; Creer, 1993; Fehrenbach & Peterson, 1989; Johnson, 1995; Sergis-Deavenport & Varni, 1982, 1983). However, the degree of importance that needs to be attached to parental knowledge may vary by developmental level of the child. For example, maternal knowledge has been linked to treatment adherence among preadolescent children with diabetes, but not for adolescents. It is the knowledge level of the diabetic adolescents themselves that has been found to predict their adherence to treatment recommendations (La Greca, Follansbee, & Skyler, 1990). Health beliefs of mothers have been studied using adherence as an outcome measure in a number of studies. Mothers have been found to be more adherent with asthma medication for their children if the mothers had a preventive orientation, believed in their personal capabilities, considered the medication efficacious, felt better when following physician advice, and believed their child would be more susceptible to an asthma attack if they were not compliant (Radius et al., 1978). The belief in their child’s susceptibility to illness has also been found to be associated with treatment adherence among mothers of well children and of children with ear infections and obesity (Becker, Drachman, & Kirscht, 1974; Becker, Maiman, Kirscht, Haefner, & Drachman, 1977; Becker, Nathanson, Drachman, & Kirscht, 1977). Severity of the risks believed to be associated with noncompliance has also been found to be an important factor among mothers (Becker et al., 1974; Becker, Maiman, et al., 1977; Becker, Nathanson, et al., 1977). Other adherence studies that have examined psychological characteristics of the parents have not been replicated, making it difficult to discern the importance of the findings. For example, as presented earlier, Chaney and Peterson (1989) found that medication adherence among children with juvenile rheumatoid arthritis was related to mother’s coping and father’s
Medical Treatment Adherence 271
family satisfaction. Another study focused on the psychological characteristics of mothers who refused cancer treatment for their children (Blotcky, Cohen, Conatser, & Klopovich, 1985); they were found to report greater religiosity and greater trait anxiety. Research on the psychological characteristics of the parent related to medical adherence suggests that it might be important to evaluate parents’ knowledge about their child’s medical status and needs and parental health beliefs. In particular, parents’ beliefs regarding their child’s susceptibility to illness and severity of the risks appear to be related to adherence. The importance that is placed on this portion of the evaluation will likely vary depending on the developmental stage of the child. Other beliefs or psychopathology that might interfere with prudent health care decisions should also be evaluated as appropriate. RELEVANT PSYCHOLOGICAL CHARACTERISTICS
OF THE
CHILD
Although a number of psychological characteristics of the child have been studied using adherence as an outcome measure, only those characteristics that are most likely to be relevant during a custody evaluation are reviewed here. They include independence and locus of control. Several studies have examined independence and autonomy in relationship to adherence among adolescents. Increased independence has been found to be related to increased adherence with appointment keeping, antiseizure medication, and contraceptive use (Durant, Jay, Linder, Shoffitt, & Litt, 1984; Friedman et al., 1986; Litt & Cuskey, 1984; Neel, Jay, & Litt, 1985). These finding suggest that, among families in which the ill child is an adolescent, it may be important to determine which parent is most supportive of the adolescent’s independence and medical self-management. A number of studies have measured locus of control and adherence with somewhat inconsistent results. Locus of control refers to the degree to which one has the general belief that one personally impacts life events (internal locus) or that external forces impact life events (external locus). Among adolescents with cancer, those with an external locus of control were more likely to be nonadherent with treatment and to refuse treatment than those with an internal locus of control (Blotcky et al., 1985; Jamison, Lewis, & Burish, 1986). In one study of pediatric patients with diabetes, internally oriented girls and externally oriented boys were more adherent (Hamburg & Inoff, 1982); in another study of diabetic patients, locus of control was not found to be related to adherence (Gross, Delcher, Snitzer, Bianchi, & Epstein, 1984). The inconsistencies in the research regarding locus of control suggest that there may be another factor that interacts with locus of control to impact adherence. Inquiry regarding locus of control might not be fruitful in a
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custody evaluation unless it is clear that the child or adolescent is extreme in his or her focus in a way that would impede prudent health care decisions if not mediated by appropriate parental involvement. STRATEGIES EMPLOYED TO OPTIMIZE ADHERENCE Strategies employed to optimize adherence should reflect those variables that are most likely to cause nonadherence for the particular child in question and may vary depending on which aspect of the treatment recommendations (medications, diet, exercise, etc.) is being targeted (Stark, Jelalian, & Miller, 1995). For example, one would expect that a controlling parent will be prone to exacerbate the nonadherence of an adolescent who is struggling to achieve independence. Few studies have specifically compared various parental strategies to optimize medical adherence in their children. However, some studies have identified or suggested successful parental strategies. Particularly in cases in which there is a history of medical nonadherence, it may be important to assess the types of strategies each parent uses to optimize adherence. If adherence has historically been optimized, it is important to understand what has worked in order to preserve the program, if possible. Although most of the studies were conducted with small numbers of subjects, positive reinforcement has been used effectively to increase adherence across a number of childhood disease categories, including diabetes, hemophilia, spina bifida, asthma, and renal failure (Carney, Schechter, & Davis, 1983; Epstein et al., 1981; Finney, Lemanek, Brophy, & Cataldo, 1990; Greenan-Fowler, Powell, & Varni, 1987; Killam, Apodaca, Manella, & Varni, 1983; Lowe & Lutzker, 1979; Magrab & Papadopoulou, 1977; Wysocki, Green, & Huxtable, 1989). The nature of the positive reinforcement should be evaluated in terms of the developmental functioning of the child and the type of illness. Younger or less motivated children may require more immediate and frequent reinforcement (Friedman & Litt, 1987). Adjunctive strategies and alterations in the reinforcement plan are likely to be important for chronic conditions, as adherence often decreases over time or if the reinforcer is removed. Use of a token system (such as points that can be exchanged for various rewards) easily allows for changes in the reinforcer and has been found to be effective in improving adherence in children with rheumatoid arthritis (Rapoff, Lindsley, & Christophersen, 1984), with diabetes (Carney et al., 1983; Daneman et al., 1982), and on hemodialysis (Magrab & Papadopoulou, 1977). Strategies used with adolescents will likely need to be different from those used with younger children. Adolescents have been found to be nonadherent to avoid appearing different from their peers (Dolgin, Katz, Doctors, & Siegel,
Appropriateness of Health Service Utilization and Medical Adherence 273
1986; Friedman & Litt, 1987; Korsch et al., 1978). Among organ transplant adolescents, who require medications that often cause physical disfigurement, dissatisfaction with body image is related to nonadherence to medications (Klein, Simmons, & Anderson, 1984). A parent who is able to model and provide support for coping assertively with peer pressure and social demands may be most useful for these adolescents. Parent involvement in efforts designed to improve family communication and reduce conflict may also improve adherence. Improvements in illnessrelated family communication skills, problem-solving strategies, and family support for adolescent self-care have been demonstrated in a randomized, controlled trial to improve diabetes adherence 6 months after intervention (Satin, La Greca, Zigo, & Skyler, 1989). A program designed to train parents of children with diabetes to set clear expectations, avoid power struggles with the child, and effectively use reinforcement strategies and motivation techniques resulted in improved adherence with diet, insulin administration, and glucose monitoring. It is not clear if direct parent supervision is consistently helpful or unhelpful for adherence. Among children with diabetes, increased parental supervision has been found to be positively correlated with improved exercise and insulin injection adherence, but negatively correlated with dietary behaviors and unrelated to glucose testing (Johnson, 1995). Positive reinforcement, modeling of effective coping, and interventions geared toward improved family functioning have all been linked to medical adherence. However, the efficacy of educational efforts alone, self-monitoring alone, graduated goal setting alone, reminders, contingency contracting alone, and increased parental supervision has not been consistently demonstrated to improve adherence (Dunbar & Waszak, 1990). APPROPRIATENESS OF HEALTH SERVICE UTILIZATION AND MEDICAL ADHERENCE The parent who appears to be more committed to the health care needs of the child is not always the best parent to have primary responsibility for the child. Variables other than the child’s medical needs have been shown to be related to health care utilization. Such variables may complicate the difficult task of balancing the importance of illness self-management and appropriate health care. There are even instances when the acquisition of medical care may not be in the best interests of the child or may be harmful to the child. An evaluation of the appropriateness of parental concern, desire for medical intervention, and support for the sick role are important when considering custody options.
274 MEDICALLY ILL CHILDREN
FAMILY VARIABLES
AND
AND
ADOLESCENTS
HEALTH CARE UTILIZATION
Although the child’s health status is consistently found to be the strongest statistical predictor of general pediatric service utilization, there is also clear indication that family variables are important to health care utilization (C. S. Alexander & Markowitz, 1986; Newacheck & Halfon, 1986; Tessler & Mechanic, 1978; Wolfe, 1980). For example, it appears that mothers who are experiencing significant stress are more likely to seek medical care for their children (C. S. Alexander & Markowitz, 1986; Gortmaker, Eckenrode, & Gore, 1982; Roghmann & Haggerty, 1973; Slessinger, Tessler, & Mechanic, 1976; Tessler & Mechanic, 1978). It is not clear from the published research if a mother’s stress impacts her perceptions of her child’s health status or if the mother’s stress actually impacts her child’s health. Also found to contribute to health care service use in general pediatrics are having a young child, urban area of residence, higher number of chronic medical problems in the child, families with a medical history of similar symptoms, more parental control, less expressiveness, more achievement orientation, fewer social activities, and higher level of maternal education (C. S. Alexander & Markowitz, 1986; Newacheck & Halfon, 1986; Slessinger et al., 1976; Weimer, Hatcher, & Gould, 1983). EFFICACY
OF ILLNESS
SELF-MANAGEMENT
VERSUS
HEALTH CARE UTILIZATION
There are medical problems for which a very careful balance of medical care and self-management are important to the health outcomes of children. Overreliance on health care systems might undermine illness selfmanagement and consequently negatively impact the health status of the child. For example, research on pediatric pain syndromes suggest that children with severe and persistent pain often have inadequate coping responses and perceive themselves to have little control over their pain (Branson & Craig, 1988; Dunne-Geier, McGrath, Rouke, Latter, & D’Astous, 1986). The type of coping strategy used by a child has been shown to influence the impact of his or her pain, with more active coping strategies increasing the child’s sense of control and more passive strategies leading to withdrawal, inactivity, and increased pain (Flor, Birbaumer, & Rudy, 1990; Siegal & Smith, 1989). Because a child’s ability to utilize adaptive coping skills is influenced by the family environment (Dolgin & Phipps, 1989; Dunne-Geier et al., 1986) via discriminate cues and selective reinforcement of pain behavior (Fordyce, 1976; Kerns et al., 1991; Turk, Flor, & Rudy, 1987), parental influence appears to be an important consideration in symptom development and maintenance. Specific parental behaviors that have been found to reinforce pain behaviors include providing sympathy and attention for symptoms, external help seeking, strong
Appropriateness of Health Service Utilization and Medical Adherence 275
emotional responses, modeling of symptoms, and support for task avoidance (Fordyce, 1976; Payne & Norfleet, 1986; Philips, 1987; Whitehead, Busch, Heller, & Costa, 1986). In short, overreliance on the medical system may, at times, hinder more effective coping and the resolution of symptoms. QUALITY
OF
LIFE
There may be times when the costs of adhering to medical protocols are not in the best interest of the child, even if nonadherence results in the deteriorating or suboptimal health of the child. Other factors that influence the child’s quality of life must be considered when evaluating the importance of adherence. Costs such as treatment side effects, financial burden, impact on functioning, and interference with daily activities may at times outweigh the benefits of treatment adherence and must be determined on a case-by-case basis. The weighing of such costs and benefits may be most poignant in the case of a terminally ill child, but may be of equal importance in cases of chronically ill children. MUNCHAUSEN
BY
PROXY
The acquisition of medical care and administration of prescribed medications for children who do not require it can take the form of child abuse, such as in Munchausen by proxy (MBP). In MBP, a caretaker fabricates or induces illness in a child so that others view the child as ill. The child might have a true illness that is manipulated or might be healthy. Most typically, the child is brought frequently to medical professionals for evaluation and treatment of the fabricated or induced signs and symptoms. The stress of a divorce can be sufficient to cause an onset or exacerbation of this form of abuse in a parent who is vulnerable to this type of behavior. Additionally, it is possible that the child’s reported special health care needs might be used as an argument for custody. Consideration of the health of the child when under the care of each parent might be helpful in identifying MBP and related forms of child abuse, as victims usually improve or become symptom-free when separated from the abuser. When considering custody issues in a family where it is known that the child has been a victim of MBP, it is important to keep in mind the seriousness of MBP behavior. It is not unusual for a parent to refrain from MBP behaviors while under supervision. Frequently, however, the abuse begins again slowly and escalates over time. Of six MBP children followed by McGuire and Feldman (1989), five continued to be abused after referral to child protective services and all six continued to be abused during and after the abuser had participated in psychotherapy. Any arguments for increased parental control that are based on parents’ reassurances, strong emotions, accusations, or attempts at explaining misunderstandings are concerning
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and should be very closely considered. Parents who are truly interested primarily in their child’s safety are usually open to monitoring and support. It is in the cases of extreme MBP that complete denial, hostility, threats of lawsuits, and the garnering of outside support is most frequently observed (Kinscherff & Famularo, 1991). For most cases, considering the child’s use of medical services before social services intervention compared to the child’s use of services during separation from the abuser is a helpful indication of risk. For example, a child who had significant medical intervention or impairment before separation (doctor’s office visits, use of medications, low functioning, or hospitalizations) and little or no medical intervention or impairment during separation (fewer medications, higher functioning, or fewer use of medical services) is at risk to return to his or her previous level of medical intervention or impairment over time if returned to the abuser. There is danger in relying on the child’s medical status during unsupervised visitations or while the child is in the custody of a relative or family friend as a point of reference, however. Abuse often reoccurs over time and once external monitoring has ceased. Additionally, abuse sometimes continues with the conscious or unconscious collusion of other family members or family friends who have temporary custody. When evaluating a previous or suspected MBP abuser for child custody, it is important to consider the health care arrangements made for the children to minimize the danger of future abuse. It is often recommended that all pediatric medical care be coordinated by one or a team of two pediatricians (to cover each other) who have (a) the relevant medical history of the child, (b) a summary of the MBP evaluation, and (c) MBP experience or access to someone with MBP expertise. The pediatrician should (a) monitor the child’s health and, if the child becomes ill, treat or refer the child for appropriate care; (b) assess the child’s development; and (c) answer medical questions. If the child is in the custody of the abuser, arrangements can sometimes be made with insurance companies so that any attempts at utilizing their insurance to seek care outside this arrangement can be reported. The diagnosing professionals should be included in the long-term evaluation of the family, if possible. Likewise, mental health professionals who participated in the diagnosis can be helpful to reassess the progress made by the abuser in psychotherapy. When evaluating previous abusers for suitability for custody it is important to consider the quality of psychiatric treatment they have received. Like other forms of child abuse, those abusers who admit MBP are generally considered to be more likely to benefit from psychotherapy. Following are recommendations for psychotherapy with the abuser and spouse:
Mental health professionals evaluating or treating a suspected MBP family should have training and experience, or access to someone with training
Conclusion 277
and experience, with MBP. This recommendation is consistent with legal and ethical mandates to practice within one’s scope of expertise. Evaluating and treating mental health professionals should have access to all available records (sent directly from health care providers or organizations rather than provided by the family) and other professionals, and should utilize this information in their evaluation and treatments. Treating psychotherapists must provide service consistent with the determination of the court. If the court finds MBP, the therapist must provide services to treat MBP. If the therapist does not believe MBP occurred, is not convinced of MBP when provided with available records, or is unwilling to provide appropriate treatment, the therapist’s view should be investigated for validity and a new therapist should be obtained. If the treating psychotherapist argues with the court that the parents are loving and concerned parents who have been wrongly accused, it is important to consider that the therapist may have been fooled by the parents, making the therapist ineffective. Again, a new therapist should be seriously considered. Similar to other forms of child abuse, some indicators of successful treatment are the following: (a) Abusers have admitted to the abuse and have been able to describe specifically how they abused the child; (b) they have experienced an appropriate emotional response to their behaviors and the harm they have caused their child; (c) they have developed strategies to better manage their needs and to avoid abusing their child in the future; and (d) they have demonstrated these skills, with monitoring, over a significant period of time. It is important that the partners of the suspected abusers also be included in therapy, as they either have colluded with the abuser (consciously or unconsciously) or for other reasons are unable to protect their child. CONCLUSION
An evaluator involved in a custody decision involving chronically ill children or on the optimal matching of children with chronic illnesses and caregivers may need to augment the standard custody evaluation. It is important to include knowledge of those factors that are relevant to families with medically ill children in order to make a decision that is in the best interest of the child. Our recommendations are not intended to replace a standard custody evaluation but to augment the evaluation when appropriate.
Obtain a good understanding of the disease and determine the specific disease management requirements before conducting any other portion of the evaluation. Minimally, the following disease-related information should be obtained: the degree and type of incapacitation; the visibility
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of the condition; the prognosis or life expectancy; whether the course of the illness is constant, relapsing, or progressive; the expected amount of interface required with health care systems; the amount and types of home and professional treatment and expertise required; and the amount of pain or other symptoms typically experienced by those with the disease. Determine how illness management has previously worked in the family and evaluate the multiple perceptions of how effective the illness management has been (including the perspective of the child’s physician). Identifying what has worked previously as well as specific areas of concern from multiple perspectives may help shape the direction of the evaluation. If custody is currently shared, determine (if possible) if the health of the child varies depending on who the child is with. Evaluate the knowledge, specific skills, previous experience, and care philosophy of each parent, including parental beliefs regarding the child’s susceptibility to illness and severity of the risks, strategies employed to optimize medical adherence, and views regarding the appropriateness of medical care intervention. The importance that is placed on this portion of the evaluation will vary depending on the developmental stage (but not necessarily the age) of the child. Evaluate stress, social support, and possible barriers to meeting the needs of child. The specific concepts of family cohesion, adaptability, conflict, communication, emotional support, and perceived stress have been identified as important family variables. Additionally, parental or child psychopathology that might interfere with prudent health care decisions should also be evaluated as appropriate. Consider recommending parent training, if indicated, on the topics of understanding the illness, recognizing important medical signs and symptoms, and using appropriate disease management techniques. Most medical centers have parent training available for the parents of children with common chronic illnesses. Consider parent or child psychotherapy if medical noncompliance or poor illness management appears to be partially due to family conflict, difficulties with parenting, or major psychopathology.
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CHAPTER 12
Parental Sexual Orientation, Social Science Research, and Child Custody Decisions CHARLOTTE J. PATTERSON
H
sexual orientation enter into decisions about child custody, if at all? This question has faced many litigants, attorneys, and judges in the United States. Over the years different answers have been proposed by various participants in child custody disputes. Many responses to this question have been based on assumptions, such as the idea that development among children who live with openly lesbian or gay parents may be impaired in one or more ways. Because social science methods can be used to evaluate assumptions of this kind, the results of social science research can be pertinent to child custody determinations that involve questions about parental sexual orientation. In this chapter I consider the role of social science research in the resolution of child custody disputes, focusing specifically on issues related to parental sexual orientation. To illustrate some of the questions that have arisen, I begin with a brief overview of some relevant features of child custody determinations involving parental sexual orientation across the United States. In the next section I describe the social science research on parental sexual orientation, parenting, and child development. In the third section I draw out some implications of research findings for legal decision making in child custody cases. In this way, I hope to sketch the cultural and legal context of scientific inquiry, explain the principal findings of social science research, and clarify the value of such work in disputes about child custody. In all such disputes, courts in every jurisdiction in the United States are to make custody decisions based on the ‘‘best interests of the child’’ (Wald, 2006). Although this standard is always paramount, its application may vary OW SHOULD PARENTAL
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from one jurisdiction to another. Whether to consider parental sexual orientation as one among other factors affecting a child’s best interests is thus an important decision for courts to make. In all instances, however, the best interests of the child are the undisputed standard. The largest number of child custody disputes that involve parental sexual orientation occur in the context of heterosexual divorces in which one parent has disclosed a lesbian or gay identity. In these cases, courts must decide whether the lesbian or gay parent’s sexual identity is a relevant factor to be considered in determining the child’s best interests. More recently, other kinds of child custody disputes have emerged, for example, between members of a lesbian couple who have separated after having children (Richman, 2002); and these cases are discussed briefly in the final section of this chapter. Most of the discussion focuses, however, on the most common child custody disputes: those between one heterosexual and one lesbian or gay parent. OVERVIEW OF CHILD CUSTODY DETERMINATIONS INVOLVING PARENTAL SEXUAL ORIENTATION There have been many instances in which judicial decision making has been hostile to lesbian and gay parents in the United States, especially in the context of child custody proceedings (Connolly, 2002; Patterson & Redding, 1996; Rubenstein, 1996). For instance, in a South Dakota child custody case, a judge commented that, as the ‘‘mother had chosen to live as a homosexual, she should relinquish all custody of her children. A homosexual parent is a criminal’’ (Chicoine v. Chicoine, 1992). In a Florida case, custody of a child was given to the father, even though he had been convicted of murdering another relative. The court’s decision was based on the belief that a lesbian mother’s home could not be a suitable environment for any child (Ward v. Ward, 1995). In a Mississippi case, a gay father was denied custody of his son even though the youngster had seen his mother repeatedly beaten by his stepfather and had been threatened himself by the stepfather. Even in light of these countervailing factors, the court ruled that the gay father’s sexual identity was a bar to his custody of his son (Weigand v. Houghton, 1999). In these and many other cases, courts have expressed negative views about lesbian and gay parents (Connolly, 2002; Rubenstein, 1996). When courts presume that lesbian and gay adults cannot provide suitable homes for children, they apply what has come to be described as a per se test (Connolly, 2002). The per se test states that nonheterosexual sexual identity is, in and of itself, sufficient grounds for denial of child custody. A clear statement of this position was made by the Virginia Supreme Court in 1985, when it denied custody to a gay father, holding that the ‘‘father’s continuous exposure of the child to his immoral and illicit relationship (with a same-sex partner) renders him an unfit and
Overview of Child Custody Determinations Involving Parental Sexual Orientation 287
improper custodian as a matter of law’’ (Roe v. Roe, 1985). According to the per se rule, lesbian and gay identities simply preclude custody of minor children (Joslin & Minter, 2008). In the past, sodomy laws were often relied on as support for per se rulings. For instance, in a 1998 decision, the Alabama Supreme Court justified limits on a lesbian mother’s visitation with her children with the statement: The conduct inherent in lesbianism is illegal in Alabama . . . (and the mother) is continually engaging in conduct that violates the criminal law of this state. Exposing her children to such a lifestyle, one that is illegal under the laws of this state . . . could greatly traumatize them. (Ex parte D. W. W., 1998)
Since the U.S. Supreme Court struck down sodomy laws in Lawrence v. Texas in 2003, such arguments carry markedly less force (S. B. Goldberg, 2004). Over time, per se rulings have given way in some jurisdictions to the consideration of sexual orientation as one among many factors. For example, when the Virginia Supreme Court awarded custody of a young boy to his grandmother rather than to his lesbian mother in 1995, the court specifically indicated that it was not applying a per se rule, but stated that the mother’s lesbian identity was ‘‘another important consideration in determining custody’’ (Bottoms v. Bottoms, 1995). Thus in some jurisdictions, parental sexual orientation has come to be viewed as one consideration among others, and debate has come to center around how much weight parental sexual orientation should be given. One standard that has been used to evaluate the significance of parental sexual orientation in child custody disputes is whether parents’ nonheterosexual identity has had any negative impact on the child. This nexus test requires that parental sexual orientation be shown to have resulted in harm to the child before parental sexual identity can be relied on as a decisive factor in custody matters. For instance, in S. N. E. v. R. L. B. (1985), an Alaska court awarded custody to a lesbian mother, noting that there was ‘‘no suggestion that (her sexual orientation) has or is likely to affect the child adversely.’’ Similar rulings have emerged in other jurisdictions. In fact, at the present time, this is the standard that is most often employed by courts in the United States (Joslin & Minter, 2008). A question invited by the nexus test is, of course, what can be said to constitute harm. In different jurisdictions, courts have come to varied conclusions on this point. In an Ohio case, a child was found to be distressed by the mother’s relationship with another woman, and this was considered evidence of harm for purposes of the nexus test (Lane v. Lane, 2001). In Blew v. Verta (1992), however, a Pennsylvania court found that a child’s distress and anger about the mother’s lesbian identity did not constitute evidence of
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harm to the child. Thus with the nexus test, considerable latitude exists for courts to determine what constitutes harm to a child and whether any harm has occurred. Given that parental divorce is generally considered to be painful for children, questions about distress and its appropriate attribution have been resolved differently by different courts. Over time, however, the momentum of change has clearly been favorable to the interests of lesbian and gay parents and their children. Particularly since the U.S. Supreme Court handed down its decision in Lawrence v. Texas (2003), many of the legal arguments that have been used against lesbian and gay parents have lost force (S. B. Goldberg, 2004). In the District of Columbia, the law now explicitly states that parental sexual orientation cannot be a conclusive consideration in matters related to child custody (Joslin & Minter, 2008). Although many, if not most, jurisdictions use a nexus test, it has become increasingly difficult to provide evidence of harm to children stemming from parental sexual orientation. As the results of social science research on lesbian- and gay-parented families become known, many courts seem to be moving toward an appropriate stance in the treatment of parental sexual orientation. RESEARCH ON PARENTAL SEXUAL ORIENTATION, PARENTING, AND CHILD DEVELOPMENT Research on parental sexual orientation, parenting, and child development has addressed many of the concerns that have surfaced in child custody cases that involve a lesbian or gay parent. In this section, I first present the research on lesbian and gay parents themselves. In the next section, I consider the results of studies that focus on children of lesbian and gay parents. In all the research the main questions of interest focus on how well parents and children are faring in terms of their psychological and social adjustment. RESEARCH
ON
LESBIAN
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Three concerns about lesbian and gay parents have historically been associated with judicial decision making in custody litigation: the idea that lesbians and gay men are mentally ill, the notion that lesbians are less maternal than heterosexual women, and the belief that lesbians’ and gay men’s relationships with sexual partners leave little time for ongoing parentchild interactions (Patterson, 2007; Patterson, Fulcher, & Wainright, 2002; Patterson & Redding, 1996). As material presented in this section shows, research has failed to confirm any of these beliefs (Patterson, 2007; Patterson et al., 2002; Perrin & Committee on Psychosocial Aspects of Child and Family Health, 2002).
Research on Parental Sexual Orientation, Parenting, and Child Development 289
Mental Health of Lesbians and Gay Men As is well-known, the psychiatric, psychological, and social work professions do not consider homosexual orientation to be a mental disorder. The American Psychiatric Association (1980) removed homosexuality from its list of mental disorders in 1980, stating that ‘‘homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities.’’ The American Psychological Association (1975, 2004) has taken the same position and urged psychologists to help dispel the stigma that has long been associated with homosexual orientation. The National Association of Social Workers (1994) has a similar policy. The decision to remove homosexual orientation from the list of mental disorders reflected extensive research, conducted over 3 decades, showing that homosexual orientation is not a psychological maladjustment (Gonsiorek, 1991). There is no reliable evidence that homosexual orientation per se impairs psychological functioning, although the social and other circumstances in which lesbians and gay men live, including exposure to widespread prejudice and discrimination, may cause distress (Cochran, 2001). Lesbians and Gay Men as Parents Beliefs that lesbian and gay adults are not fit parents likewise have no empirical foundation (Anderssen, Amlie, & Ytteroy, 2002; Brewaeys & VanHall, 1997; Patterson, 2000; Perrin, 2002; Stacey & Biblarz, 2001; Tasker, 1999). Lesbian and heterosexual women have not been found to differ significantly either in their overall mental health or in their approaches to child rearing (e.g., Bos, van Balen, & van den Boom, 2004; Patterson, 2001). Similarly, lesbians’ romantic and sexual relationships with other women have not been found to detract from their ability to care for their children (e.g., Bos et al., 2004; Chan, Raboy, & Patterson, 1998; Pagelow, 1980). Lesbian couples who are parenting together have most often been found to divide household and family labor relatively evenly and to report satisfaction with their couple relationships (e.g., Bos et al., 2004; Chan, Brooks, Raboy, & Patterson, 1998; Ciano-Boyce & Shelley-Sireci, 2002; Johnson & O’Connor, 2002; Patterson, 1995; Tasker & Golombok, 1998; Vanfraussen, PonjaertKristoffersen, & Brewaeys, 2003). Research on gay fathers likewise suggests that they are likely to divide the work involved in child care relatively evenly and that they are satisfied with their couple relationships (Johnson & O’Connor, 2002). Some studies suggest that lesbian mothers’ and gay fathers’ parenting skills may be superior to those of matched heterosexual parents. For instance, Flaks, Fischer, Masterpasqua, and Joseph (1995) reported that lesbian couples’ parenting awareness skills were stronger than those of heterosexual couples. This was attributed to greater parenting awareness among lesbian nonbiological mothers than among heterosexual fathers. In one study,
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Brewaeys, Ponjaert, Van Hall, and Golombok (1997) likewise reported more favorable patterns of parent-child interaction among lesbian as compared to heterosexual parents. In another study, however, they found greater similarities (Vanfraussen et al., 2003). A recent study of more than 200 lesbian and gay parent families found that, in contrast to reports of heterosexual parents, very few lesbian and gay parents reported any use of physical punishment (such as hitting or spanking) as a disciplinary technique; instead, they were likely to report use of positive techniques such as reasoning (Johnson & O’Connor, 2002). Certainly research has found no reasons to believe lesbian mothers or gay fathers to be less adequate than heterosexual parents (Armesto, 2002; Bos, van Balen, & van den Boom, 2003, 2004; Patterson, 1997; Patterson & Chan, 1997; Tasker & Golombok, 1997). On the contrary, results of research suggest that lesbian and gay parents are as likely as heterosexual parents to provide supportive home environments for children. RESEARCH
ON
CHILDREN
OF
LESBIAN
AND
GAY PARENTS
In addition to judicial concerns about lesbian and gay parents themselves, courts have voiced three major fears about the possible influence of lesbian and gay parents on children. The first of these fears is that development of sexual identity will be impaired among children of lesbian and gay parents. For instance, one such concern is that children brought up by lesbian mothers or gay fathers will show disturbances in gender identity or in gender role behavior (Patterson et al., 2002; Patterson & Redding, 1996). It has also been suggested that children brought up by lesbian mothers or gay fathers will themselves become lesbian or gay (Patterson et al., 2002; Patterson & Redding, 1996). For instance, in Jacobson v. Jacobson (1981), the Supreme Court of North Dakota expressed concern that the children of a lesbian mother might themselves become lesbian or gay adults. A second category of concerns involves aspects of children’s personal development other than sexual identity (Patterson et al., 2002; Patterson & Redding, 1996). Courts have expressed fears that children in the custody of lesbian or gay parents will be more vulnerable to mental breakdown, will exhibit more adjustment difficulties and behavior problems, and will be less psychologically healthy than other children. As the Missouri Court of Appeals indicated in L. v. D. (1982), courts may be concerned about ‘‘the probably devastating effect of that lifestyle upon children.’’ A third category of specific fears expressed by the courts is that children of lesbian and gay parents may experience difficulty in social relationships (Falk, 1994; Patterson et al., 2002; Patterson & Redding, 1996). Judges have expressed concern that children living with lesbian mothers or gay fathers may be stigmatized, teased, or otherwise victimized by peers. For instance,
Sexual Identity 291
the Virginia Supreme Court gave custody of a minor child to the heterosexual mother with the justification that, had the gay father been awarded custody of his daughter, ‘‘social condemnation . . . will inevitably afflict her relationships with her peers and with the community at large’’ (Roe v. Roe, 1985, p. 694). Another fear that has been voiced is that children living with gay or lesbian parents may be more likely to be sexually abused by the parent or by the parent’s friends or acquaintances. Research can be valuable in evaluating the extent to which any of these concerns are justified. SEXUAL IDENTITY Three aspects of sexual identity are considered in the research: gender identity, which concerns a person’s self-identification as male or female; gender-role behavior, which concerns the extent to which a person’s activities, occupations, and the like are regarded by the culture as masculine, feminine, or both; and sexual orientation, which refers to a person’s choice of sexual partners, who may be homosexual, heterosexual, or bisexual (Money & Ehrhardt, 1972; Stein, 1993). Research relevant to each of these three major areas of concern is summarized next. GENDER IDENTITY In studies of children ranging in age from 5 to 14, results of projective testing and related interview procedures have suggested that development of gender identity among children of lesbian mothers follows the same pattern as that for children raised by heterosexual mothers (Green, 1978; Green, Mandel, Hotvedt, Gray, & Smith, 1986; Kirkpatrick, Smith, & Roy, 1981). More direct assessment techniques to assess gender identity have been used by Golombok, Spencer, and Rutter (1983) with the same result: All children in this study reported that they were happy with their gender and that they had no wish to be a member of the opposite sex. There was no evidence in any of the studies of gender identity of any difficulties among children of nonheterosexual parents. GENDER-ROLE BEHAVIOR A number of studies have reported that gender-role behavior among children of lesbian mothers falls within typical limits for conventional sex roles (Brewaeys et al., 1997; Golombok et al., 1983; Gottman, 1990; Green, 1978; Green et al., 1986; Hoeffer, 1981; Kirkpatrick et al., 1981; Kweskin & Cook, 1982; Patterson, 1994). For instance, Kirkpatrick and her colleagues found no differences between children of lesbian mothers and children of heterosexual
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mothers in toy preferences, activities, interests, or occupational choices. Rees (1979) administered the Bem Sex Role Inventory (BSRI) to adolescents who lived with divorced lesbian or divorced heterosexual mothers. The BSRI yields scores on masculinity and femininity as independent factors and an androgyny score based on the ratio of masculinity to femininity. Children of lesbian and heterosexual mothers did not differ on masculinity or on androgyny, but children of lesbian mothers reported greater psychological femininity than did children of heterosexual mothers. This result is the opposite of what one might expect based on stereotypes of lesbians as lacking in femininity, both in their own demeanor and in their likely influences on children. Gender-role behavior of children was also assessed by Green and his colleagues (1986). In interviews with the children, no differences between children of divorced lesbian and children of divorced heterosexual mothers were found with respect to favorite television programs, favorite television characters, or favorite games or toys. There was some indication in interviews with the children themselves that those with lesbian mothers had less sextyped preferences for activities than did those with heterosexual mothers. Consistent with this result, lesbian mothers were also more likely than heterosexual mothers to report that their daughters often participated in rough-and-tumble play or occasionally played with ‘‘masculine’’ toys such as trucks or guns, but they reported no differences in these areas for sons. Lesbian mothers were no more and no less likely than heterosexual mothers to report that their children often played with ‘‘feminine’’ toys such as dolls. In both family types, however, children’s sex-role behavior was seen as falling within the expected or typical range. Brewaeys and her colleagues (1997) also assessed gender-role behavior among young children who had been conceived via donor insemination by lesbian couples, and compared it to that of same-age children who had been conceived via donor insemination by heterosexual couples, and to that of same-age children who had been naturally conceived by heterosexual couples. They used the Preschool Activities Inventory (Golombok & Rust, 1993), a maternal report questionnaire that was specifically designed to identify typically masculine and feminine behavior among boys and girls within unselected samples of schoolchildren. They found no significant differences between children of lesbian and those of heterosexual parents on preferences for gendered toys, games, and activities (Brewaeys et al., 1997). Overall, the research suggests that children of nonheterosexual parents develop patterns of gender-role behavior that are much like those of other children. Thus concerns about possible problems in the development of gender identity and gender-role behavior among the offspring of lesbian and gay parents have no basis in empirical research.
Other Aspects of Personal Development 293
SEXUAL ORIENTATION A number of investigators have also studied another aspect of sexual identity, sexual orientation (Bailey, Bobrow, Wolfe, & Mikach, 1995; Bozett, 1981, 1982, 1987, 1989; Golombok & Tasker, 1996; Gottman, 1990; Green, 1978; Huggins, 1989; Rees, 1979; Tasker & Golombok, 1997). All of these investigators have found that the great majority of offspring of both lesbian mothers and gay fathers describe themselves as heterosexual. For instance, Huggins interviewed adolescents, half of whom had lesbian mothers and half of whom had heterosexual mothers. None of the offspring of lesbian mothers identified themselves as lesbian or gay, but one adolescent with a heterosexual mother did; this difference was not statistically significant. Bailey and his colleagues studied adult sons of gay fathers and found more than 90% of the young men to be heterosexual. Golombok and Tasker (1996; Tasker & Golombok, 1997) studied 25 young adults reared by divorced lesbian mothers and 21 young adults reared by divorced heterosexual mothers. They reported that offspring of lesbian mothers were no more likely than those of heterosexual mothers to describe themselves as feeling attracted to same-sex sexual partners. If they were attracted in this way, however, young adults with lesbian mothers were more likely to report that they would consider entering into a same-sex sexual relationship, and they were more likely to have actually participated in such a relationship. They were not, however, more likely to identify themselves as nonheterosexual (i.e., as lesbian, gay, or bisexual). These results were based on a small sample, and they must be interpreted with caution. At the same time, this study is the first to follow children of divorced lesbian mothers into adulthood, and it offers a detailed and careful examination of important issues. Thus the information that is available does not reveal elevated rates of nonheterosexual identity among the offspring of lesbian or gay parents. Even if it did, this would be no cause for alarm because nonheterosexuality is a normal variation of human sexual identity. At this time, however, the research evidence does not reveal increased likelihood that offspring of lesbian or gay parents would themselves grow up to identify themselves as nonheterosexual.
OTHER ASPECTS OF PERSONAL DEVELOPMENT Studies of other aspects of personal development among children of lesbian and gay parents have assessed a broad array of characteristics. Among these have been separation-individuation (Steckel, 1985, 1987), psychiatric evaluations (Golombok et al., 1983; Kirkpatrick et al., 1981), behavior problems (Brewaeys et al., 1997; Chan, Raboy, et al., 1998; Flaks et al., 1995; Gartrell, Rodas, Deck, Peyser, & Banks, 2006; Golombok et al., 1983; Golombok, Tasker,
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& Murray, 1997; Patterson, 1994; Tasker & Golombok, 1995, 1997; Wainright, Russell, & Patterson, 2004), personality (Gottman, 1990; Tasker & Golombok, 1995, 1997), self-concept (Golombok et al., 1997; Gottman, 1990; Huggins, 1989; Patterson, 1994; Puryear, 1983; Wainright et al., 2004), locus of control (Puryear, 1983; Rees, 1979), moral judgment (Rees, 1979), school adjustment (Wainright et al., 2004), and intelligence (Green et al., 1986). Research suggests that concerns about difficulties in these areas among children of lesbian mothers are unwarranted (Parks, 1998; Patterson, 1997, 2000; Perrin, 1998, 2002; Stacey & Biblarz, 2001; Tasker, 1999). As was the case for sexual identity, studies of these aspects of personal development have revealed no major differences between children of lesbian versus heterosexual mothers. Overall, the belief that children of lesbian and gay parents suffer deficits in personal development is without empirical foundation. SOCIAL RELATIONSHIPS Studies assessing potential differences between children of lesbian and gay parents, on the one hand, and children of heterosexual parents, on the other, have included assessments of children’s social relationships. The most common focus of attention has been on peer relations, but some information about children’s relationships with adults has also been collected. Research findings that address the likelihood of sexual abuse are also summarized in this section. Research on peer relations among children of lesbian mothers has been reported by Golombok and her colleagues (1983, 1997), by Green (1978; Green et al., 1986), and by Patterson and her colleagues (Patterson, 1994; Wainright & Patterson, 2006, 2008). Reports by both parents and children suggest typical patterns of development of peer relationships. For example, as would be expected, most school-age children reported same-sex best friends and predominantly same-sex peer groups (Golombok et al., 1983; Green, 1978; Patterson, 1994). The quality of children’s peer relations was described, on average, in positive terms by researchers (Golombok et al., 1983) as well as by mothers and their children (Golombok et al., 1997; Green et al., 1986). Although some children and adolescents have described experiences of antigay remarks from peers (Gartrell, Deck, Rodas, Peyser, & Banks, 2005; A. E. Goldberg, 2007), adolescent and young adult offspring of divorced lesbian mothers did not recall being the target of any more childhood teasing or victimization than did the offspring of divorced heterosexual mothers (Tasker & Golombok, 1995, 1997; Wainright & Patterson, 2006, 2008). The number and quality of adolescents’ and young adults’ romantic relationships has also been found to be unrelated to maternal sexual orientation (Tasker & Golombok, 1997; Wainright et al., 2004).
Social Relationships 295
Studies of the relationships with adults among the children of lesbian and gay parents have also resulted in a generally positive picture (Brewaeys et al., 1997; Golombok et al., 1983; Harris & Turner, 1985; Kirkpatrick et al., 1981; Wainright et al., 2004). For example, child and adolescent relationships with their parents have been described as equally warm and caring, regardless of whether parents have same- or opposite-sex partners (Patterson, 2001; Wainright et al., 2004). Golombok and her colleagues found that children of divorced lesbian mothers were more likely to have had recent contact with their father than were children of divorced heterosexual mothers. Another study, however, found no differences in this regard (Kirkpatrick et al., 1981). Harris and Turner studied the children of gay fathers as well as those of lesbian mothers and reported that parent-child relationships were described in positive terms. One significant difference was that young adult offspring of divorced lesbian mothers described themselves as communicating more openly with their mother and with their mother’s current partner than did adult children of divorced heterosexual parents (Tasker & Golombok, 1997). Research has also focused on children’s contacts with members of the extended family, especially grandparents. Because grandparents are generally seen as supportive of their grandchildren, any strains in parents’ relationships with grandparents might have adverse effects on the frequency of children’s contacts with grandparents, and hence also have a negative impact on grandchildren’s development. Patterson and her colleagues (Fulcher, Chan, Raboy, & Patterson, 2002; Patterson, Hurt, & Mason, 1998) have evaluated these possibilities in two separate studies. Their findings revealed that most children of lesbian mothers were described as being in regular contact with their grandparents (Patterson et al., 1998). In a recent study based on a systematic sampling frame and in which lesbian and heterosexual parent families were well-matched on demographic characteristics, there were no differences in the frequency of contact with grandparents as a function of parental sexual orientation (Fulcher et al., 2002). Gartrell and her colleagues (2000) have also reported that grandparents were very likely to acknowledge the children of lesbian daughters as grandchildren. Thus the evidence from empirical research suggests that intergenerational relationships in lesbian mother families are satisfactory. Children’s contacts with adult friends of their lesbian mothers have also been assessed (Fulcher et al., 2002; Golombok et al., 1983; Patterson et al., 1998). All of the children were described as having contact with adult friends of their mother, and most lesbian mothers reported that their adult friends were a mixture of homosexual and heterosexual individuals. Children of lesbian mothers were no less likely than those of heterosexual mothers to be in contact with adult men who were friends of their mother (Fulcher et al., 2002).
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Concerns that children of lesbian or gay parents are more likely than children of heterosexual parents to be sexually abused have also been addressed. Results of work in this area reveal that the great majority of adults who perpetrate sexual abuse are male; sexual abuse of children by adult women is extremely rare (Finkelhor & Russell, 1984; Jones & MacFarlane, 1980). Moreover, the overwhelming majority of child sexual abuse cases involve an adult male abusing a young female (Jenny, Roesler, & Poyer, 1994; Jones & MacFarlane, 1980). Available evidence reveals that gay men are no more likely than heterosexual men to perpetrate child sexual abuse (Groth & Birnbaum, 1978; Jenny et al., 1994). There are few published reports relevant to the issue of sexual abuse of children living in the custody of lesbian or gay parents. A recent study did, however, find that none of the lesbian mothers participating in a longitudinal study had abused their children (Gartrell et al., 2005). Fears that children in custody of lesbian or gay parents might be at heightened risk for sexual abuse are without basis in the research literature. In summary, results of research to date suggest that children of lesbian and gay parents have positive relationships with peers and that their relationships with adults of both sexes are also satisfactory. The emerging picture of lesbian mothers’ children is one of general engagement in social life with peers, with fathers, with grandparents, and with mothers’ adult friends, both male and female, both heterosexual and homosexual. Fears about children of lesbians and gay men being sexually abused by adults, ostracized by peers, or isolated in single-sex lesbian or gay communities have not been supported by the results of existing research. IMPLICATIONS OF RESEARCH FOR LEGAL DECISION MAKING IN CHILD CUSTODY MATTERS Overall, there is no evidence to suggest that lesbian women or gay men are unfit to be parents or that psychosocial development among children of lesbian mothers or gay fathers is compromised relative to that of the offspring of heterosexual parents. Not a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents. Indeed, the evidence to date suggests that home environments provided by lesbian and gay parents are as likely as those provided by heterosexual parents to support and enable children’s psychosocial growth. It should be acknowledged that research on lesbian and gay parents and their children, though no longer new, is still limited in extent. Although studies of gay fathers and their children have been conducted (Barret & Robinson, 1990; Barrett & Tasker, 2001; Patterson, 2004; Patterson & Chan, 1997), less is known about children of gay fathers than about children of
Implications of Research for Legal Decision Making in Child Custody Matters 297
lesbian mothers. Although studies of adolescent and young adult offspring of lesbian and gay parents are available (e.g., Tasker & Golombok, 1997; Wainright & Patterson, 2006, 2008; Wainright et al., 2004), relatively few studies have focused on the offspring of lesbian or gay parents during adolescence or adulthood. Although more diverse samples have been included in recent studies (e.g., Golombok et al., 2003; Wainright & Patterson, 2006, 2008; Wainright et al., 2004), many sources of heterogeneity have yet to be systematically investigated. Although longitudinal studies have been reported (e.g., Gartrell et al., 2000, 2005; Tasker & Golombok, 1997), more studies that follow lesbian and gay parent families over time are still needed. Thus although a considerable amount of information is available, additional research would further our understanding of lesbian and gay parents and their children. Despite their limitations, however, the results of social science research on lesbian and gay parents and their children are nevertheless extraordinarily clear (Patterson, 2007; Wald, 2006). The results provide no justification whatsoever for restrictions on child custody or visitation by lesbian or gay parents. On the contrary, the findings of empirical research suggest that sexual orientation and parenting are simply unrelated. Conclusions based on social science research in this area have been recognized and incorporated into the policies of a number of relevant professional organizations. For example, taking into account the results of social science research, the American Psychological Association (2004) ‘‘opposes any discrimination based on sexual orientation in matters of adoption, child custody and visitation, foster care, and reproductive health services.’’ Similarly, the American Bar Association (1995) ‘‘supports the enactment of legislation and implementation of public policy providing that child custody and visitation shall not be denied or restricted on the basis of sexual orientation.’’ Similar policies have been adopted by the American Psychiatric Association, the American Medical Association, the American Academy of Pediatrics, and by many other professional groups in the United States (Patterson, 2007). The clear conclusion emerging from social science research relevant to lesbian and gay parents and their children is thus that parental sexual orientation is not as important a factor in parenting or child development as has often been believed. Studies with lesbian, gay, and heterosexual parents and their offspring have repeatedly found that the nature of relationships and interactions within the family are more clearly associated with important outcomes for children and adolescents than is parental sexual orientation (Patterson, 2006). This well-replicated and consistent finding suggests that parental sexual orientation should be considered essentially irrelevant to child custody proceedings. Instead of parental sexual orientation, courts should consider the quality of interactions and relationships between parents and their offspring.
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It is important to recognize, however, that the results of empirical research are only one form of information relevant to child custody proceedings (Huston, 2008). Findings of research studies like those described in this chapter can inform courts about average outcomes for children and adolescents in groups of different kinds that have been assembled for research, but they cannot hope to foresee specific outcomes for individual children whose custody is disputed. Differences among people and among families will always be multifaceted, and parental sexual identity is only one among many personal and family characteristics. What the research findings suggest, however, is that, of all the kinds of information that judges should keep in mind when making child custody determinations, parental sexual orientation may actually be one of the least important. This discussion has been focused on custody decisions that involve a heterosexual and a nonheterosexual parent because these have historically made up the largest number of child custody proceedings that involve parental sexual orientation. In recent years, however, increasing numbers of cases have emerged that involve at least two nonheterosexual parents (Richman, 2002; Tolleson, 2006). Some of these involve lesbian and gay couples who had children, subsequently separated, and face disputes about child custody. In some cases, both lesbian mothers or both gay fathers may be legally recognized parents. In other cases—especially in jurisdictions that do not allow legal adoptions by a second parent—only one of the lesbian mothers or gay fathers may be a legally recognized parent. Some cases involve children conceived via donor insemination; others involve children conceived in the context of surrogacy arrangements; and still other cases involve adopted children. In short, these newer cases are themselves quite diverse (Joslin & Minter, 2008; Tolleson, 2006). Most common among the newer child custody cases are those involving the separation of same-sex partners (Richman, 2002). In a typical case, a lesbian couple decided that one of them would conceive via donor insemination and give birth to a child and that they would rear the child together. After the child’s birth, both members of the couple typically acted as parents to the child for some period of time. Eventually, the couple’s relationship soured, and they separated. Unable to agree on child custody and visitation, they ended up in court. An important issue in these kinds of cases is whether both parents are recognized by the court as legal parents (Joslin & Minter, 2008). In some jurisdictions where the family may have completed a second-parent adoption, both parents will have legal standing in custody disputes. In other jurisdictions, however, avenues for legal recognition of a second same-sex parent may not have existed, and the second parent may be seen by the court as a ‘‘legal stranger,’’ having no connection to the child (Richman, 2002). In some of these locales, precedents may make it possible for a second parent to
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be given legal standing as a ‘‘psychological’’ or ‘‘de facto’’ parent (Joslin & Minter, 2008), but this is by no means a certain outcome. In many instances, the children may be left vulnerable to outcomes that isolate them from one of their parents and in this way fail to serve their best interests. What contributions can social science research make to resolution of these newer cases? Comparisons between heterosexual and nonheterosexual parents are not relevant to these disputes. Lengthy traditions of social science research attest, however, to the importance of children being allowed to maintain warm, consistent, and supportive relationships with both parents in the event of a divorce or separation (e.g., Emery, 1999). When children have formed close emotional ties with caretakers, the maintenance of these ties is conducive to children’s mental health, just as the disruption of them is likely to be detrimental (Golombok, 2000). Thus, from a psychological viewpoint, the best interests of children clearly require that courts seek to foster and maintain close parent-child relationships for children with nonheterosexual parents, just as they do for children with heterosexual parents. Important questions in this area turn on definitions of parenthood. If an adult has lived with a child, been viewed as a parent, and supplied the child’s financial support as well as physical care and guidance throughout the child’s life, should the law regard that person as a parent for purposes of child custody proceedings, even if there has been no legal adoption? Courts in different jurisdictions have answered this question in different ways (Joslin & Minter, 2008). From a psychological perspective, however, there is no ambiguity. From a psychological standpoint, children’s best interests require that significant relationships of this kind be protected. For courts to see such a person as a parent will generally, if not always, serve the child’s best interests. Legal recognition of second parents in lesbian- and gay-parented families should, as some courts have recognized, cut both ways (Joslin & Minter, 2008). Such recognition requires the protection of parent-child relationships, which has implications for decision making about custody and visitation. Such recognition also entails responsibilities, however, and has implications for decisions about child support and other financial arrangements. Parents have rights, but they also have responsibilities. Both rights and responsibilities should be respected and enforced by the legal system. CONCLUSION In summary, social science has much to offer when decision making about child custody involves issues related to parental sexual orientation (Patterson, 2006, 2007; Wald, 2006). After 25 years of social science research, there is now strong consensus among responsible professionals that parenting skills and sexual orientation are independent of one another and that children develop
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in very similar ways regardless of their parents’ sexual orientation. Whether parents are heterosexual, lesbian, or gay, children’s best interests require that important parent-child relationships be protected in the event of parental separation or divorce. Thus the central conclusion emerging from this area of work is that, for purposes of child custody decision making, parental sexual orientation should be considered irrelevant.
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Brewaeys, A., Ponjaert, I., VanHall, E. V., & Golombok, S. (1997). Donor insemination: Child development and family functioning in lesbian mother families. Human Reproduction, 12, 1349–1359. Brewaeys, A., & VanHall, E. V. (1997). Lesbian motherhood: The impact on child development and family functioning. Journal of Psychosomatic Obstetrics and Gynecology, 18, 1–16. Chan, R. W., Brooks, R. C., Raboy, B., & Patterson, C. J. (1998). Division of labor among lesbian and heterosexual parents: Associations with children’s adjustment. Journal of Family Psychology, 12, 402–419. Chan, R. W., Raboy, B., & Patterson, C. J. (1998). Psychosocial adjustment among children conceived via donor insemination by lesbian and heterosexual mothers. Child Development, 69, 443–457. Chicoine v. Chicoine, 479 N. W.2d 891 (S.D. 1992). Ciano-Boyce, C., & Shelley-Sireci, L. (2002). Who is Mommy tonight? Lesbian parenting issues. Journal of Homosexuality, 43, 1–13. Cochran, S. (2001). Emerging issues in research on lesbians’ and gay men’s mental health: Does sexual orientation really matter? American Psychologist, 931–947. Connolly, C. (2002). Lesbian and gay parenting: A brief history of legal and theoretical issues. Studies in Law, Politics, and Society, 26, 189–208. Emery, R. E. (1999). Marriage, divorce, and children’s adjustment (2nd ed.). Thousand Oaks, CA: Sage. Ex parte D. W. W., 717 So.2d 793 (Ala. 1998). Falk, P. J. (1994). The gap between psychosocial assumptions and empirical research in lesbian-mother child custody cases. In A. E. Gottfried & A W. Gottfried (Eds.), Redefining families: Implications for children’s development (pp. 131–156). New York: Plenum Press. Finkelhor, D., & Russell, D. (1984). Women as perpetrators: Review of the evidence. In D. Finkelhor (Ed.), Child sexual abuse: New theory and research (pp. 171–187). New York: Free Press. Flaks, D., Fischer, I., Masterpasqua, F., & Joseph, G. (1995). Lesbians choosing motherhood: A comparative study of lesbian and heterosexual parents and their children. Developmental Psychology, 31, 104–114. Fulcher, M., Chan, R. W., Raboy, B., & Patterson, C. J. (2002). Contact with grandparents among children conceived via donor insemination by lesbian and heterosexual mothers. Parenting: Science and Practice, 2, 61–76. Gartrell, N., Banks, A., Reed, N., Hamiliton Rodas, C., & Deck, A. (2000). The National Lesbian Family Study: Pt. 3. Interviews with mothers of five-year olds. American Journal of Orthopsychiatry, 70, 542–548. Gartrell, N., Deck, A., Rodas, C., Peyser, H., & Banks, A. (2005). The National Lesbian Family Study: Pt. 4. Interviews with the 10 year old children. American Journal of Orthopsychiatry, 75, 518–524. Gartrell, N., Rodas, C., Deck, A., Peyser, H., & Banks, A. (2006). The National Lesbian Family Study: Interviews with mothers of 10-year-olds. Feminism & Psychology, 16, 175–192.
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Goldberg, A. E. (2007). How does it make a difference? Perspectives of adults with lesbian, gay and bisexual parents. American Journal of Orthopsychiatry, 77, 550– 562. Goldberg, S. B. (2004). Morals-based justifications for lawmaking: Before and after Lawrence v. Texas. Minnesota Law Review, 88, 1233–1311. Golombok, S. (2000). Parenting: What really counts? London: Routledge. Golombok, S., Perry, B., Burston, A., Murray, C., Mooney-Somers, J., Stevens, M.,et al. (2003). Children with lesbian parents: A community study. Developmental Psychology, 39, 20–33. Golombok, S., & Rust, J. (1993). The Preschool Activity Inventory: A standardized assessment of gender role in children. Psychological Assessment, 5, 131–136. Golombok, S., Spencer, A., & Rutter, M. (1983). Children in lesbian and single-parent households: Psychosexual and psychiatric appraisal. Journal of Child Psychology and Psychiatry, 24, 551–572. Golombok, S., & Tasker, F. (1996). Do parents influence the sexual orientation of their children? Findings from a longitudinal study of lesbian families. Developmental Psychology, 32, 3–11. Golombok, S., Tasker, F. L., & Murray, C. (1997). Children raised in fatherless families from infancy: Family relationships and the socioemotional development of children of lesbian and single heterosexual mothers. Journal of Child Psychology and Psychiatry, 38, 783–791. Gonsiorek, J. (1991). The empirical basis for the demise of the illness model of homosexuality. In J. C. Gonsiorek & J. D. Weinrich (Eds.), Homosexuality: Research implications for public policy (pp. 115–136). Newbury Park, CA: Sage. Gottman, J. S. (1990). Children of gay and lesbian parents. In F. W. Bozett & M. B. Sussman (Eds.), Homosexuality and family relations (pp. 177–196). New York: Harrington Park Press. Green, R. (1978). Sexual identity of 37 children raised by homosexual or transsexual parents. American Journal of Psychiatry, 135, 692–697. Green, R., Mandel, J. B., Hotvedt, M. E., Gray, J., & Smith, L. (1986). Lesbian mothers and their children: A comparison with solo parent heterosexual mothers and their children. Archives of Sexual Behavior, 7, 175–181. Groth, A. N., & Birnbaum, H. J. (1978). Adult sexual orientation and attraction to underage persons. Archives of Sexual Behavior, 7, 175–181. Harris, M. B., & Turner, P. H. (1985–1986). Gay and lesbian parents. Journal of Homosexuality, 12, 101–113. Hoeffer, B. (1981). Children’s acquisition of sex-role behavior in lesbian-mother families. American Journal of Orthopsychiatry, 5, 536–544. Huggins, S. L. (1989). A comparative study of self-esteem of adolescent children of divorced lesbian mothers and divorced heterosexual mothers. In F. W. Bozett (Ed.), Homosexuality and the family (pp. 123–135). New York: Harrington Park Press. Huston, A. C. (2008). From research to policy and back. Child Development, 79, 1–12. Jacobson v. Jacobson, 314 N. W.2d 78 (N.D. 1981). Jenny, C., Roesler, T. A., & Poyer, K. L. (1994). Are children at risk for sexual abuse by homosexuals? Pediatrics, 94, 41–44.
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Johnson, S. M., & O’Connor, E. (2002). The gay baby boom: The psychology of gay parenthood. New York: New York University Press. Jones, B. M., & MacFarlane, K. (Eds.). (1980). Sexual abuse of children: Selected readings. Washington, DC: National Center on Child Abuse and Neglect. Joslin, C. G., & Minter, S. P. (2008). Lesbian, gay, bisexual, and transgender family law. Rochester, NY: Thomson West. Kirkpatrick, M., Smith, C., & Roy, R. (1981). Lesbian mothers and their children: A comparative survey. American Journal of Orthopsychiatry, 51, 545–551. Kweskin, S. L., & Cook, A. S. (1982). Heterosexual and homosexual mothers’ selfdescribed sex-role behavior and ideal sex-role behavior in children. Sex Roles, 8, 967–975. L. v. D., 630 S. W.2d 240 (Mo. App., S.D. 1982). Lane v. Lane, 2001-Ohio-8670, 2001 WL 1359784 (Ohio Ct. App. 12th Dist. Brown County 2001). Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). Money, J., & Ehrhardt, A. A. (1972). Man and woman, boy and girl: The differentiation and dimorphism of gender identity from conception to maturity. Baltimore: Johns Hopkins University Press. National Association of Social Workers. (1994). Social work speaks: NASW policy statements. Washington, DC: Author. Pagelow, M. D. (1980). Heterosexual and lesbian single mothers: A comparison of problems, coping and solutions. Journal of Homosexuality, 5, 198–204. Parks, C. A. (1998). Lesbian parenthood: A review of the literature. American Journal of Orthopsychiatry, 68, 376–389. Patterson, C. J. (1994). Lesbian and gay families. Current Directions in Psychological Science, 3, 62–64. Patterson, C. J. (1995). Families of the lesbian baby boom: Parents’ division of labor and children’s adjustment. Developmental Psychology, 31, 115–123. Patterson, C. J. (1997). Children of lesbian and gay parents. In T. Ollendick & R. Prinz (Eds.), Advances in clinical child psychology (Vol. 19, pp. 235–282). New York: Plenum Press. Patterson, C. J. (2000). Sexual orientation and family life: A decade review. Journal of Marriage and the Family, 62, 1052–1069. Patterson, C. J. (2001). Families of the lesbian baby boom: Maternal mental health and child adjustment. Journal of Gay and Lesbian Psychotherapy, 4, 91–107. Patterson, C. J. (2004). What difference does a civil union make? Changing public policies and the experiences of same-sex couples: Comment on Solomon, Rothblum, and Balsam (2004). Journal of Family Psychology, 18, 287–289. Patterson, C. J. (2006). Children of lesbian and gay parents. Current Directions in Psychological Science, 15, 241–244. Patterson, C. J. (2007). Lesbian and gay family issues in the context of changing legal and social policy environments. In K. J. Bieschke, R. M. Perez, & K. A. DeBord (Eds.), Handbook of counseling and psychotherapy with lesbian, gay, bisexual and transgender clients (2nd ed.). Washington, DC: American Psychological Association.
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Patterson, C. J., & Chan, R. W. (1997). Gay fathers. In M. E. Lamb (Ed.), The role of the father in child development (3rd ed., pp. 245–260). New York: Wiley. Patterson, C. J., Fulcher, M., & Wainright, J. (2002). Children of lesbian and gay parents: Research, law, and policy. In B. L. Bottoms, M. B. Kovera, & B. D. McAuliff (Eds.), Children, social science and the law (pp. 176–199). New York: Cambridge University Press. Patterson, C. J., Hurt, S., & Mason, C. D. (1998). Families of the lesbian baby boom: Children’s contacts with grandparents and other adults. American Journal of Orthopsychiatry, 68, 390–399. Patterson, C. J., & Redding, R. (1996). Lesbian and gay families with children: Public policy implications of social science research. Journal of Social Issues, 52, 29–50. Perrin, E. C. (1998). Children whose parents are lesbian or gay. Contemporary Pediatrics, 15, 113–130. Perrin, E. C. (2002). Sexual orientation in child and adolescent health care. New York: Kluwer Academic/Plenum Press. Perrin, E. C., & Committee on Psychosocial Aspects of Child and Family Health. (2002). Technical report: Coparent or second-parent adoption by same-sex parents. Pediatrics, 109, 341–344. Puryear, D. (1983). A comparison between the children of lesbian mothers and the children of heterosexual mothers. Unpublished doctoral dissertation, California School of Professional Psychology, Berkeley Rees, R. L. (1979). A comparison of children of lesbian and single heterosexual mothers on three measures of socialization. Unpublished doctoral dissertation, California School of Professional Psychology, Berkeley Roe v. Roe, 324 S. E.2d 691 (Va. 1985). Rubenstein, W. B. (1996). Lesbians, gay men, and the law. In R. C. Savin-Williams & K. M. Cohen (Eds.), The lives of lesbians, gays, and bisexuals: Children to adults (pp. 331–344). New York: Harcourt Brace. S. N. E. v. R. L. B., 699 P.2d 875 (Alaska 1985). Stacey, J., & Biblarz, T. J. (2001). How does sexual orientation of parents matter? American Sociological Review, 65, 159–183. Steckel, A. (1985). Separation-individuation in children of lesbian and heterosexual couples. Unpublished doctoral dissertation, Wright Institute Graduate School, Berkeley, CA. Steckel, A. (1987). Psychosocial development of children of lesbian mothers. In F. W. Bozett (Ed.), Gay and lesbian parents (pp. 75–85). New York: Praeger. Stein, T. S. (1993). Overview of new developments in understanding homosexuality. Review of Psychiatry, 12, 9–12. Tasker, F. (1999). Children in lesbian-led families: A review. Clinical Child Psychology and Psychiatry, 4, 153–166. Tasker, F., & Golombok, S. (1995). Adults raised as children in lesbian families. American Journal of Orthopsychiatry, 65, 203–215. Tasker, F., & Golombok, S. (1997). Growing up in a lesbian family. New York: Guilford Press. Tasker, F., & Golombok, S. (1998). The role of co-mothers in planned lesbian-led families. Journal of Lesbian Studies, 2, 49–68.
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CHAPTER 13
Child Custody Evaluations of Parents with Major Psychiatric Disorders MICHAEL J. JENUWINE and BERTRAM J. COHLER
C
typically involve litigants asserting negative evidence about the other parent in an attempt to gain leverage, especially when such disputes concern custody and parenting time. Feuding parents oftentimes assert, whether truthfully or not, that the other party is mentally ill and is hence less able to parent the couple’s children. Both elements of this assertion require investigation. First, does the parent actually suffer from a mental illness? Second, what effects, if any, will the illness have on that parent’s ability to care for his or her children? In this chapter we provide a context for understanding the effects of major psychiatric illness on child care, review what is known about the interplay of parenthood and major psychiatric illness, and examine the role of parental psychopathology in custody decisions. The major psychiatric illnesses discussed in this chapter are schizophrenia spectrum and mood (or major affective) disorders. Schizophrenia psychotic spectrum disorders are characterized by the presence of hallucinations, delusions, or disorganized thought and behavior lasting at least 6 months. Schizophrenia need not present as a florid disorder but may instead manifest as a kind of disengagement, with symptoms of disordered thought and reality testing evident only on professional examination. Mood disorders are characterized by pervasive, prolonged, and disabling exaggerations of mood and affect with associated changes in other psychological and physical function. Broadly, these disorders are categorized as Unipolar or Major Depressive Disorder, characterized by periods of severe depression, and Bipolar Disorder, marked by abnormal shifts in mood, energy, and ability to function. Most studies available discuss the impact of psychiatric illness on mothering. Although psychiatric illness among fathers also likely interferes with HILD CUSTODY DISPUTES
307
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parenting, empirical research on this issue is lacking. Studies on the contributions of fathers have primarily focused on normal child development (Connell & Goodman, 2002). In large part, this reflects a broader trend in which researchers have placed greater value on the role of mothers, thereby excluding fathers’ roles from examination (Lamb, 2004). The absence of studies showing untoward effects of particular psychopathology on paternal function must not be interpreted to mean that such effects are absent; rather, like many aspects of fathering, they have been inadequately studied (Cath, Gurwitt, & Munder-Ross, 1982). This gap is significant, as other research indicates that mentally ill men are sexually active, and it is highly likely that significant numbers of men with severe mental illness are fathers (Styron, Pruett, McMahon, & Davidson, 2002). In many instances, it is appropriate to extrapolate from research on mothers to caregivers generally, so that in custody evaluations similar pathology, to the extent that symptoms and any consequent limitations have an impact on the child, weighs equally for father and mother. Where psychopathology has gender-specific aspects, however, such extrapolation is not appropriate. Notwithstanding the lack of attention to the influence of mental illness on fathering, research has shown that women with mood disorders and schizophrenia spectrum disorders are more likely to assume the child care role than men, and a significant number of mothers with serious mental illness are the primary parent for their children (Montgomery, 2005; Test, Burke, & Wallisch, 1990). PARENTHOOD AND THE GENESIS OF PSYCHOPATHOLOGY Postpartum depression, marked by symptoms such as hopelessness, helplessness, irritability, and fatigue, impacts between 10% and 15% of new mothers, with a subset of those women experiencing a more severe form of psychosis following childbirth (E. Robertson, Grace, Wallington, & Stewart, 2004; Stewart, Robertson, Dennis, & Grace, 2004). The onset of postpartum depression has been linked to prenatal factors, including stressful life events, prenatal depression, anxiety, preeclampsia, premature labor, and other difficulties stemming more directly from the pregnancy and delivery itself (Tuohy & McVey, 2008). Lack of social support, including lack of support by the father or other significant person, has been found to be strongly associated with postpartum depression (Clay & Seehusen, 2004; Heneghan, Mercer, & DeLeone, 2004; O’Hara & Swain, 1996), and improved social support reduces the incidence of postpartum depressive symptoms (Amankwaa, 2003; Brugha et al., 1998). Adequate social supports for preparing to take on the new role of parent are often lacking during pregnancy (Dragonas & Christodoulou, 1998). That such a wide range of precursors to postpartum depression have been
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identified lends support to theories that the disorder commonly referred to as postpartum depression is more likely a group of disorders with differential sensitivity to these various precursors (Halbreich, 2005). Although the etiology of postpartum depression may yet be elusive, research concludes that mothers with postpartum depression are more vulnerable to chronic or recurrent psychiatric problems than mothers who do not suffer from this disorder (True-Soderstrom, Buckwalter, & Kerfoot, 1983). Research shows that the impact of postpartum depression on infants and toddlers is substantial. Infants of mothers with depression, when compared to infants of mothers who do not suffer from depression, demonstrate more negative affect, are less easily consoled, are less able to perform cognitive tasks, and show deficiencies in motor, language, and mental development (Alston & St. James-Roberts, 2005; Herring & Kaslow, 2002; Murray & Cooper, 1997). Studies report that 2- and 3-year-old children of mothers with depression demonstrate more insecure attachments; however, other research indicates that some infants and toddlers of mothers with depression in fact exhibit secure attachments as well as behaviors that may decrease the risk for later emotional problems (Herring & Kaslow, 2002; Radke-Yarrow et al., 1995). Meta-analysis of the small number of studies of long-term effects of postpartum depression on children reveals small but significant effects (Beck, 1998). Longer follow-up studies (Sinclair & Murray, 1998) show that negative effects continue at least through age 6 years. Some recent research shows that children are particularly vulnerable to mood disorders if both parents are depressed (Foley et al., 2001). These studies provide a window into the processes that impact depression and its influences on children, but they fail to consider the impact of environmental conditions that may serve to maintain and exacerbate depression. It has been shown that the study of parenting outcome among women with mental illness is confounded by social class, among other factors (Howard, Goss, Leese, Appleby, & Thornicroft, 2004). Depression, both postpartum and that associated with a major affective disorder, constitutes the most common but not the only psychiatric illness that affects parents and their ability to care for their children. Schizophrenia spectrum disorders and other psychiatric illnesses with psychotic features also affect parents and their capacity for child care. Although postpartum psychoses occur infrequently (in 1 to 2 per 1,000 women within the first 2 to 4 weeks after delivery), they illustrate the extreme emotional burdens that can accompany childbirth (Bagedahl-Strindlund, 1986; Buist, Dennerstein, & Burrows, 1990; Sit, Rothschild, & Wisner, 2006; Thiels & Kumar, 1987). Some postpartum psychoses include delusional content related to childbirth, confusion, and mania (Beck, 1991). Again, less research is available on men with psychotic disorders and how those psychoses affect parenting. Though the occurrence of postpartum psychotic disorders in men is even rarer, it has been
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documented. Apfel and Handel (1993) have discussed the complex issue of the more rarely occurring development of transitory psychotic episodes in men with the advent of fatherhood. Posttraumatic Stress Disorder is also observed in new parents, especially following difficult births or very-low-birth-weight births (Kersting et al., 2005; Reynolds, 1997). The disparity in the amount of research on the influences of mental illness on the parenting qualities of men and women is perhaps better explained in the case of parents with severe and persistent mental illness. Among women, major psychopathology is less likely to preclude becoming a parent than it is for men. Because courtship and marriage involve some degree of social assertiveness, episodically or persistently psychiatrically ill men are unlikely to have the social skills needed to sustain a relationship leading to marriage and a family (Glick, 1997; Zigler & Glick, 1986; Zigler & Phillips, 1961, 1962). Similarly, because severely psychiatrically ill men are less likely to become parents than are women with similar levels of disturbance, less is known about the impact of paternal psychiatric illness on the family and child care than is known about the effects of similar maternal pathology. Studies of the impact of paternal major mental illness on offspring have historically been anecdotal clinical reports (Apfel & Handel, 1993; Wainwright, 1966). Although recent research indicates that women diagnosed with Schizophrenia and psychotic disorders have a lower fertility rate, the majority of women diagnosed with a psychotic disorder become mothers, and a large number remain involved in the care of their children (Howard et al., 2004; Howard, Kumar, Leese, & Thornicroft, 2002). It is hypothesized that in many cases women marry and have children but succumb to a first episode of psychiatric illness during the expectably stressful first years of parenthood. The stress associated with various phases of parenting, such as dealing with difficult adolescents, may subsequently precipitate psychiatric illness in individuals with different vulnerabilities. Women with mental illness are faced with the additional issue of adjusting their psychotropic medications during pregnancy. The ability to control a woman’s psychiatric symptoms with medication during pregnancy poses a unique challenge. Prescribing physicians must carefully strike a balance between the risk to the fetus and the risk of relapse during pregnancy and postpartum (Yonkers & Little, 2001). PARENTHOOD AND CONTEMPORARY SOCIETY THE ADVENT
OF
PARENTHOOD
AS A
CRISIS
American culture is unique in maintaining that the child’s present and future adjustment are determined by parental personality and child care as well as in the worry and guilt that parents express about parenting (Fischer & Fischer,
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1963; LeVine & White, 1987; Minturn & Lambert, 1964). The enormous number of books and intense media attention focused on parenting are witness to the fact that these beliefs pose a strain on parents (Clarke-Stewart, 1978). In the past 3 decades, parents have suffered additional strain with the intense reconsideration of gender roles and increasing demands that both parents join the workforce. Today a majority of mothers of preschool children have at least part-time work. Many parents, especially mothers, experience strain and overload as they attempt to care for children, create substantial incomes, and fill often unclear social roles with spouses. Virtually all evidence to date shows marked gender differences in mood and adjustment in adult life. Women report lower mood than men from adolescence through midlife, but particularly during the years of family formation and active parenting of young children (Andrews & Withey, 1976; Campbell, Converse, & Rodgers, 1976; McLanahan & Adams, 1987; Petersen, 1988; Petersen, Sarigiani, & Kennedy, 1991; Thoits, 1986). This gender difference is in large part accounted for by the position of women in contemporary society, juggling conflicting demands on their time and energy (Hagestad, 1974). Women’s lives are more disrupted by marriage and parenthood than are the lives of men (Hogan, 1980, 1984; Marini, 1978, 1984; Waite & Moore, 1978). Men enjoy relatively continuous careers, but women are forced to enter and leave the labor force according to the demands of their husband’s career and the demands of child care. Gutmann (1975, 1987) suggests that regardless of preparenthood careers, becoming a parent creates a feeling of crisis that increases men’s concern with the economic-instrumental role in the family, whereas women become more involved with child care, housework, and tending to emotional expressive needs in the family. When the husband has problems at work, he takes his problems home to his wife. Although the wife’s support and understanding soothes the husband, these problems are then assumed by the wife, who then suffers from her husband’s work problems (Brown & Harris, 1975; Siassi, Crocetti, & Spiro, 1974). In her discussion of gender socialization in contemporary society, Chodorow (1978) suggests that boys are socialized to become men, whereas girls are socialized to become mothers. Chodorow believes that this pattern could be altered if men and women shared equally in child care tasks. Despite rhetoric to the contrary, there appears to have been little change in the distribution of tasks in the family during the past half-century. Women continue as kin-keeper, responsible for managing relations within the family and across generations, whereas men view their role as that of provider (Bardwick & Douvan, 1971; Bart, 1971; Bernard, 1975; Chodorow, 1978; Firth, Hubert, & Forge, 1970). Only during midlife, with the end of active parenting, are women again able to return to school or work on a full-time basis in the
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way they were able to before becoming mothers and enjoy participating in the larger society in the same way as men. This description of ‘‘settled adulthood’’ in part explains the difference in rates of depressive illness in men and women. Reviews of the literature on gender and mood in adult life, based on both biological and psychosocial evidence, agree that the lowered morale reported among women results from the course of their adult lives and is not biologically inherent (Angold & Rutter, 1992; Goldman & David, 1980; Gove & Tudor, 1972; McGrath, Keita, Strickland, & Russo, 1990; Thoits, 1986; Weissman & Klerman, 1978). Further contributing to the higher rate of depressive illness in women is the interdependence that characterizes the lives of women from adolescence through adulthood (Gilligan, 1983; Gilligan, Lyons, & Hanmer, 1990), which is inconsistent with the self-reliant mode of success widely touted as the American ideal. Over time, many women in our society experience a sense of futility, akin to ‘‘learned helplessness’’ (Seligman, 1974, 1975), and so feel lowered morale and depressed mood. Belsky and his students (Belsky, 1984; Belsky & Vondura, 1989) note the complex interplay of the social context of parenthood, including the parents’ portfolio of roles and life experiences, in determining the response to caring for offspring generally and caring for a particular child from the moment of conception to the parents’ relationship with their adult children. A child who is difficult to quiet poses different issues for parents from one who is easily calmed. So simple a matter as the child’s sleep pattern can make huge differences in the level of parental stress, especially when parents must get up for a full day of work at a specified time. Additionally, as the child moves through developmental phases, the parent’s own conflicts and experiences from those periods are likely to be reawakened so that ‘‘ghosts (of parents’ own past) in the nursery’’ are likely to become important factors in parenting (Benedek, 1959/1973; Frailberg, Adelson, & Shapiro, 1975). PARENTS
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Given the strain associated with motherhood and the importance of motherhood to many women’s identity (Belle, 1980), it is not surprising that issues of parenting are intertwined in the conflicts leading to episodes of major mental illness in women from adolescence to midlife (Gove, 1972; Gove & Tudor, 1972; Radloff, 1975; Thoits, 1986). Conversely, when men are hospitalized for episodes of major mental illness, these episodes are usually associated with work and marriage and much less often with fatherhood and conflicts about child care. This difference reflects gender differences in the salience of adult roles and the less significant immersion of fathers in child care (Rodnick & Garmezy, 1957).
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Chesler’s (1991) case examples suggest that courts dealing with child custody see maternal psychiatric illness as more likely to affect child care and view allegations of mental illness in women much more adversely than comparable allegations about men, assuming the mother is the primary caregiver. Mental illness complicates parenting, leads to a series of adverse changes for both the psychiatrically ill parent and other family members, and poses challenges for research, service, and social policy. Many mothers with serious mental illness must manage their illness and the challenges of child rearing with very limited supports (Mordoch & Hall, 2002). Mothers with mental illness typically contend with poverty, stigma, poor living conditions, lack of adequate support, and medication side effects, not to mention the symptoms of their mental illness and the continual fear of losing their children to child protection authorities (Montgomery, Tompkins, Forchuk, & French, 2006). Families affected by maternal mental illness have a higher risk of marital discord, social isolation, and financial problems (Beardslee, Versage, & Gladstone, 1998). Research suggests that the stresses of parenting may exacerbate mental illness and so further interfere with parenting (Zemencuk, Rogosch, & Mowbray, 1995). One of the best predictors of a mentally ill mother’s ability to function in the community is the existence of current psychiatric symptoms (Bybee, Mowbray, Oyserman, & Lewandowski, 2003). However, the symptoms of mental illness are not resolved by simply relieving these parents of their responsibility as parents. For many reasons increased effort must be devoted to care and support of the parenting role for parents with mental illness. Although the prevalence of motherhood among women with mental illness remains difficult to determine, women with psychiatric illness remain sexually active and not only have relatively normal fertility rates, but in some studies have been found to have more children than their psychologically well counterparts (Bybee et al., 2003; Coverdale & Aruffo, 1989; Rudolph, Larson, Sweeny, Hough, & Arorian, 1990; Saugstad, 1989). Pregnancies are unplanned for approximately half of chronically mentally ill mothers (Buist et al., 1990; Forcier, 1990; Zemencuk, Rogosch, & Mowbray, 1995). Related to these facts, and perhaps more important, mothers with mental illness see motherhood as a normalizing experience that connects them with others and gives them a legitimate purpose in society (Nicholson et al., 2006). In fact, some have suggested that the role of mother may be one of the only legitimate functions a woman with mental illness may feel she can serve in our society (Cogan, 1998; Montgomery, 2005). In one study, mothers with serious mental illness described their efforts to have meaningful relationships with their children as providing a sense of being normal, secure, and responsible (Montgomery, 2005). Furthermore, having contact with her children can serve as a positive motivator for the mother with mental illness and can
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enhance parenting quality (Oyserman, Mowbray, & Zemencuk, 1994). Mothers with mental illness who lose custody of their children often continue to struggle with issues around those losses for decades; in some cases, psychiatric symptoms worsen following removal of children, with subsequent amelioration of symptoms upon reestablishment of contact between the mother and her children (Schen, 2005). Ackerson (2003) noted that the literature on parents with mental illness fails to discuss the strengths many of these parents bring to managing their illness while caring for their children. By focusing only on shortcomings, research has made little effort to show the potential parenting capabilities of parents whose mental illness is properly managed. Despite the temporary inability to parent during periods of incapacity, many adults with mental illness likely have much to offer as parents and with the proper supports could cope with their illness much the same as parents with physical disabilities do. Despite this, women with serious mental illness are at heightened risk of losing responsibility for their children’s care (Ackerson, 2003; Hollingsworth, 2004). In many jurisdictions a diagnosis of mental illness can result in an expedited loss of custody and subsequent termination of parental rights (e.g., Cal. Welf. & Inst. Code 261.5; Hollingsworth, 2004). A presumption that a mother with mental illness is unfit oversimplifies the complexity of the life circumstances of these women and creates the hasty conclusion that her children are automatically in need of protection (Montgomery, 2005). A long-term study of mothers with severe and persistent mental illness found that the likelihood of a mother losing custody of her children was greatest when those women had more children, had fewer resources, and lacked adequate knowledge about parenting. In terms of diagnosis, the women who lost custody did not differ from those who retained custody (Hollingsworth, 2004). The majority of mentally ill mothers lose custody of their children even though a great number of mentally ill women could be successful parents if adequate support programs were available (Bazar, 1990; Coverdale & Aruffo, 1989; Miller, 1990; Spielvogel & Wile, 1986). The parenting problems suffered by mentally ill mothers are likely due in part to their own lack of parental role models during childhood. Zemencuk et al. (1995) found that fewer than half of the mentally ill mothers they studied lived with both parents while growing up, and that nearly one-third had been separated from their mother before adolescence. Test and Berlin (1981) stress the importance of providing chronically mentally ill mothers with opportunities to learn specific child management skills. Although research has found that mothers with serious mental illness have fewer parenting skills, not all parents with mental illness exhibit the same deficits in parenting (Oyserman, Mowbray, Allen-Meares, & Firminger, 2000; Rogosch, Mowbray, & Bogat, 1992). The parenting education programs that exist are typically ill-suited for mothers with mental illness. Most programs fail to address the needs specific
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to mothers with mental illness, and stigma combined with poor motivation may inhibit their participation (L. J. Thomas & Kalucy, 2003). Although some women with mental illness exhibit difficulties parenting or lack motivation, most are amenable to interventions that directly address their limitations as parents (Oyserman et al., 2000; Reupert & Maybery, 2007). In one study, a woman’s recent contact with psychiatric services was a significant predictor of parenting difficulties (Howard et al., 2004). This cannot, however, cause one to conclude that all women needing psychiatric services following childbirth are not capable of adequately mothering their children. Rather, this likely means that the symptoms of mental illness were more active in these women, thus bringing them to the attention of child social service providers. As is the case in society at large, it has been suggested that the parenting skills of individuals with a psychiatric diagnosis range ‘‘from excellent to maltreating’’ (Mullick, Miller, & Jacobson, 2001, p. 489). With appropriate interventions, many women with a variety of psychiatric diagnoses may become capable of close, interdependent relationships with their children and experience child rearing as rewarding in spite of its typical demands (Ackerson, 2003; Mowbray, Oyserman, Zemencuk, & Ross, 1995). Additionally, mothers with mental illness who assume a caretaking role toward their children may be more highly motivated to participate in treatment than mentally ill individuals who are not parents (Ackerson, 2003; Reupert & Maybery, 2007). It is unclear what proportion of women lose custody of their children as a consequence of their mental illness. Whatever the reality may be, the perception among mentally ill mothers that they may lose custody or parenting time with their children actually increases psychiatric treatment compliance (Busch & Redlich, 2007). By refocusing treatment on the totality of a mentally ill mother’s life situation rather than narrowly on her illness, targeted interventions can utilize each woman’s unique strengths and ultimately improve her ability to respond to the needs of her children, while nurturing her sense of self and well-being (Montgomery, 2005). THE IMPACT OF PARENTAL MENTAL ILLNESS ON CHILDREN: GENERAL CONSIDERATIONS Although the problem of psychiatric illness accompanying childbirth were familiar to the physicians of the seventeenth century (Grunebaum, Weiss, Cohler, Hartman, & Gallant, 1982), the impact of these disturbances on children has been studied only recently. Following World War II numerous investigations documented the impact of child care on intellectual and emotional development. Systematic studies of infancy and early childhood focusing on variations in early care, such as contrasting children raised in group
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homes with family-reared children (Freud, 1973; Freud & Burlingham, 1944/ 1974; Spitz, 1945), experiences of new mothers with their infants (Levy, 1958), family-reared children confronted with the temporary absence of parents related to the birth of a sibling (J. Robertson & Robertson, 1969), early parental death (Garber, 1981; Wolfenstein, 1966), or even temporary parental preoccupation (Carr & Leared, 1973; Cohn & Campbell, 1992; Cohn & Tronick, 1983; Emde & Source, 1983; Stern, 1985, 1991; Tronick & Gianino, 1986) converged to confirm earlier anecdotal reports of the profound effect of parenting on children. A major theme in child development research has been the recognition that the capacity of adults to function reasonably comfortably without immediate support from others rests on the adequate availability of caregivers during infancy and early childhood (Ainsworth, Blehar, Waters, & Wall, 1978; Bowlby, 1983; Bretherton & Waters, 1985; Mahler, Pine, & Bergman, 1975). Therefore separations, such as those accompanying maternal physical or psychiatric illness, are likely to be of particular significance. Additionally, studies of mentally ill mothers have determined that these women experience other risk factors likely to compromise their parenting ability (Zemencuk et al., 1995). These factors include poor education, falling socioeconomic status, few social supports, having given birth at an early age, being unmarried, and having a history of multiple hospitalizations. These factors are further exacerbated by a history of sexual abuse and exposure to violence, substance abuse, raising a child alone, homelessness, poverty, and state scrutiny with threat of the loss of child custody (Cogan, 1998; Montgomery, 2005). The picture is not entirely negative, however. The majority of severely psychiatrically ill mothers have adaptive ideas about parenting that can be supported and strengthened (Reupert & Maybery, 2007; Zemencuk et al., 1995). Generally, living in a stable family and having continuity of care are important for positive child development. When mothers are hospitalized for episodes of psychiatric illness, this disruption in continuity creates a crisis. Family life and caregiving are first disturbed by the appearance of symptoms and then by the mother’s disappearance into the hospital. Even a single such hospitalization creates problems for the family (Reiss, Steinglass, & Howe, 1993). If the hospitalization achieves even limited therapeutic goals, such as preventing additional hospitalizations, cementing the parent’s relationship with a therapist, and adjusting medication, then the benefits for patient and family might outweigh the costs in terms of family life disruption. However, changes in delivery of mental health services over the past 3 decades have led to a pattern of successive short-term, crisis-oriented, palliative hospitalizations that often ensure only that subsequent hospitalizations will further disrupt family relations and child care. The repeated hospitalization of psychiatrically ill mothers may lead children to become preoccupied with
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concerns regarding both their mother’s welfare and their own care (Strohm, 1993). For example, one sixth-grade girl reported that she worried every day whether her repeatedly hospitalized mother would still be at home when she came home from school in the afternoon. Husbands of mentally ill women who are repeatedly hospitalized may become disgusted and seek marital dissolution (Grunebaum, Gamer, & Cohler, 1983). These findings suggest the importance of planning programs for sustaining care that might provide enhanced support and assistance for parents formerly hospitalized for psychiatric illness (Grunebaum et al., 1982). Recognizing that the psychiatric illness of one member of a family affects every member of the family (Bell, 1968; B. Cohler, 1983; Pruchno, Blow, & Smyer, 1984; Spiegel, 1971; Vogel & Bell, 1960), it is necessary to consider the larger family constellation in planning programs designed to maintain troubled parents and their families in the community. By categorizing children of mentally ill parents either as those who develop their own psychiatric issues or those ‘‘superkids’’ who somehow survive childhood to become mentally stable individuals, researchers have failed to explore the vicissitudes of life of children raised by parents with mental illness. Some have argued that rather than seeing the children of persons with mental illness as at risk for eventually developing their own mental illness, research should focus on viewing these children in the context of their competencies and complexities in addition to possible vulnerabilities (Gladstone, Boydell, & McKeever, 2005). This more phenomenological approach suggests steps outside of the dichotomous way of viewing these children as either at risk or resilient and suggests that research into what it means to be a child of a parent with mental illness is absent in the literature. The field of family therapy has heretofore neglected research into the needs of and potential treatments for children of parents with mental illness (Reder, McClure, & Jolly, 2000). How much parental psychopathology interferes in responding to children is still unclear. Earlier discussions of this issue, based on a ‘‘critical period’’ model (Freedman, 1974; Hess, 1959; Hinde, 1963, 1966; Lorenz, 1937/1957), assumed that both adverse life changes, such as the mother’s temporary absence due to psychiatric hospitalization, and subtle parental empathic failure accompanying exacerbation of symptoms would have particularly significant negative impact on the emerging parent-child tie because there are periods of particular vulnerability or sensitivity for later personality development during early childhood. Although this view gained some support from animal and human studies (Bowlby, 1983) and still has a few adherents (Klaus & Kennel, 1976), longitudinal study (Clarke & Clarke, 1976; Kagan, 1980) strongly indicates that critical periods do not play a major role in human development. Rutter (1972), examining the literature on maternal
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deprivation, reports that the effects of such deprivation are not as devastating as first claimed, and Lennenberg (1967) showed that the critical period hypothesis applies to a limited range of cognitive developments. The critical period hypothesis appears to apply to only a narrow range of human behaviors (Colombo, 1982). Another implicit theory that emphasizes the negative impact of parental psychopathology on children assumes an essentially forward transmission of influence from parent to child, independent of the child’s impact on parenting. This model probably overestimates parental contributions to the child’s personality development and adjustment. More contemporary views emphasize that from earliest infancy children have qualities of their own that do not result from interactions with the parents and that, in many instances, may shape how parents deal with them (Chess & Thomas, 1987; A. Thomas & Chess, 1977). Following the discovery of the profound impact of interrupted or disturbed relations with caretakers on child development, investigators assumed that symptoms of major mental illness, including thought disturbance and inappropriate expression of affect, together with the disruption inevitably following psychiatric hospitalization, was noxious for the child’s development. Supporting evidence emerged in clinical studies of children whose mother experienced a transitory hospitalization for physical illness or due to the birth of a younger brother or sister, and from early study of the infants of parents showing major psychopathology (focusing largely on parental inadequacy in providing care). Lichtenberg & Pao (1960) provided a clinical report on the development of the offspring of five persistently ill schizophrenic mothers. Sobel (1961) noted anecdotally that children of persistently troubled schizophrenic mothers appear to fare better in foster care than at home. He observed depressive symptoms and depressive-equivalent symptoms such as sadness, hyperactivity, and irritability among those infants cared for at home by their own mother. Grunebaum and coworkers (1982), reviewing findings of clinical investigators, found reports of developmental delay and distress among children cared for at home by their psychiatrically ill parents. In particular, as Anthony (1968, 1969) and Garmezy (1971) reported, young children of psychotic mothers might be socialized into the misperception of reality, ultimately adopting their parent’s psychotic adaptation as their own lived experience. These clinical observations and inferences led to more systematic study of the children of severely psychiatrically disturbed parents. Findings from a complex Scandinavian study matching parental psychiatric hospitalizations and records of birth of offspring (B. Mednick, 1973; S. Mednick, Parnas, & Schulsinger, 1987; S. Mednick & Schulsinger, 1968) suggested that late adolescent and adult offspring with one schizophrenic parent showed
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psychopathology in larger numbers than their peers without this risk factor. These investigators assumed that genetic transmission and life circumstances combined to put the offspring of schizophrenic parents at greater risk for major psychopathology than their counterparts from families in which both parents were psychologically well. For Schizophrenia investigators concerned with better understanding the origin and course of schizophrenic illness, S. Mednick and Schulsinger’s (1968) report suggested that it might be possible to prospectively study the origin and course of Schizophrenia among the offspring of at least one schizophrenic parent more economically than by screening a large number of persons in the population for a syndrome that is found in about 1% of the population. Over the next decade, additional study of schizophrenic parents and their young offspring began in the United States and the United Kingdom (Watt, Anthony, Wynne, & Rolf, 1984). Reports from these studies were ambiguous. Depending on the age of the child, parental diagnosis, number of parental psychiatric hospitalizations, and outcome measures used, there was considerable variation in risk. Because genetic factors operate over a lifetime, it is not surprising that short-term longitudinal studies would not show much impact from these factors (Hanson, Gottesman, & Heston, 1976, 1990). They show that the young children of one parent occasionally hospitalized for a schizophrenic episode have few differences from children of well counterparts (Grunebaum et al., 1982). In fact, Kauffman, Grunebaum, Cohler, and Gamer (1979) reported that the most creative children were those of schizophrenic mothers, whereas the children of depressed parents showed the greatest developmental interference. Where differences appear among children of schizophrenic mothers, as contrasted with children of psychologically well mothers, these differences may not be the direct result of the parent’s illness. Instead there may be a consequence of living in socially disorganized families, repeated parental hospitalizations, unstable living arrangements, poverty, and parental substance abuse. When the neglect of these children is sufficiently severe, child welfare agencies may intervene, removing them from the home. Even though it may be necessary, removal inevitably disrupts the child’s life and poses additional difficulties for those who may already be vulnerable. These children often fit well in a category described by Fish (1987) and her colleagues as ‘‘pandysmaturation’’: children with enhanced genetic loading and constitutional vulnerability leading to limitations on coping ability, pre- and perinatal birth complications, a history of abuse and neglect within a socially disorganized family and neighborhood, wretched poverty, and repeated parental absence due to hospitalizations or prison terms. Fish’s work suggests that the impact of genetically determined risk may be intensified by particularly adverse life circumstances. Thus studies showing that being raised by a
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schizophrenic parent increases children’s vulnerability to severe psychiatric illness and other conditions need to be examined to ensure that other, associated factors are not the major determinants of disturbed development. Children with greater family and neighborhood stability show less adverse response to parental psychopathology and occasional parental hospitalizations. In fact, regardless of the parent’s diagnosis, whether a child of a parent with mental illness shows evidence of his or her own psychiatric disturbance is largely moderated by the level of family stress (Tebes, Connell, Ross, & Kaufman, 2005). Despite difficulties, these children are able to realize significant achievements (Anthony, 1974, 1976; Anthony & Cohler, 1987; B. Cohler, 1987; B. Cohler, Stott, & Musick, 1995; Garmezy, 1981, 1987; Luthar & Zigler, 1991; Masten, 1985; Masten, Best, & Garmezy, 1990). Although sufficiently noxious influences can lead to more or less lasting disruptions in development, the impact of this adversity has not been found to be as severe, or as lasting, as expected (Clarke & Clarke, 1976; Emde, 1984; Garmezy, 1984; Kagan, 1980; Werner & Smith, 1982). Given adequate resources, children often find ways of coping with parental psychopathology and may even be moved to unusual achievement in the process. Anthony (1976) notes that Piaget’s mother was episodically psychiatrically ill. He suggests that this disturbance strengthened Piaget’s determination to remain passionately committed to reality and to the study of the attainment of adaptation to reality. On a more mundane level, some children whose parents are episodically psychiatrically ill live in communities where there are resources for children outside the home and are able to take advantage of Scouting, afterschool sports programs, or even part-time work, and thus are able to avoid the home and also to enjoy an enhanced sense of personal competence. RISK AND VULNERABILITY AMONG OFFSPRING OF PSYCHIATRICALLY ILL PARENTS The impact of parental psychiatric hospitalization has been investigated from the point of view of how it affects children’s socialization within the family. Early studies concerned the impact of parental rehospitalization on marriage, as well as the interactions between parent and child (Clausen & Yarrow, 1955). Assuming that all of the impact went from parents to children, these investigators found that the family turmoil due to eruptive symptoms characteristic of parental mental illness, the child’s age, and the timing of separations were all factors contributing to negative impact on the child. A powerful group of studies that led to particular concern that parental pathology might permanently harm children’s psychological development came from research on severely disturbed adults. These studies seemed to indicate that certain patterns of parental communication and psychopathology
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literally drove children crazy. Some studies of young adult schizophrenic patients showed that the child’s psychiatric illness was associated with an extreme form of deviant communication patterns within the family and concluded that the illness resulted from that deviant communication pattern (Wynne, Singer, Bartko, & Toohey, 1977). However, these studies did not directly address the direction of causation. Further study, in fact, suggests that the communication problems result because potentially or actually disturbed children teach their parents to think in a disordered mode (Cook & Cohler, 1986). Equally likely, problems in the child’s adjustment lead to anxiety within the family, which in turn reduces clarity of transactions between troubled children and their parents. Little is known about the child’s response to life changes during the period immediately prior to parental hospitalization or of techniques used by children to cope with this adverse life event. Further, although toddlers would appear to be most adversely affected by separation due to maternal hospitalization (J. Robertson, 1962; J. Robertson & Robertson, 1969), there has been little systematic study of the association between the child’s age or sex at the time of separation due to maternal psychiatric hospitalization and the consequent response to the separation. Because adverse life events have an impact on the interdependent lives of family members (B. Cohler, 1983; Pruchno et al., 1984), parental hospitalization also affects the larger family unit. Little is known about how variations in substitute care provided by grandparents and others might mitigate the impact of such hospitalizations. These adults likely serve a more important role than merely providing substitute care. The value of having a warm, caring, concerned adult present in the child’s life, even if that person is relatively uninvolved, should not be underestimated. This is particularly true when the adult functions to help the child appraise stressful events in his or her life (Cooklin, 2006; Quinton, Rutter, & Gulliver, 1990). Those children able to create supportive relationships with other adults, as well as those who develop an accurate explanation of their parent’s mental illness, fare better in dealing with the consequences of that illness (Cowling, 1999; Falcov, 1999). A child’s ability to develop this type of relationship with a grandparent, however, may be confounded by the adult’s feelings of guilt and personal distress inevitably associated with hospitalization of his or her offspring for psychiatric illness. SCHIZOPHRENIC PARENTS AND THEIR OFFSPRING Initial reports by Mednick and his colleagues suggested that as many as half of the offspring of schizophrenic parents showed personality disorders by adolescence, although relatively few showed evidence of Schizophrenia. Based on brief sketches of these supposed disorders, it is not clear whether
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these adverse outcomes are substantially different from the problems seen in the population at large. In a Finnish adoption study, the incidence of Schizophrenia among those biological children of mothers who suffered from Schizophrenia who were then adopted was similar to that of those who stayed with their mother (Tienari et al., 1987, 2004; Wynne et al., 2006). However, once the family environment of the adoptive homes and the quality of relationships was taken into consideration, the incidence of Schizophrenia among the adopted children was comparable to the incidence in the general population. Other investigators of children of parents with Schizophrenia have been more concerned with group differences in psychological functioning than with rates of psychiatric illness. Early studies of offspring of troubled parents showed not only that children of schizophrenic parents had more global psychopathology than children of psychologically well parents, but also that differences in such diverse areas as apparent neurological deficit, attention, and emotional capacity to resonate affectively with the mother appear very early in life (Fish, 1984; Sobel, 1961), although the findings about attention turn out to be questionable (Lewine, 1984). In fact, much of the research on offspring of parents with Schizophrenia has significant methodological problems. Virtually all research in this area shows some loss in the cognitive and psychosocial functioning of children of mothers diagnosed with Schizophrenia, generally as contrasted with children whose mothers have never sought psychiatric treatment. However, when these offspring are contrasted with children whose parents have been diagnosed with some other form of major psychopathology, such as an affective disorder, and hospitalized for periods of time, the increased psychopathology shown by the offspring of schizophrenic parents is less striking. It thus becomes difficult to differentiate the impact of the parents’ particular illness from the general effects of crisis and disruption. For example, problems in deploying and sustaining attention were once believed to be the cardinal characteristics of Schizophrenia as a clinical entity and were found among the children of schizophrenic parents (Asarnow, Steffy, MacCrimmon, & Cleghorn, 1977; Neuchterlein, 1983; Steffy, Asarnow, Asarnow, MacCrimmon, & Cleghorn, 1984). Subsequently, however, they were also found among children of parents with Unipolar and Bipolar Disorders (B. Cohler, Grunebaum, Weiss, Gamer, & Gallant, 1977; Lewine, 1984; Neale, Winters, & Weintraub, 1984). With these qualifications, particularly as contrasted with children of psychologically well parents, children of schizophrenics show some increased sensitivity to be distracted, show increased sensitivity and overresponding in tasks involving stimulus selection in attentional tasks or autonomic conditioning, and decrement in intelligence. In early infancy, children of schizophrenic mothers show problems in forming a close tie, but again, this may
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reflect disruption of caretaking (Grunebaum et al., 1982) as much as early evidence of impairment in the capacity for relationships. Problems in cognitive development may also be reactive to disruptions in caretaking engendered by parental psychosis rather than evidence of the transmission of a particular form of irrationality and nonattentiveness to the environment characteristic of Schizophrenia (Lidz, Fleck, & Cornelison, 1965; Wynne et al., 1977). Considering the school-age children of schizophrenic parents, much of the work to date has concerned adjustment in the classroom and acceptance by peers, with most studies showing little difference between children of schizophrenic and well parents. Consistent with previous findings on the childhood of later schizophrenics (Watt, Stolorow, Lubensky, & McClelland, 1970), the vulnerability of children of schizophrenic parents is more marked in terms of aggressive behavior rather than of social withdrawal (Rolf, Crowther, Teri, & Bond, 1984; Rolf & Hasazi, 1977; Watt, Grubb, & Erlenmeyer-Kimling, 1982). Where this aggressive behavior is seen, particularly among boys, who appear more vulnerable than girls to the effects of discontinuity in child care (Elder, 1979), this increased aggression is associated with an increased sense of social isolation from peers. However, these findings on adjustment problems among offspring of schizophrenic parents may also be accounted for by differences in parental social class and in problems in the use of intellectual abilities, reactive to long-standing parental psychopathology and accompanying social disorganization within the family, regardless of type of parental psychopathology. To date, with the exception of Mednick’s pioneering Scandinavian studies, there has been little opportunity to follow children of schizophrenic parents forward into adulthood. Although expectations of major psychopathology among children of schizophrenic parents range to as high as 50%, Bleuler’s (1978, 1984) own reports suggest that only about 10% of these offspring become schizophrenic, about what would be expected on the basis of genetic loading alone. Overall, as both Lewine (1984) and Watt et al. (1984) conclude on the basis of the review of findings across a number of studies, there is little evidence to point to specific effects on child development resulting from living in families with a schizophrenic parent. PARENTS WITH BIPOLAR AND UNIPOLAR DEPRESSION: PARENTAL PREOCCUPATION AND CHILD DEVELOPMENT Although not as thoroughly studied as children of schizophrenics, children of parents with major affective disorders are at increased risk for developing psychological disorders (Weissman, Warner, Wickramaratne, Moreau, &
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Olfson, 1997; Wickramaratne & Weissman, 1998). Children of depressed parents, however, are not all at risk. Research has shown that many of these children exhibit cognitive dysfunction and lowered mood (Beardslee, Bemporad, Keller, & Klerman, 1983a; Keller et al., 1986; Petterson & Albers, 2001; Reid & Morrison, 1983). To ascertain the likelihood that the child will have a poor adjustment, it is essential to determine to which specific risk factors the child has been exposed (Ellis, Zucker, & Fitzgerald, 1997; Fergusson & Lynskey, 1996). To more fully ascertain the child’s true risk, factors specific to the parent’s diagnosis, such as severity and chronicity of depression, must be considered as well as the presence of any comorbid diagnoses, including an anxiety disorder or alcohol dependence (Blazer, Kessler, McGonagle, & Swartz, 1994; Hammen, 1997). External factors must also be considered, including poverty, parental divorce, and mental health diagnoses of the other parent (Connell & Goodman, 2002; Foley et al., 2001; Rutter & Quinton, 1984). Few studies of the impact of parental depression on children have considered whether any episodes of the illness actually occurred within the life of the child (Brennan, Hammen, Katz, & LeBrocque, 2002). The mental health of children of mothers with depression may have as much to do with the mother’s choice of paramour as with the specific symptoms she exhibits. Mothers with chronic depression tend to partner with men who exhibit antisocial behavior (Marmorstein, Malone, & Iancono, 2004). These antisocial characteristics in parents were found to independently contribute to the likelihood that both teenage boys and girls in these families would develop a significant depressive disorder or Conduct Disorder. Similarly, children of mothers with comorbid diagnoses of depression and Antisocial Personality Disorder are significantly more likely to exhibit symptoms of Conduct Disorder, and are also more likely to be physically mistreated, to be exposed to domestic violence, and to be the target of their mother’s hostility compared to mothers with depression alone or mothers with only Antisocial Personality Disorder (Kim-Cohen, Moffitt, Taylor, Pawlby, & Caspi, 2005). The study of children of parents with a mood disorder has shifted in the direction of more detailed focus on mechanisms of transmission of mood from parent to offspring in relation to attunement and attachment (Cicchetti, Rogosch, & Toth, 1997; Field, 1984, 1992; Tronick & Gianino, 1986). Questions such as whether being raised by a parent with an affective disorder raises the likelihood of suffering from such a disorder have been less thoroughly explored, although researchers have studied the epidemiology of the relationship of parental and offspring mood disorder, focusing on signs of lowered mood, or a depressive equivalent such as delinquency, substance abuse, and other forms of sensation seeking, in determining the impact of parental disturbance on offspring adjustment (Weissman et al., 1984).
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Studies of children through early adolescence show that at least three important factors increase the impact of parental depression on the child’s adjustment. Parental mood disorder is much more difficult for children to recognize and understand than the more bizarre and deviant symptoms of Schizophrenia. In addition, children of depressed parents often feel responsible for their parents’ mood disorder. Further, the often less dramatic quality of affective symptoms, compared with schizophrenic symptoms, joined with the tendency of depressed individuals to withdraw from social contact makes it even more difficult for children of depressed parents to differentiate parental illness from their own failings. Parental mood disorder has been shown to have both immediate and longterm adverse consequences for the child’s development, even in the absence of other adversity. A large number of studies reviewed by Beardslee et al. (1983a) and Keller et al. (1986) show the high rate of concordance between parental and offspring diagnosis of Unipolar Depression. A large number of studies have shown the dramatic impact of maternal depression on the development and present adjustment of offspring (Alpern & Lyons-Ruth, 1993; Bettes, 1988; Breznitz & Sherman, 1987; B. Cohler, Gallant, Grunebaum, & Kaufman, 1983; Conners, Himmelhock, Goyette, Ulrich, & Neil, 1979; McKnew, Cytryn, Lamour, & Apter, 1982; Ghodsian, Zajicek, & Wolkind, 1984; McKnew, Cytryn, Efron, Gershon, & Bunney, 1979; Weissman et al., 1987). To the extent that the mother, usually the principal caregiver, is depressed, preoccupied, and withdrawn during the first years of the child’s life, the child may experience this maternal unavailability as a personal failing. This may lead to the lifelong experience of deficit in capacity to soothe tensions and manage transactions with the world (Carr & Leared, 1973; B. Cohler, 1980; Galatzer-Levy & Cohler, 1993; Kohut, 1971, 1977; Kohut & Wolfe, 1978; Winnicott, 1960). This deficit later leads to a sense of depletion and despondency, and the child may try sensation seeking and other activities designed to create even the momentary sense of stimulation and aliveness. Burdened by conflicting demands for housework, child care, and even part-time work, many mothers of young children in contemporary society express feelings of futility and dismay with their present life circumstances similar to those seen in mood disorders (Andrews & Withey, 1976; B. Cohler, 1984; Gove, 1972; Gove & Geerken, 1977; Weissman & Klerman, 1978). Unlike Schizophrenia and Bipolar Disorder, the emergence of Unipolar Disorder appears to be largely a consequence of adverse life circumstances. Weissman and her colleagues (Weissman & Myers, 1979; Weissman, Myers, & Hardin, 1978) found that more than a third of women in an urban community experience mood disorders. At home alone with their young children, these depressed mothers are unavailable to their children, who thus become at risk
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for the development of disorders of self (Kohut & Wolfe, 1978). These depressive disorders often go unrecognized. The impact of maternal depression on offspring adjustment was dramatically demonstrated in a study by Cohn and Tronick (1983) in which mothers of toddlers were asked to feign depression when with their children. Even feigned depression, characterized by withdrawal and disengagement from the child in the playroom, retreating into reading a newspaper, and indifference to the child’s distress, had an immediate, disorganizing impact on the child’s play and on the child’s own mood. Replication of this study with preschool-age children showed that even transitory feigned emotional unavailability led to increased negativism in the children and to more unfocused and withdrawn action, differing only from that of the younger group in that these children persisted somewhat longer in bids for their mother’s attention (Seiner & Gelfand, 1995). Depressive disorders increase self-preoccupation and lead to withdrawal from relationships and community involvement, so it is difficult for troubled parents to reach out to potentially helpful resources in the community. Programs such as Family Focus that provide drop-in centers where mothers and young children gather together and can gain social support require that women be able to reach out to the community. Further, because one symptom of a depressive disorder is intensified anger, children of depressed parents are at increased risk for physical and emotional abuse. The toll of parental depression is not limited to young children. Adolescent psychopathology and substance abuse may appear reciprocally to the onset of parental depression and to the adolescent’s self-blame as the source of parental psychological distress (Weissman, Paykel, & Klerman, 1972). Children of very depressed parents are likely to experience inadequate caretaking and to become involved in accidents around the house not only because they are inadequately supervised but also because they may identify with what they perceive as their parent’s view that they are not worth being cared for. In contrast to children’s parents who are clearly psychotic, not only do depressed parents’ disturbances persist for longer periods before being diagnosed, but the nature of the disturbance tends to shut off the parent from the community and interfere with the child’s contact with community institutions that might assist the child. Because depressive symptoms such as lethargy, withdrawal, and sadness are less socially disruptive than schizophrenic symptoms, it may be more difficult for the child of the depressed parent than for the child of the schizophrenic parent to recognize that the parent’s present state is abnormal. These impediments to the child’s receiving assistance when a parent is depressed are particularly sad because interventions that resolve maternal depression also relieve the children’s mood disorder (Field, 1992).
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The most significant impact of any parental psychiatric disorder not involving direct attacks on the child derives from the loss of parental attention. Findings reported by Field (1992) suggest that the prolonged emotional unavailability of maternal depression is particularly problematic for children. Children of depressed parents may grow up with limited abilities to soothe and comfort themselves. This may lead them to withdraw from ordinary stimuli for fear of being overwhelmed or to seek stimulation in an effort to overcome feelings of depletion (Field, 1992). The impact of maternal depression may have a cumulative effect on the development of children across middle childhood; depressive episodes, hospitalizations, paternal discouragement leading to separation and divorce, and subsequent family instability create multiple risk factors that, together, interfere with satisfactory adjustment (B. Cohler et al., 1983; Goodman, Brogan, Lynch, & Fielding, 1993). This is consistent with the finding reported by Murray, Fiori-Cowley, Hooper, and Cooper (1996) that at least part of the impact of maternal depression on child development and adjustment may be attributed to the many sources of adversity in the lives of these mothers that led them to become depressed in the first place. Children whose mother has been separated from them by illness or whose mother has suffered emotional strain such as loss of her own parents during the preceding year react less well to a test of separation and reunion (the Strange Situation; see Gould, Martindale, & Flens, Chapter 4). Some of these children ignore their mother on her return, shutting her out of the activity, or both seek and avoid contact during reunion. Some children show increased disorganization on the mother’s departure and are not soothed by her reappearance. Evidence suggests that these disturbed reactions have longterm consequences (see Gould et al., Chapter 4). The mother’s emotional unavailability has profound consequences for the child’s ability to experience a secure base from which to continue mastery of the larger world. Living with a depressed mother over time interferes with the emergence of a sense of personal competence and worth. With little encouragement to explore the larger world and little appreciation for their enthusiasm for the world, children of depressed mothers may withdraw from such exploration. This was demonstrated in a series of studies reported by Radke-Yarrow, Zahn-Waxler, and their colleagues at the National Institute of Mental Health (Radke-Yarrow, 1991; Radke-Yarrow, Cummings, Kuczynski, & Chapman, 1985; Zahn-Waxler, Chapman, & Cummings, 1984; Zahn-Waxler et al., 1988). These researchers observed a group of nearly 100 2- and 3-year-old children of mothers with Bipolar Disorder, another group of nearly 50 children whose mothers had a major unipolar affective disorder, 12 children of mothers with a minor mood disturbance, and about 30 children of mothers with no history of affective disorder. The
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study found insecure attachment following reunion was most common among children of mothers with either a major unipolar or bipolar affective disorder, but was infrequently observed among women either without a disorder or with a mild disorder. In a later study with a larger group, Radke-Yarrow (1991) found that the risk for disturbance in attachment among children is particularly significant for mothers with Bipolar Disorder. Indeed, it is difficult to distinguish statistically children of mothers with a unipolar illness from well counterparts. Children showing disturbance of attachment in both the unipolar and psychologically well groups had mothers who were less able to express affect and to signal to the infant their mood state. FROM A FOCUS ON RISK TO A FOCUS ON RESILIENCE AMONG OFFSPRING OF TROUBLED PARENTS Although it is important to recognize that affective disorders increase the risk of psychological problems in children, it is also important to ask why 88% of these children remain relatively resilient to the impact of parental disability and whether custody and visitation arrangements can help support such resilience. Social competence, or the capacity to engage others in support of one’s own continued psychological development, and to effectively use this support, affirmation, and admiration for enhancing feelings of personal integrity and vitality, appears to be central to the study of resilience. Follow-back studies of students with varying mental health outcomes (Watt et al., 1970), follow-through studies of the children of psychiatrically ill parents, and studies of children raised in circumstances of poverty, violence, and family disorganization consistently show that the child with the engaging smile who is energetic and able to reach out to others, as well as to support and comfort, gets more attention from adults and peers alike. More socially competent children are better able than their less socially competent counterparts to withstand family affliction and disruption. They seem to grow in psychological strength through overcoming difficulties. Beardslee and Podorefsky (1988) report that the capacity to differentiate between themselves and their troubled parents and to understand themselves is important in the resilience of adolescent children of mothers with unipolar depression. Commonly, the caseworkers charged with assessing a mentally ill mother’s fitness to parent and subsequently with making recommendations to the courts concerning termination of parental rights lack adequate training (Gallagher, 2000). Studies of state mental health departments have led researchers to conclude that even among mental health professionals, the ability
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of individuals with mental illness to parent is viewed in a negative light (Nicholson, Geller, Fisher, & Dion, 1993). These professionals often have unspoken assumptions concerning whether women with mental illness should be allowed to parent their children. Taken together, this would suggest that the litigant in custody and visitation disputes who suffers from a diagnosed psychiatric disorder is always at a marked disadvantage. Furthermore, researchers suggest that the emotional pain of mentally ill parents is exacerbated by the tendencies of the legal, welfare, and mental health systems to treat adults with mental illness as if they were children (Schwab, Clark, & Drake, 1991). This complicates treatment of mentally ill women who are involved in custody cases. These parents typically report that ‘‘the system’’ is controlling their lives and view any professional behavior that does not immediately facilitate increased access to their children as part of the same frustrating, bureaucratic pattern (Schwab et al., 1991). Because it is always to children’s advantage for parents, whether custodial or noncustodial, or even those having minimal contact with their child, to be functioning at the highest possible level, consideration of arrangements for the child’s best interest properly includes means to maintain parents at their highest level of functioning. Courts’ attempts to contribute to the mental health of parents by mandating treatment as a condition of custody or visitation may have complex, undesired results. Psychiatrically ill parents may perceive such treatment as a further expansion of the oppressive system in which they feel trapped. When mandated treatment is reported to the court, as is necessary for the court to enforce its mandate, mentally ill parents are likely to view therapeutic interventions with skepticism, reasonably worrying that those conducting assessments and providing treatment are likely to provide negative information about them to the court. Clinicians often feel caught between advocating for their client and taking responsibility for the welfare of the children (Schwab et al., 1991). Careful analysis of these situations shows that treating and forensically evaluating the same individual are fundamentally incompatible roles (Strasburger, Gutheil, & Brodsky, 1997) and that every effort should be made to separate them. The tempting argument that treaters know their patients best and hence their input would be of great value to legal decisions does not stand up to examination: The way treaters gather information and the nature of that information differ fundamentally from the information gathering found most useful in legal contexts. Additionally, courts must assess whether mandated treatments are likely to achieve their desired ends. Too often judges make some kind of treatment a condition of custody or visitation without adequately enquiring into the likelihood of its actually achieving the changes needed to make the custody or visitation order in the child’s best interest.
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CONCLUSION Major psychopathology presents problems not only for those afflicted, but for the entire family (B. Cohler, 1983; Pruchno et al., 1984). This is nowhere more evident than in families where parents, predominately mothers, of young children succumb to an episode of psychiatric illness. Maternal psychiatric disturbance evokes a caregiving crisis in the extended family; the husband and father is most often working and not available to provide care. Other relatives, most often women, are expected to fill in and provide continuity of care during times when the mother is too impaired to provide care or is in the hospital. Repeated episodes of maternal psychiatric illness often lead the father and husband to seek divorce, adding to the burden of caring for children and maintaining family continuity (B. Cohler et al., 1983). This further complicates the situation, adding issues of custody to an already difficult situation. As a matter of public policy, more would be gained by investing adequate resources in the mental health needs of mothers than in attempting to find the best arrangements for the family after catastrophic disruptions have already occurred. Still families, courts, and mental health professionals must do their best to address these situations as they occur. Divorce increases the problems in providing care for the mother and children. Except when the mother is grossly neglecting and abusive, psychiatrically ill mothers are likely to maintain custody. The problem for many of these families is not the contest between parents for custody but various degrees of abandonment of the family by the father. When the mother cannot adequately care for the children, foster care is often associated with further exacerbation of the children’s problems. The present crisis of inadequate care for the mentally ill thus puts their children at profound risk. Efforts must be made to maintain troubled parents in the community using effective aftercare interventions following hospitalization and continuing assistance to the mother struggling to maintain tenuous adjustment while beset with such adversity as poverty and lack of help in caring for young children. For those children fortunate enough to have two parents who desire custody or extensive visits, considerations based on parental mental illness are more complex than they may first appear. Even severe psychiatric illness in a parent may have less impact than might be anticipated. The significance of parental psychiatric illness for custody decisions can be evaluated only by examining the impact of the illness on the child. If the parent’s illness puts the child at direct risk of abuse or neglect, arrangements must be made to protect the child. Findings that children are damaged by having psychiatrically ill parents need to be carefully reviewed because much of the negative impact of parental psychiatric illness results from its consequences, such as family disruption, and can be mitigated by managing these secondary consequences.
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Schizophrenic mothers may lack parenting skills as a result of their own upbringing. They may be particularly fearful of losing custody of their children because of the importance of their mothering role to their own sense of self-worth. Court decisions that support acquisition of parenting skills and provide social supports for maintaining custody may help parents maintain their own functioning and support their compliance with treatment, reducing and perhaps eliminating disruptive and damaging separations. Severe psychiatric illnesses have different effects on children. Children of parents with mental illness face special difficulties that stem from a wide range of complicating factors beyond their parent’s mental illness. These may include socially disorganized families, repeated parental hospitalizations, unstable living arrangements, poverty, and parental substance abuse. The repeated separations that accompany serious mental illness are particularly disruptive for children. When making custody decisions it is important to recognize the factors that truly represent danger to the child’s well-being and distinguish those from the diagnosis of mental illness. Parental mood disorders, despite their less flamboyant manifestation, appear to have significantly more untoward impact on children than Schizophrenia. For children of parents with mood disorders, social support that helps the family maintain community ties and provides opportunities for children to create supportive relationships with other caring adults may mitigate the negative impact of parental depression. Parents who become isolated are that much less likely to get treatment. Effective treatment of parental mood disorders has been shown to benefit their children. There is little evidence that parental Schizophrenia in itself is harmful to children except through the disruption it may cause. Many children are successfully raised by psychiatrically ill parents, and some even benefit from the experience of dealing with unusual problems. In assessing the child’s best interest, it is important to note that the opportunity to care for a child may contribute to the mental health of severely mentally ill people. The resulting improved function may benefit the child, who now has the advantage of another involved parent and the peace of having to be less worried about that parent. Custody decisions involving psychiatrically ill parents thus need to go beyond a knee-jerk assumption that involvement with these parents is likely to harm a child to a careful assessment of the impact of the relationship and the careful design of arrangements that optimize factors contributing to the child’s well-being. APPENDIX: PSYCHIATRIC DIAGNOSIS Custody evaluations commonly include psychiatric diagnoses, which are intended to aid in custody decisions. A clear understanding of the meaning of
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these diagnoses will help in assessing the role they should play in custody decisions. In this appendix we provide a view of the conceptual basis of the psychiatric diagnostic commonly used in the United States. Mental health professionals have attempted to develop psychiatric diagnoses that function in the same way that medical diagnoses do in understanding and managing nonpsychiatric illness. Medical diagnoses carry much information summarized in a few words. When a physician diagnoses streptococcal pharyngitis (strep throat), she immediately has a vast amount of information about the illness. She knows that the patient is likely to have a specific group of symptoms (subjective experiences), such as sore throat and difficulty swallowing. She also knows that a certain collection of signs (objective physical findings), such as swollen lymph nodes in the neck, fever, and an inflamed throat, are likely to manifest. She knows that were she to examine certain of the patient’s tissues under the microscope they would show a known pattern of change and that if she performs certain laboratory tests, such as a throat culture, these tests will yield characteristic results. She knows a great deal about the mechanism by which the disease operates (its pathophysiology). She can predict the likely course of the disease if it is untreated and provide probabilistic estimates for the various things that may happen to the patient. This is called the natural history of the disease. Finally, she can describe the likelihood that various interventions will change that natural history and lead to cure or amelioration of the condition. This is called the prognosis. Thus, for an ideal medical illness, diagnosis carries with it a clinical picture, pathological findings, pathophysiology, natural history, and prognosis. Even in physical medicine, there are many conditions for which the full set of information described is unavailable. Some medical conditions simply have not been systematically studied to provide reasonably complete pictures of their clinical presentation. Others, especially chronic illnesses whose longtime course challenges researchers, do not have well-understood natural histories. The understanding of the mechanism of medical diseases is the major fruit of the massive biomedical research efforts of the past century. Yet for many conditions, this picture remains, in varying degrees, incomplete. Especially for chronic illnesses, researchers often have surprising difficulty in describing the impact of treatment. Difficult problems include designing ethical studies that show convincing and meaningful differences in outcome as a result of treatment and properly extending research findings to the situation of ordinary patients. All of these problems are intensified when we work with psychiatric disturbances. The nineteenth century saw a clear differentiation between organic psychiatric disorders, those conditions such as tertiary syphilis that were related to physical damage to the brain, and ‘‘functional’’ psychiatric disorders in
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which no gross brain pathology could be found. By the end of the nineteenth century, psychiatrists had begun to sort out the diagnosis of functional psychiatric disorders along lines consistent with the medical description of disease. They discovered symptom complexes that were characterized by collections of co-occurring findings in similar natural histories. The most successful of these findings was Kraepelin’s (1899) recognition of the difference between two major groups of functional psychotic illnesses. One group of patients observed by Kraepelin commonly suffered from chronic hallucinations, highly unusual thought processes, and a flattening of emotional life. These patients, who today would be classified as falling into the schizophrenic spectrum, followed an essentially chronic, downhill course, usually beginning in midadolescence to young adulthood. A contrasting group of patients suffered primarily from intensely disordered moods, characterized either by profound depression or periods of euphoric excitement. The natural history of these disorders, currently called mood disorders, is strikingly different from that of Schizophrenia. These conditions commonly first appear later in life. Their course is intermittent; following an episode of disturbed mood that usually lasts several months, the patient spontaneously recovers to, or nearly to, the level of functioning he or she had prior to the episode. Inspired by these findings, descriptive psychiatrists studied an array of disorders. In addition to Schizophrenia and mood disorders, they found that anxiety states, obsessive-compulsive conditions, and hysteria (the presence of otherwise unexplained paralyses and seizurelike conditions that are inconsistent with known neurological lesions), and certain disorders of sexual interest and function were regularly associated with complexes of related symptoms and, to varying extents, had specific temporal patterns. However, the remarkable success that Kraepelin achieved with the functional psychoses was not to be had with the wider range of psychiatric disorders; many psychiatrically ill individuals failed to fall within its categories. As therapy for psychiatric disorders became available, treatments were found to be differentially effective depending on patients’ diagnoses. Psychoanalysis, for example, was found to be useful in the treatment of neurotic states, including anxiety disorder, obsessive-compulsive states, and hysteria. However, it was found to be ineffective and even to be detrimental to a patient’s functional psychoses. With the introduction of effective pharmacological means for treating several psychiatric disorders, differential diagnosis became even more important. However, even prior to having therapeutic implications, differential diagnosis in psychiatry was important because it helped physicians assist patients and families in predicting the course of illness. Thus planning better for patients’ lives has also aided in clarifying the situations in which organic illness was present. For example, prior to the development of the electrocardiogram physicians had difficulty telling the difference between
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myocardial infarctions and anxiety attacks. Systematic study of the presenting symptoms of the patients with apparent heart problems allowed researchers to separate them into two groups, one of which was likely to develop severe and obvious organic heart disease, the other of which, despite great distress, rarely progressed to clear organic illness. The development of psychiatry along this medical model is referred to as ‘‘descriptive’’ (and sometimes ‘‘biological’’) psychiatry. Descriptive psychiatry remained the dominant point of view in Europe, and especially Great Britain, throughout most of the twentieth century. In the United States psychodynamic psychiatry ascended following World War II but was largely eclipsed in the 1980s by a resurgent interest in bringing psychiatry closer to general medicine. The strength of descriptive psychiatry lies in its ability to translate readily and consensually observed aspects of disordered psychological function into meaningful diagnoses from which strong inferences can be drawn about the subject situation. Its weakness lies in the too wide-ranging application of this idea, so that conditions for which information is available are treated as if they were well understood, and from its oversimplification of the complexity of human psychological life. The most important embodiment of the descriptive point of view is the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, of the American Psychiatric Association (1994; DSM-IV). This volume describes psychiatric disturbances along five axes: major psychiatric disorder, personality disorder (chronic maladaptive means of dealing with the world), physical illness, current stressors, and overall psychiatric severity. The various conditions listed in the DSM-IV and their definitions reflect a consensus of members of committees of experts brought together by the American Psychiatric Association. Some of these opinions are based on careful systematic empirical studies; some have little basis beyond the clinical opinion of the authors. Patients are generally given a diagnosis when they meet a set of criteria listed in the volume. These criteria are often of the form that a certain number of signs or symptoms from a list are present. In addition, the clinician’s judgment is explicitly given substantial weight. The significance of DSM-IV diagnoses varies substantially. Some diagnoses represent devastating conditions that can be reliably diagnosed and whose properties are well researched and understood. For other diagnoses there is little evidence that clinicians would agree on their presence or that they represent stable entities. In its attempt to avoid controversy about the origin of psychiatric disturbance, the DSM-IV avoids etiologic statements except in a few instances. Thus in using the DSM-IV careful attention must be given to the meaning of a particular diagnosis, the reliability with which it is made, and the extent to which the diagnosis has implications for the particular
References 335
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CHAPTER 14
Child Adjustment and High-Conflict Divorce ROBIN M. DEUTSCH and MARSHA KLINE PRUETT
A
of the twentieth century, parental divorce continued to affect more than one million children each year (U.S. Bureau of the Census, 1999). As compared to children with married parents, children with divorced parents have poorer academic achievement, more behavioral and emotional problems, lower self-esteem, and more difficulties with interpersonal relationships (Amato, 2001; Cherlin, 1999; Hetherington, 1999; Kelly, 2000; McLanahan & Sandefur, 1994; Morrison & Coiro, 1999). However, these child adjustment differences are heightened or attenuated by other variables related to the structure and dynamics of the divorcing family. Conflict, both in marriage and between divorcing parents, has been identified in the research for more than 25 years as one of the most significant variables predicting child adjustment postdivorce. The factors that buffer children from the effects of their parents’ conflict have also been thoroughly researched, leading us to some understanding about resiliency in children. In this chapter we discuss conflict as it relates to children’s adjustment developmentally and also the factors that may mediate the effect of interparental conflict on children. Goodman, Bonds, Sandler, and Braver (2004) identify three types of interparental conflict. Legal conflict is characterized by continued litigation, leading to numerous modifications and contempt motions brought by one parent against the other in the courts. Interpersonal conflict includes verbal disputes, negative comments, and physical violence. Attitudinal conflict reflects the anger and hostility that parents exchange. Because children are the most enduring connection that parents have postdivorce, they are often the focus or source of these three interrelated types of conflict between ex-spouses. T THE END
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For example, the heightened emotions of anger, betrayal, and loss that accompany divorce may fuel the legal process, resulting in a more adversarial litigation course that sometimes spans years of parents’ disputing of day-today issues involving their children. We define parental conflict on various continua, such as level (low to high) and openness (covert to overt). Low conflict is defined as having a low frequency with low intensity. High conflict is higher frequency and higher intensity. High conflict between parents is characterized by mistrust, anger, blaming, and disputes over child-related issues. For the purposes of this chapter, ‘‘conflict’’ denotes verbal and physical expressions in which both parents are mutually engaged and ‘‘refuse to submit to one another’s rules, requests or demands’’ (Johnston, 2006). At the highest end of the continuum, conflict is often associated with physical aggression, where the child is more typically the overt subject of such conflict. However, the relationships between conflict and its effect on children are not simple. Highintensity conflict, even at a low frequency, can have an enormous impact on children. Other factors that affect the child’s response to conflict involve the interaction of individual child characteristics, such as temperament and age; parent mental health, parenting style, and discipline; and environmental factors such as the family’s economic stability and availability of social supports. IMPACT OF CONFLICT PREDIVORCE AND POSTDIVORCE The research on marital conflict suggests that high conflict predivorce is correlated with more internalizing problems than divorce itself (Jekielek, 1998), decreased quality and quantity and increased fragmentation of sleep (El-Sheikh, Buckhalt, Mize, & Acebo, 2006), anxiety, depression and disruptive behavior (Grych, 2005), and overall behavior problems in children (Kaczynski, Lindahl, Laurenceau, & Malik, 2006; Morrison & Coiro, 1999), specifically aggressive-disruptive behavior in young kindergarten-age children (Erath, Bierman, & Conduct Problems Prevention Research Group, 2006). The long-term effects of conflict on children is so potent that in a study of 297 parents and their now married children, it was found that parents’ marital conflict during the child’s early adolescence was significantly associated with the offspring’s own marital conflict, as well as unhappiness, less interaction, and more problems in their marriages (Amato & Booth, 2001). This intergenerational transmission of marital conflict was present even if the parents ultimately divorced. Grych (2005) found that witnessing parental conflict resulted in a greater likelihood of being abusive toward romantic partners in adolescence, higher divorce rates, and higher rates of maladjustment as adults. Clearly, children learn poor interpersonal behaviors when they
Impact of Conflict Predivorce and Postdivorce 355
observe their parents treating each other disrespectfully and aggressively. On the other hand, if they observe adequate resolution of conflict through negotiation, cooperation, and respectful listening without aggression, distress levels in children are lowered (Grych, 2005). Although behavior problems in children are greater when marital conflict is overt, effects are present even when the conflict is covert (Cummings & Davies, 2002). Significantly, there is a spillover effect of marital conflict onto parenting behavior, which then affects child adjustment. Conflict is associated with harsh, coercive, and rejecting parenting (Hetherington & Clingempeel, 1992) and inconsistent or harsh discipline (Buehler & Gerard, 2002). High-conflict parents sometimes become perpetrators or recipients of family violence. In some cases, incidents of physical aggression are associated with the ongoing parental battle but do not result in severe injury (Johnston, 2006). Physical aggression in these instances is not always perpetrated as a means to control the other parent. When children have been exposed to physical aggression, they might manifest significant changes in functioning, make efforts to intervene, or resist seeing the parent they perceive as perpetrating. While high conflict affects children’s functioning, low conflict that results in divorce can also be deleterious to children’s long-term adjustment. When parents engage in little or low conflict during their marriage and then divorce, children in fact have poorer psychological well-being, defined as less happiness, less life satisfaction, lower self-esteem, and psychological distress, than children whose parents do not divorce (Booth & Amato, 2001). For many children divorce is a relief when their parents were engaged in high conflict during the marriage, and that reprieve may extend beyond the distress associated with the family changes associated with divorce (Booth & Amato, 2001). But for children who did not experience ongoing or intense conflict between their parents, divorce is confusing and, initially at least, fraught with distress. In our clinical practices we have seen children who were not able to provide a rationale for the divorce, sometimes leading them to question the stability and reliability of close interpersonal relationships. Thus, in the absence of conflict, divorce becomes a more disconcerting experience for children; in the face of high conflict, the divorce can actually be a relief that brings with it the eventual abatement of symptoms associated with frequent exposure to parental fighting of all types. Postdivorce parental conflict most negatively affects children when the children are involved directly. When children are asked to carry hostile messages from one parent to another, are exposed to negative and belittling comments about the other parent, or are forbidden from mentioning the other parent they are placed in an impossible loyalty bind that results in significant stress (Grych, 2005; Kelly & Emery, 2003). Cummings, Goeke-Morey, and Papp (2001) describe this kind of involvement in hostile disputes between
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parents as ‘‘destructive conflict.’’ One parent’s denigration of and pressure on the child to withdraw from the other parent can lead to confusion, selfdenigration, or denigration of one parent and a complete rejection of an otherwise reasonably good parent. Triangulation or physically threatening the child can result in deep loyalty conflicts for the child. Disagreements over the child’s needs and decisions pertaining to the child can result in self-blame, unresolved conflicts internally and within the family, and ultimately to ineffective resolution and problem-solving techniques (Cummings et al., 2001; Grych, 2005; Grych, Harold, & Miles, 2003; Hetherington, 1999). When compared to children whose parents were highly conflictual but did not engage the children in their struggle, those children who were the messengers for or a colluder with a parent’s rage were more likely to be depressed and anxious (Buchanan, Maccoby, & Dornbusch, 1991) and to have adjustment problems (Buehler et al., 1997). Reports of increased behavior problems in children who are involved in their parents’ dispute suggests that children are deeply affected when they attempt to actively intervene in their parents’ conflict (Amato & Afifi, 2006; Buchanan, Maccoby, & Dornbusch, 1996; Hetherington, 1999; Lee, 2002). To the extent that children in sibling pairs felt more responsible for or threatened by the conflict between their parents, they experienced more adjustment problems (Skopp, McDonald, Manke, & Jouriles, 2005). On the other hand, those children whose parents were in high conflict but did not put their children in the middle of it, such that the children were not the focus of the conflict, had levels of functioning similar to those children whose parents had low or no conflict (Hetherington, 1999). The enormity of the effect on children of being caught in their parents’ conflict cannot be underestimated. When parents use or involve the children in their anger and hostility toward the other parent children lose their sense of protection and security. Instead, they must decide whom they believe and whom they trust, often feeling that there is only one right answer. Because the two people on whom they rely for security and accurate understanding of the world differ in how they view the child and the child’s needs, children are more likely to have difficulty trusting or making accurate perceptions, interpretations, and attributions (Johnston & Roseby, 1997). CONFLICT-RELATED FACTORS THAT AFFECT CHILD ADJUSTMENT AGE
AT
SEPARATION
There is a fairly large body of research that looks at the effects of divorce on children by developmental level (see the review by Doolittle & Deutsch, 1999). Because children must accomplish different emotional and social tasks at different developmental levels, they do react to divorce and conflict differently by age.
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Younger children (toddlers and preschoolers) do not have the cognitive capacity to accurately assess the causes and consequences of divorce; thus self-blame and fears of abandonment are typical responses to divorce. Not only don’t younger children have the cognitive resources to understand the family change, but they also tend to be more dependent on the ongoing presence of their family and do not significantly rely on outside resources. Because parents tend to feel particularly vulnerable at the time of the divorce or when involved in a relationship characterized by high conflict, they tend to be focused on their own needs and experiences, and thus are unable to consistently respond to the child’s separate needs and experiences (Roseby & Johnston, 1998). The child may then exhibit increased anxiety and, for preschoolers, more oppositional behaviors. Preschoolers tend to feel less control and more helplessness when the people whom they trust to care for them are engaged in behaviors that feel frightening and threatening. School-age children are focused on feeling competent and mastering physical, intellectual, and social situations. Their peer relationships and experiences outside of the family are of new importance, and their family now plays a different role, which is to offer predictable and consistent support and guidance for these new relationships and challenges. When children’s family relationships are disrupted by divorce or conflict, school-age children tend to over-rely on themselves or align with one parent for a sense of direction and safety. Older children (ages 10 to 12) are more attuned to the content of the conflict between their parents and show less negative emotion (anger, sadness, worry, or shame) than younger children when the conflicts are child-related (Grych, 1998). Older children, who are searching for competence and mastery, may feel they have control over the child-related conflicts. Children at this age who are exposed to high conflict tend to rely on themselves to solve problems and to underutilize adults who could be helpful (Johnston & Roseby, 1997). This distortion of their capacities and experience and faulty perceptions, attributions, and interpretations can result in ongoing and long-term poor reality testing. Adolescents are trying to separate and individuate from their parents, similar to toddlers. With such increased cognitive, emotional, and social understanding, adolescents are actively attempting to create their own identity as separate from that of their parents. Increasingly, they are able to consider the complexity of moral issues and to understand how one’s own actions are viewed by others. Adolescents weigh risks differently than adults do and may only inconsistently control their impulses. Adolescents who are struggling with their own separation and their own strong and shifting emotions and are attempting to understand multiple points of view and manage their impulses to make good decisions can be quite derailed by
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parental divorce, especially when it is accompanied by high interparental conflict. These young people are able to use and manipulate the conflict between their parents to their advantage to get increased freedom and decreased responsibility. They are able to align with a parent around the other parent’s alleged bad behavior and to assign blame with a judgmental attitude that undercuts relationships not only at home but with peers. GENDER The research on gender is mixed. Grych (1998) found that girls showed greater distress and felt more threatened than boys in the face of high-intensity conflict. The Virginia Longitudinal Study (Hetherington, 1999) found that girls were also more likely to blame themselves for their parents’ conflict, whereas boys were more likely to distance and withdraw. In adolescence boys were more likely to attempt to intervene in physical conflict. In a recent study of marital conflict and children’s appraisals, results showed that children’s appraisals of threat declined from childhood to adolescence, but children’s self-blame did not. Boys were more self-blaming than girls (Richmond & Stocker, 2007). In general, boys seem to have more long-term problems with divorce, regardless of the level of conflict between their parents (Hetherington, 1999). PREMARITAL CONFLICT VERSUS SEPARATION-ENGENDERED CONFLICT AS A PREDICTOR OF ADJUSTMENT Whereas the research of the 1980s and early 1990s looked at conflict as one variable that had significant impact on children’s functioning, research of the past 15 years has looked more carefully at family process variables, such as children’s responses to marital conflict and the interaction of marital conflict, divorce, and postdivorce conflict. In general, similar adjustment problems are associated with marital conflict and divorce, including externalizing disorders, lack of self-regulation, low social responsibility, low cognitive achievement, and difficult interpersonal relationships (Hetherington, 1999). Marital conflict and divorce are consistently reported to be stressful life events by children and are clearly associated with behavior problems in adolescence, emotional difficulties in early adulthood (Wallerstein, Lewis, & Blakeslee, 2000), and problematic marriages in adulthood (Amato & Booth, 2001). When marital conflict is chronic, overt, and intense, children do better when their parents have disengaged emotionally from one another and divorced. However, when marital conflict is covert or minimal, children appear to function more poorly after divorce (Amato, 2001; Jekielek, 1998; Morrison & Coiro, 1999). Further, Morrison and Coiro found that the children with the
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greatest increase in behavior problems lived in intact families in which the parents were engaged in frequent arguments. Hetherington (1999) found that compared to children of married low-conflict parents, children of married parents directly exposed to their parents’ conflict had more externalizing and internalizing problems as well as lower cognitive agency, social responsibility, social competence, and self-esteem. Children may be exposed to their parents’ arguments more often in married families, but are protected from their parents’ conflict postdivorce. To the extent that they witness hostility and fighting and that the arguments revolve around them, they may be more likely to blame themselves and experience decreased emotional security (Davies & Cummings, 1998). PARENTING AND THE PARENT-CHILD RELATIONSHIP Family process variables, including the quality of the child’s relationship with each parent and parenting competence, in addition to the level of parental conflict and the child’s involvement in that conflict, significantly affect children’s functioning postdivorce (Ayoub, Deutsch, & Maraganore, 1999; Johnston, 2006). Years of research have associated authoritative parenting, defined as warm and responsive communication and monitoring, with healthy child development. In divorced families this direct relationship between authoritative parenting and child adjustment is maintained, regardless of levels of parental conflict. In both married and postdivorce families, conflict spills over into parenting behaviors. When a parent is focused on his or her anger at the other parent, children are more likely to experience increased hostility, inconsistent discipline, or withdrawal by the parent (Grych, 2005). Hetherington (1999) also showed that in both high-conflict nondivorcing families and in divorced families, mothers assert less control and engage in more negative coercive parenting compared to low-conflict married parents. Similarly, fathers in highconflict married families show lower warmth and control and more negative coercive parenting than fathers in low-conflict families. Divorced fathers show few differences from married low-conflict fathers, with the important exception of less warmth toward their children. In a meta-analysis of 39 studies, overt conflict between parents was associated with poor parenting behaviors, particularly harsh punishment (Krishnakumar & Buehler, 2000). Interestingly, the association between interparental conflict and parenting behaviors is stronger in married families than in divorced or separated families. This association is also stronger for older than younger children (Krishnakumar & Buehler, 2000). Many studies indicate that after divorce, children’s relationships with their parents are more fraught, regardless of the amount of conflict between parents
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(Booth & Amato, 2001). Parenting is affected when parents are in conflict during their marriage, conceptualized as the ‘‘spillover’’ effect of marital conflict onto parenting behavior (Buehler & Gerard, 2002; Grych, 2005; Kaczynski et al., 2006). Likewise, when parents divorce, regardless of the level of conflict, they need to reorganize their lives and reconstitute as a single parent, and parenting behavior is typically more ineffective for at least some period of time (Kelly & Emery, 2003). For the children who become more oppositional and aggressive in response to the decreased availability and responsiveness of their parents, parents are more likely to use harsh discipline (Kaczynski et al., 2006). More rejecting parents are also less sensitive and more likely to have insecure children who exhibit more internalizing behavioral difficulties (Kaczynski et al., 2006). To the extent that parents are available to their children, can maintain warmth, and use consistent authoritative discipline, children’s adjustment is at least partially mediated when they are exposed to interparental conflict (Crockenberg & Langrock, 2001; Grych, 2005), especially among younger children (Hetherington, 1999). A recent study that tries to extricate father-child relationships postdivorce from the effects of ongoing parental conflict reported that greater parental conflict was related to poorer father-child relationships in young adulthood and greater distress about the parental divorce, regardless of time spent with the father. Poorer father-child relationships and divorcerelated distress in turn predicted poorer physical health among the sample of young adults. Thus exposure to parental conflict was detrimental to children regardless of the level of father involvement. Incidentally, father involvement was positively related to health outcomes regardless of the level of parental conflict (Fabricius & Luecken, 2007). COPING STRATEGIES Some children who are exposed to their parents’ conflict are able to maintain adequate to good relationships with both of their parents. For many children this exacts a tremendous psychological toll. It requires development of negotiation skills, the ability to subsume their own childish needs for the sake of peace in the home, and distancing and monitoring in all situations in which both parents are present or have authority in decisions. One father recently described a situation with his 5-year-old: The mother had the child ask her father to do something he wasn’t likely to do. The father said no, but that the child didn’t need to send that message because he would handle it. The father then overheard his 5-year-old telling Mommy on the phone that she forgot to ask Daddy what she was supposed to ask him. She was willing to risk her mother’s disappointment rather than fan the flames between them. The mother was a little disappointed but not terribly; the child made sure
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Daddy overheard the conversation so that he felt good about the child’s protectiveness; and nobody was too angry. But the father made the disconcerting realization that they were teaching their child to lie to both of them in order to keep parental conflict at a minimum and the child’s relationship positive with each of them. Some children resolve the dilemma of managing relationships with their two hostile parents by aligning with one parent against the other (Amato & Booth, 1997; Buchanan & Heiges, 2001; Johnston, Kline, & Tschann, 1989; Johnston, Walters, & Olesen, 2005). Although this alignment relieves children of the distress of reconciling polar and hostile views of the two people whom they once trusted, the children risk losing the support and guidance of one of their parents. They may also feel resentment and guilt that becomes intensified over time. PROTECTIVE FACTORS Although parenting appears to be compromised among both high-conflict married and divorced parents as compared to parents with low or no conflict, those children whose parents are able to provide warm, supportive parenting and use authoritative disciplinary practices have better adjustment compared to children whose parents are less attentive, less supportive, and authoritarian (Amato, 2000; Hetherington, 1999; Krishnakumar & Buehler, 2000). Parenting quality has been shown to soften the negative effects of marital conflict on child adjustment. A study by El-Sheikh and Elmore-Staton (2004) found that a secure child-parent attachment also served as a protective factor against adjustment problems associated with marital conflict. A loving and secure relationship with at least one parent or caretaker is a helpful buffer when children are exposed to ongoing conflict between their parents (Emery, Waldron, Kitzmann, & Aaron, 1999). For adolescents who may have disengaged from their family as a result of parent-parent or parent-child conflict, the involvement of another caring adult, such as a neighbor, parent of a friend, teacher, coach, or relative, mediates the influence of an antisocial peer group and resulting behavior problems (Hetherington, 1999). For all children, a trusting, reliable relationship with a caretaker can provide stability, comfort, and predictability, attenuating the effects of significant stress emanating from the family as a whole. In sum, to the extent that parents can encapsulate their conflict and protect their children from the exposure to and tension from their hostile disputes, their children are less likely to experience the negative effects of divorce (Hetherington, 1999). To the extent that parents can keep their children out of the middle of their conflict, thus avoiding loyalty conflicts, disagree with each other without hostility and contempt, and focus on effective parenting, their
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children are more likely to have positive adjustment and develop resilience in response to the stress of family change from divorce (Grych, 2005). INTERVENTIONS THAT ADDRESS CHILDREN’S RESPONSES TO HIGH CONFLICT Research shows that children whose parents divorce are more likely to experience social, emotional, behavioral, and academic problems than children who live with continuously married parents (Kelly & Emery, 2003). However, when children’s parents, with the support of the legal system, are able to keep their focus on the needs of their children, most children will not suffer long-term consequences (Hetherington & Kelly, 2002). Because competent parenting that provides insulation from interparental conflict reduces some of the risks of poor adjustment found in children whose parents divorce (Pedro-Carroll, 2005), interventions aimed at high-conflict parents focus on helping them to decrease their conflict, and—importantly—to keep it private from their children’s ever inquisitive eyes and ears. Most parents who are in the process of divorcing experience some degree of conflict. Increasingly, courts throughout the United States and Canada mandate or provide referrals for interventions for parents who are in the midst of a divorce. Parent education programs are now mandated or available in approximately half of U.S. judicial counties (Arbuthnot, 2002). Given that the research is clear that conflict between parents results in maladjustment for children, but that firm and nurturing parenting and good parent-child relationships can reduce the effects of discord between parents, Grych (2005) identified the overall goals of parent education or prevention programs as decreasing interparental conflict and improving child adjustment. Specific educational and behavioral goals for parents include reducing the level of interparental conflict to which children are exposed, fostering healthy parentchild relationships, and keeping children out of the middle of their disagreements and conflict. Additional goals include improving parenting (especially discipline) and coparenting, increasing awareness of the effects of divorce on children, reducing litigation, and helping parents understand the emotions and legality of divorce. The research on parent education programs suggests that skill-based programs may be more effective than strictly informational programs. In terms of process, these programs include role-plays, experiential exercises, group discussions and questions, and interactions between the participants (Bacon & McKenzie, 2004). Many of these group programs are run by male-female teams, sometimes one mental health professional and one lawyer (Pruett & Barker, Chapter 17). Reports of high parental satisfaction and increased knowledge and skills are reported by parents who participate in 5- to 6-hour parent education
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programs (Blaisure & Geisler, 1996), yet there has been little research to assess the effectiveness of these programs. The research that is available suggests that these programs are effective in helping parents focus on their children’s needs and keeping their children out of their conflicts (Arbuthnot & Gordon, 1996) and reducing interparental conflict and reducing litigation (Shifflett & Cummings, 1999; Thoennes & Pearson, 1999). The most effective programs are at least 6 hours in length (Bacon & McKenzie, 2004) and combine skill building with education focused on enhancing parental communication strategies and decreasing conflict (Cookston, Braver, Sandler, & Genalo, 2002; Kelly, 2002; Kramer, Arbuthnot, Gordon, Rousis, & Hoza, 1998). However, for the 5% to 15% of divorcing parents who are characterized by higher conflict (Lamb, Sternberg, & Thompson, 1997), the typical 4- or 5-hour educational program does not address the impasses and difficulties these parents face on a regular basis over the course of many years. The most effective interventions that involve parents who are in high conflict with each other require some court authority (Johnston, 2006). Courtconnected parent education programs are mandatory or available in nearly half of the counties in the United States (Geelhoed, Blaisure, & Geisler, 2001). In addition, some counties have experimented with or implemented highconflict programs through mental health arms of court services or through external referrals with reporting back to judges. Examples of parent programs with proven efficacy are reviewed next. The Collaborative Divorce Project (CDP), created by Dr. Marsha Kline Pruett, is a unique court-based intervention that integrates research, intervention, and policy formulation with the goals of decreasing parental conflict, increasing parental cooperation and father involvement, creating positive parent-child relationships, and reducing the economic and legal costs of the divorce process (Pruett, Insabella, & Gustafson, 2005). This court-affiliated program combines psychoeducational, mediation, and therapeutic practices under one rubric through a randomized clinical trial of promising practices among divorce intervention. The CDP is one of the first programs to emphasize mothers’ and fathers’ joint participation in the program, making both parents’ participation a condition of acceptance into the program. The CDP offers education that emphasizes the need for continuing cooperation and coordination between parents and the necessity of involving both parents in the lives of their children. The intervention consists of seven components (see Pruett et al., 2005, for a more detailed description): (1) an introduction to the legal system that enables parents to discuss the process of divorce with a lawyer, a mediator, and a judge; (2) a two-session educational series that aids parents in fulfilling the state requirements for divorcing couples with children, utilizing interactive activities, skill building, and discussion to concentrate on issues such as conflict resolution, children’s responses to the divorce,
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communication, and coparenting strategies; (3) feedback sessions to individual couples following the education series; (4) therapeutic-focused mediation sessions; (5) intensive education for higher conflict families; (6) conflict resolution meetings with attorneys; and (7) follow-up sessions to tweak parenting plans 9 months after parents implement and gain experience with them. Of particular note for this chapter, the CDP provided basic education to all parents but also offered four additional sessions to high-conflict parents. These additional sessions focused more intensively on conflict-reduction strategies, as well as positive parenting practices, power and control in relationships, and maternal gatekeeping. A conference with an attorney and a mental health worker was also employed as a regular strategy with high-conflict couples. Postintervention reports taken immediately after completion of the project suggest that over 90% of participants rated the program as beneficial, particularly as it related to the personal aspects of divorce, including strategies for communication with their ex-spouse and parenting plan design (Pruett et al., 2005). A follow-up study, conducted over a year after the classes ended, corroborated these reports, also indicating that the information about child development and the legal process had proven especially beneficial. Compared to a control group, parents in the intervention group reported decreased parental distress and conflict, increased use of alternative means of dispute resolution outside of the adversarial legal system, increased father involvement and willingness to pay child support, and positive impacts on child outcomes in cognitive, social, and affective developmental domains. The intervention was particularly beneficial for mothers with more symptoms of distress (Pruett et al., 2005). The Alameda County Group Mediation Program (Johnston, 1999) is a therapeutic group program that consists of eight 90-minute weekly sessions. Adult participants must have failed twice at mediation prior to referral, and approximately half of the participants are court-ordered to attend. Parents and children meet separately for the first four sessions and together for the fifth session. Joint parent sessions are run by mixed-sex leaders who provide therapeutic emotional help and mediation, with the goals of encouraging compliance with court orders and reducing ongoing conflict. Compared to a parenting education model, this program resulted in greater cooperation and less disagreement between parents, higher legal dispute resolution rates, a decrease in domestic violence, better understanding of children’s needs and of the parents’ role in the conflict, a decline in court filings, and a reduction in court hearings (Johnston, 1999). The Kids First Nine-Week Program for Parents in High Conflict (Salter et al., 2003) was created for parents who have been in high chronic conflict. It is a collaboration of the Kids First Center and the Maine Superior Court.
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Attendance in the course is court-ordered and begins and ends in the courthouse with a judge addressing the parent participants. The course is facilitated by a man and a woman, one a mental health professional and the other a legal professional. Each of the subsequent 3-hour sessions begins with both parents sharing a meal and relating positive stories about their children, followed by education and skill development focused on working together without conflict. After a review of the emotional stages of the divorcing process, parents are taught that ‘‘the same skills needed for a successful marriage are needed for a successful divorce.’’ In a structured environment parents are taught how to get to ‘‘Yes’’ (i.e., cooperative agreements) and through role-play learn a conflict resolution model. A 3-year follow-up of 54 coparent groups indicated a significant decrease in relitigation rates after taking the class (French, Wiggin, & Libby, 2007). IMPASSE-DIRECTED MEDIATION Impasse-directed mediation, a therapeutic mediation approach designed for high-conflict couples, is composed of three phases of therapeutic work following an information-gathering and assessment phase (Johnston & Campbell, 1988; Pruett & Johnston, 2004; Roseby & Johnston, 1998). In the first phase of prenegotiation counseling, the family members are seen by one counselor or mediator individually and, when appropriate, conjointly. The negotiation or conflict-resolution phase is conducted in conjoint interviews with a focus on drafting access agreements. In the final implementation phase the process is reviewed and referrals are made as needed. The 12-week program is confidential and unavailable to the court. Results of a 2- to 3-year follow-up of 77 couples with 100 children ages 2 to 12 indicated that 82.5% of the couples had reached agreement at the time of the mediations, with almost two-thirds of these couples managing on their own 2 years later. Over one-third of these couples returned to court, though fewer than one-fourth sought court intervention more than once after the intervention. Results also indicated a decrease in parental hostility and conflict, including verbal and physical aggression. INTERVENTIONS
FOR
ALIGNED
OR
ALIENATED CHILDREN
Courts, attorneys, and mental health professionals find it particularly troubling when a child refuses visitation with or is estranged from a parent. After parents separate, children may resist contact with a parent for a variety of reasons. This resistance may be a normal developmental reaction or a response to the specific circumstances of the divorce. For example, some children were more aligned with one parent before the divorce as a result of a
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stronger attachment or more familiarity, common interests, compatible temperaments, or fewer demands and expectations from that parent. These alignments can carry over and strengthen when parents separate and divorce. Some children resist contact because they are outraged by one parent’s behavior, generally the parent who they believe ‘‘left us,’’ or they may be worried about the parent they leave behind during the transition to the other parent. Postdivorce children may resist contact because their activities are disrupted or ill considered by a parent, or they may resent new partners or their children who they believe interfere with their parent-child relationship. Another category of visitation resistance would be considered justified when the child has experienced a trauma or significant emotional injury that results in estrangement from that parent. For example, a child who has been the subject of a parent’s abuse or serious neglect or who has witnessed violence between parents may realistically reject or resist contact with a parent (Ward & Deutsch, 2004). Interventions for any of these situations first require a comprehensive assessment that focuses on the circumstances surrounding the divorce; the child’s developmental status and temperament; the child’s attitudes and behaviors with and toward each parent; the capacities, behaviors, and attitudes of each parent; and the history of the parent-child relationship. Therapeutic interventions must focus on the attitudes, behaviors, and interpersonal dynamics that require change. Intervention in these cases is most successful when it occurs early in the process of contact resistance. The intervention requires the participation of everyone in the family system and a clear court order that defines the role of the therapist or team, their scope of authority, behavioral goals for the family, limits of confidentiality, and expectable lines of communication during the intervention. It is the child’s unreasonable behaviors and rigid rejection of a parent that bring the problem to the attention of the court, but the behaviors and beliefs of each of the parents require modification as well (Johnston et al., 2005). One goal of the therapeutic intervention is to help the child have more realistic appraisals of each parent, thereby fostering improvement in his or her general reality testing or ability to accurately perceive and interpret behaviors and events. Another goal is to restore appropriate parental and parent-child roles (Johnston, Walters, & Friedlander, 2001). The work with each of the parents is fundamental to success. The aligned parent generally holds extreme negative views of the rejected parent, characterizing that parent as toxic or dangerous or unable to appropriately care for the child. The aligned parent typically does not see the value of the relationship between the child and the rejected parent. These parents also tend to have difficulty separating their feelings from those of the child (Johnston et al., 2005). Therapeutic intervention with that parent addresses the realistic
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concerns about the rejected parent, as well as the short- and long-term impacts of the loss of a parent to the child. Therapeutic intervention with the rejected parent focuses on the contributions that parent makes to the child’s resistance. Those contributions may include a harsh, rigid parenting style, anger toward or rejection of the child for his or her resistance and refusal to have contact, blaming the child, minimal empathy for the child, undeveloped and ineffective parenting capacities, critical intimidating and easily enraged style, and passivity in the face of high conflict (Deutsch, 2001; Johnston, Walters, et al., 2001; Ward & Deutsch, 2004). The goal of the intervention is to reunite the rejected parent and child in a positive way with the active support of both parents and the common message that contact with both parents is safe and positive. PARENTING COORDINATION One of the newest interventions to address the family law problem of highconflict families is the process of parenting coordination. Families who are in high conflict typically use the courts to help them resolve such decisions as minor changes in the parenting time schedule, telephone access, vacation planning, and decisions about their children’s afterschool activities, health care, child care, and day-to-day child-rearing practices (Coates, Deutsch, Starnes, Sullivan, & Sydlik, 2003). A disproportionate amount of the court’s time and resources is used to resolve these seemingly simple disputes. Children typically are caught in the middle of their parents’ disagreements, which are often not resolved until the last minute, resulting in increased tension for the parents and children. In response to the need for some way to work with these high-conflict families, the parenting coordination process emerged in a number of jurisdictions in the United States and Canada. This new role, called ‘‘parent coordinator,’’ is also known as ‘‘special master,’’ ‘‘family court advisor,’’ and ‘‘wise person’’ in various states and jurisdictions. A parenting coordinator is a neutral professional generally ordered by the court or through agreement of the parties to assist the parents to implement their parenting plan, monitor compliance with the details of the plan, and help them resolve their child-related disputes in a timely manner. Parenting coordination may be especially useful when there are safety and mental health considerations (Association of Family and Conciliation Courts Task Force, 2006). The parenting coordinator is able to provide a structured intervention to address conflicts in decision making through assessment, education, conflict management and dispute resolution, and decision making. The parenting coordinator hears the parents’ disputes and attempts to understand the impasse preventing agreement. Through a process of negotiation and mediation, the parenting coordinator helps the parents reach an agreement. If the
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parents are unable to agree, the parenting coordinator makes the decision, if that is the order of the court, or makes recommendations to the parents or the court. The decision or recommendation generally remains in effect until the court changes it. The parents always have the right and opportunity to have the decision heard by the court. A parenting coordinator has only the authority delegated by the court order and may not make decisions that substantially alter the parenting plan or that would change the legal or physical custody of the children. The role of the parenting coordinator is a distinct though hybrid role that requires a variety of necessary skills often found in other professional functions. The role of educator underlies all of the work of the parent coordinator. For example, when parents are in conflict they may distance themselves from each other; mothers in particular may become less directive and available to provide needed child-rearing information to fathers, resulting in more inconsistent limit setting and caretaking of children (Sturge-Apple, Davies, & Cummings, 2006). Mothers may then attempt to limit access by fathers, claiming that the inconsistent caretaking is negatively affecting the children. The parenting coordinator may need to educate the parents about the importance of maintaining communication to protect the children physically and emotionally and will propose a communication structure whereby information exchange about the children is sufficiently comprehensive. At the same time, when parents remain in high conflict, occasions for contact between the parents must be reduced. The parenting coordinator will help the parents work out necessary protections, such as transitions at neutral locations, protocols for attendance at children’s events, and a structure for communication about childrelated issues that avoids telephone or face-to-face interaction so that the children are not exposed to hostile conflict between their parents. CONCLUSION The large body of literature regarding the types, sources, and consequences of parental conflict on children postdivorce has been consistent and increasingly detailed. Slowly a picture has emerged of the negative effects of conflict and the many risks and protective factors that support or reduce ongoing friction between parents. Not surprisingly, strong relationships and solid boundaries between parents and between parents and children are the strongest factors that support positive child adjustment. It has become clear that the complexities of family life in the face of conflict start at some early point in the marriage or parents’ relationship and carry over during and sometimes long after divorce is effected to purportedly end the conflict. An array of preventive interventions and therapeutic processes have helped stem parental acrimony and hostility, attempting to support healthier family processes
References 369
that will end conflict not only for the parents, but for subsequent generations who stand to learn the negative lessons of living with conflict. Professionals will continue to design, and hopefully more fully evaluate, the effects of these programs so that we may learn more about what works best for which kinds of disputing families.
REFERENCES Amato, P. R. (2000). The consequences of divorce for adults and children. Journal of Marriage and the Family, 62, 1269–1287. Amato, P. R. (2001). Children of divorce in the 1990s: An update of the Amato and Keith (1991) meta-analysis. Journal of Family Psychology, 15, 355–370. Amato, P. R., & Afifi, T. D. (2006). Feeling caught between parents: Adult children’s relations with parents and subjective well-being. Journal of Marriage and the Family, 68, 222–235. Amato, P. R., & Booth, A. (1997). A generation at risk: Growing up in an era of family upheaval. Cambridge, MA: Harvard University Press. Amato, P. R., & Booth, A. (2001). The legacy or parents’ marital discord: Consequences for children’s marital quality. Journal of Personality and Social Psychology, 81, 627–638. Arbuthnot, J. (2002). A call unheeded: Courts’ perceived obstacles to establishing divorce education programs. Family Court Review, 40, 371–382. Arbuthnot, J., & Gordon, D. A. (1996). Does mandatory divorce education for parents work? A six-month outcome evaluation. Family and Conciliation Courts Review, 34, 60–81. Association of Family and Conciliation Courts Task Force. (2006). Guidelines for parenting coordination. Family Court Review, 44, 164–211. Ayoub, C. C., Deutsch, R. M., & Maraganore, A. (1999). Emotional distress in children of high-conflict divorce. Family and Conciliation Courts Review, 37, 297–314. Bacon, B. L., & McKenzie, B. (2004). Parent education after separation/divorce: Impact of the level of parental conflict on outcomes. Family Court Review, 42, 85–98. Blaisure, K., & Geisler, J. (1996). Results of a survey of court-connected parent education programs in U.S. counties. Family and Conciliation Courts Review, 30, 23–40. Booth, A., & Amato, P. R. (2001). Parental predivorce relations and offspring postdivorce well-being. Journal of Marriage and the Family, 63, 197–212. Buchanan, C. M., & Heiges, K. L. (2001). When conflict continues after the marriage ends: Effects of post-divorce conflict on children. In J. Grych & F. Fincham (Eds.), Interparental conflict and child development. New York: Cambridge University Press. Buchanan, C. M., Maccoby, E. E., & Dornbusch, S. M. (1991). Caught between parents: Adolescents’ experience in divorced homes. Child Development, 62, 1008–1029. Buchanan, C. M., Maccoby, E. E., & Dornbusch, S. M. (1996). Adolescents after divorce. Cambridge, MA: Harvard University Press.
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Buehler, C., Anthony, C., Krishnakumar, A., Stone, G., Gerard, J., & Pemberton, S. (1997). Interparental conflict and youth problem behaviors: A meta-analysis. Journal of Child and Family Studies, 6, 233–247. Buehler, C., & Gerard, J. M. (2002). Marital conflict, ineffective parenting, and children’s and adolescents’ maladjustment. Journal of Marriage and the Family, 64, 78–96. Cherlin, A. J. (1999). Going to extremes: Family structure, children’s well-being, and social science. Demography, 36, 421–428. Coates, C., Deutsch, R., Starnes, H., Sullivan, M. J., & Sydlik, B. (2003). Parenting coordination for high conflict families. Family Court Review, 42, 246–262. Cookston, J. T., Braver, S. L., Sandler, I. N., & Genalo, M. T. (2002). Prospects for expanded parent education services for divorcing families with children. Family Court Review, 40, 190–203. Crockenberg, S., & Langrock, A. (2001). The role of specific emotions in children’s responses to interparental conflict: A test of the model. Journal of Family Psychology, 15, 163–182. Cummings, E. M., & Davies, P. (2002). Effects of marital conflict on children: Recent advances and emerging themes in process-oriented research. Journal of Child Psychology and Psychiatry, 43, 31–63. Cummings, E. M., Goeke-Morey, M. C., & Papp, L. M. (2001). Couple conflict: It’s not just you and me, babe. In A. Booth, A. C. Crouter, & M. Clements (Eds.), Couples in conflict (pp. 117–148). Mahwah, NJ: Erlbaum. Davies, P. T., & Cummings, E. M. (1998). Exploring children’s emotional security as a mediator of the link between marital relations and child adjustment. Child Development, 69, 124–139. Deutsch, R. (2001, November). Re-attachment of estranged fathers and children. Paper presented at the meeting of the Massachusetts Association of Guardians ad Litem, Waltham, MA. Doolittle, D., & Deutsch, R. (1999). Children and high-conflict divorce: Theory, research and intervention. In R. M. Galatzer-Levy & L. Kraus (Eds.), The scientific basis of child custody decisions. New York: Wiley. El-Sheikh, M., Buckhalt, J., Mize, J., & Acebo, C. (2006). Marital conflict and disruptions of children’s sleep. Child Development, 77, 31–43. El-Sheikh, M., & Elmore-Staton, L. (2004). The link between marital conflict and child adjustment: Parent-child conflict and perceived attachments as mediators, potentiators, and mitigators of risk. Development and Psychopathology, 16, 631–648. Emery, R. E., Laumann-Billings, L., Waldron, M., Sbarra, D. A., & Dillon, P. (2001). Child custody mediation and litigation: Custody, contact, and co-parenting 12 years after initial dispute resolution. Journal of Consulting and Clinical Psychology, 69, 323–332. Emery, R. E., Waldron, M. C., Kitzmann, K. M., & Aaron, J. (1999). Delinquent behavior, future divorce, or nonmarital childbearing, and externalizing behavior among offspring: A 14-year prospective study. Journal of Family Psychology, 13, 1–12.
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Erath, S. A., Bierman, K. L., & Conduct Problems Prevention Research Group. (2006). Aggressive marital conflict, maternal harsh punishment, and child aggressivedisruptive behavior: Evidence for direct and mediated relations. Journal of Family Psychology, 20, 217–226. Fabiricus, W. V., & Lueken, L. J. (2007). Postdivorce living arrangements, parent conflict, and long-term physical health correlates for children of divorce. Journal of Family Psychology, 21, 195–205. French, J. J., Wiggin, S., & Libby, P. (2007, June 2). Group program for high conflict parents. Paper presented at the 44th AFCC conference. Geelhoed, R. J., Blaisure, K. R., & Geisler, M. J. (2001). Court affiliated parent education: Status of court-connected programs for children whose parents are separating or divorcing. Family Court Review, 39, 393–404. Goodman, M., Bonds, D., Sandler, I., & Braver, S. (2004). Parent psychoeducational programs and reducing the negative effects of interparental conflict following divorce. Family Court Review, 42, 263–278. Grych, J. H. (1998). Children’s appraisals of interparental conflict. Journal of Family Psychology, 12, 437–453. Grych, J. H. (2005). Interparental conflict as a risk factor of child adjustment: Implications for the development of prevention programs. Family Court Review, 43, 97–108. Grych, J. H., Fincham, F. D., Jouriles, E. N., & McDonald, R. (2000). Interparental conflict and child adjustment: Testing the mediational role of appraisals in the cognitive-contextual framework. Child Development, 71, 1648–1661. Grych, J. H., Harold, G. T., & Miles, C. J. (2003). A prospective investigation of appraisals as mediators of the link between interparental conflict and child adjustment. Child Development, 74, 1176–1193. Hetherington, E. M. (1999). Should we stay together for the sake of the children? In E. M. Hetherington (Ed.), Coping with divorce, single parenting, and remarriage (pp. 103–133). Mahwah, NJ: Erlbaum. Hetherington, E. M., & Clingempeel, W. G. (1992). Coping with marital transitions: A family systems perspective. Monographs of the Society for Research in Child Development, 57 (2/3, Serial No. 227). Hetherington, E. M., & Kelly, J. (2002). For better or for worse. New York: Norton. Jekielek, S. M. (1998). Parental conflict, marital disruption and children’s emotional well-being. Social Forces, 76, 905–935. Johnston, J. R. (1999). Developing and testing a group intervention for families of impasse (Final report submitted to the State-Wide Office of Family Court Services, Center for Children, Families, and the Courts, San Francisco, Judicial Council of the State of California). Johnston, J. R. (2006). A child-centered approach to high conflict and domestic violence families: Differential assessment and interventions. Journal of Family Issues, 12, 15–36. Johnston, J. R, & Campbell, L. E. G. (1988). Impasses of divorce: The dynamics and resolution of family conflict. New York: Free Press.
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Johnston, J. R., Kline, M., & Tschann, J. (1989). Ongoing postdivorce conflict effects on children of joint custody and frequent access. American Journal of Orthopsychiatry, 59, 576–592. Johnston, J. R., & Roseby, V. (1997). In the name of the child. New York: Free Press. Johnston, J. R., Walker, M., & Friedlander, S. (2001). Therapeutic work with alienated children and their families. Family Court Review, 39, 316–333. Johnston, J., Walters, M., & Olesen, N. (2005). Is it alienating parenting, role reversal or child abuse? A study of children’s rejection of a parent in child custody disputes. Journal of Emotional Abuse, 5, 191–220. Kaczynski, K., Lindahl, K., Laurenceau, J., & Malik, N. (2006). Marital conflict, maternal and paternal parenting, and child adjustment: A test of mediation and moderation. Journal of Family Psychology, 20, 199–208. Kelly, J. B. (2000). Children’s adjustment in conflicted marriage and divorce: A decade review of research. Journal of the American Academy of Child and Adolescent Psychiatry, 39, 963–973. Kelly, J. B. (2002). Psychological and legal interventions for parents and children in custody and access disputes: Current research and practice. Virginia Journal of Social Policy and Law, 10, 129–163. Kelly, J. B., & Emery, R. E. (2003). Children’s adjustment following divorce: Risk and resilience perspectives. Family Relations, 52, 352–362. Kramer, K. M., Arbuthnot, J., Gordon, D. A., Rousis, N. J., & Hoza, J. (1998). Effects of skill-based versus information-based divorce education programs on domestic violence and parental communication. Family and Conciliation Courts Review, 36, 9–31. Krishnakumar, A., & Buehler, C. (2000). Interparental conflict and parenting behaviors: A meta-analytic review. Family Relationships, 49, 25–44. Lamb, M. E., Sternberg, K. J., & Thompson, R. A. (1997). The effects of divorce and custody arrangements on children’s behavior, development, and adjustment. Family and Conciliation Courts Review, 35, 393–404. Lansford, J. E., Malone, P. S., Castellino, D. R., Dodge, K. A., Pettit, G. S., & Bates, J. E. (2006). Trajectories of internalizing, externalizing, and grades for children who have and have not experienced their parents’ divorce or separation. Journal of Family Psychology, 29–301. Lee, M.-Y. (2002). A model of children’s postdivorce behavioral adjustment in maternal- and dual-residence arrangements. Journal of Family Issues, 23, 672–697. McLanahan, S. S., & Sandefur, G. (1994). Growing up with a single parent: What hurts, what helps. Cambridge, MA: Harvard University Press. Morrison, D. R., & Coiro, M. J. (1999). Parental conflict and marital disruption: Do children benefit when high-conflict marriages are dissolved? Journal of Marriage and the Family, 61, 626–637. Pedro-Carroll, J. (2005). Fostering resilience in the aftermath of divorce. Family Court Review, 43, 52–64. Pruett, M. K., Insabella, G. M., & Gustafson, K. (2005). The collaborative divorce project: A court-based intervention for separating parents with young children. Family Court Review, 43, 38–51.
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Pruett, M. K., & Johnston, J. R. (2004). Therapeutic mediation with high-conflict parents: Effective models and strategies. In J. Folberg, A. L. Milne, & P. Salem (Eds.), Divorce and family mediation: Models, techniques, and applications (pp. 92–111). New York: Guilford Press. Richmond, M. K., & Stocker, C. M. (2007). Changes in children’s appraisals of marital discord from childhood through adolescence. Journal of Family Psychology, 21, 416–425. Roseby, V., & Johnston, J. R. (1998). Children of Armageddon: Common developmental threats in high-conflict divorcing families. Child and Adolescent Psychiatric Clinics of North America, 7, 295–309. Salter, M., Konrad, S. C., Webb, D., Weyand, T., Wiggin, S., French, J., et al. (2003). The Kids First program for parents in high conflict. Portland, ME: Kids First Center. Shifflett, K., & Cummings, M. E. (1999). A program for educating parents about the effects of divorce and conflict on children: An initial evaluation. Family Relationships, 48, 79–89. Skopp, N. A., McDonald, R., Manke, B., & Jouriles, E. N. (2005). Siblings in domestically violent families: Experiences of interparent conflict and adjustment problems. Journal of Family Psychology, 19, 324–333. Sturge-Apple, M. L., Davies, P. T., & Cummings, E. M. (2006). Hostility and withdrawal in marital conflict: Effects on parental emotional unavailability and inconsistent discipline. Journal of Family Psychology, 20, 227–238. Thoennes, N., & Pearson, J. (1999). Parent education in the domestic relations court: A multisite assessment. Family and Conciliation Courts Review, 37, 195–218. U.S. Bureau of the Census, 1999. Wallerstein, J., Lewis, J. M., & Blakeslee, S. (2000). The unexpected legacy of divorce: The 25 year landmark study. New York: Hyperion Books. Ward, M., & Deutsch, R. (2004, October). A pragmatic approach to visitation resistance. Paper presented at the 6th AFCC International Symposium on Child Custody Evaluations, Nashville, TN. Wolchik, S. A., Sandler, I. N., Winslow, E., & Smith-Daniels, V. (2005). Programs for promoting parenting of residential parents: Moving from efficacy to effectiveness. Family Court Review, 43, 65–80.
CHAPTER 15
Evaluating Child Sexual Abuse Allegations KATHRYN KUEHNLE and MARY CONNELL
C
allegations raise complex and difficult psycholegal challenges for the forensic mental health professional. The legal proceedings involving allegations of child sexual abuse may occur simultaneously or sequentially in multiple contexts, including dependency, family, juvenile, criminal, and civil courts. In these various legal settings the forensic evaluator may assist the court on psycholegal issues such as a child’s competency to testify, the reliability of a child’s statements, the identification of factors that support or contradict findings of sexual abuse, and the identification of long-term damage to a child resulting from sexual abuse. Among these evaluation contexts, child custody and access issues complicated by allegations of child sexual abuse present particularly difficult challenges to the evaluator. To competently assist the court on the psycholegal issues involving allegations of child sexual abuse, forensic mental health professionals need to be knowledgeable about children’s psychological development, particularly sexual and nonsexual behaviors, development of memory, children’s susceptibility to suggestibility, and the circumstances that enhance children’s ability to narrate accurate information about past events. This chapter presents an empirical foundation for these important topics to assist forensic evaluators in their assessment of child sexual abuse allegations embedded in litigated cases of child custody. HILD SEXUAL ABUSE
INCIDENCE OF CHILD SEXUAL ABUSE ALLEGATIONS IN CONTESTED CUSTODY MATTERS Precise information is not available on the overall national or state percentages of dissolution cases that involve minor children, divorcing parents 375
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unable to agree on custody or visitation arrangements, contested custody cases in which evaluators become involved, or contested child custody matters that proceed to a final child custody hearing. Although some experts claim that a high percentage of litigated child custody disputes are accompanied by child sexual abuse allegations, the available research is too limited to draw reliable conclusions. Several preliminary studies have found that approximately 1% to 2% of contested custody cases involve an allegation of child sexual abuse (McIntosh & Prinz, 1993; Thoennes & Tjaden, 1990), although this appears to be a gross underestimate of the actual occurrence of abuse allegations embedded in contested custody matters (see Kuehnle & Kirkpatrick, 2005). There is an absence of solid empirical evidence on the accuracy of child sexual abuse allegations associated with custody matters, and researchers have speculated on the approximate occurrence of false allegations. Authorities estimate that the rate of false allegations range from 6% to 8% (Faller, 1991; Jones & McGraw, 1987) for calculated lying and from 23% to 35% (Ceci & Bruck, 1995) if criteria for false allegations are broadened to include inaccurate memories and false statements associated with suggestive questioning and socially desirable responding, respectively (see Poole & Lamb, 1998). False allegations may, of course, be based on overinterpretation or misinterpretation of events and symptoms or, more rarely, may be deliberately contrived (Faller, 1991; McGleughlin, Meyer, & Baker, 1999). Faller hypothesized that, proportionally, more false accusations of sexual abuse may be made in the context of divorce than in other situations, and the majority of false allegations are made by adults rather than children. There are only a few scientific studies that have investigated the issue of custody matters and false child sexual abuse allegations. Almost 2 decades ago Thoennes and Tjaden (1990) conducted the largest study (N ¼ 9,000) to date on sexual abuse allegations in contested cases involving child custody. Allegations were substantiated in 50% of their sample; 33% of their sample involved no abuse, and 17% of the allegations resulted in indeterminate rulings. The categorization of cases was based on the findings of custody evaluators and child protection workers rather than of judicial decision makers, which makes these findings less reliable. To date, no further research has been designed or implemented to produce reliable data on the percentage of contested child custody cases that are accompanied by false sexual abuse allegations (see Ellis, 2000). In cases of false allegations, clear evidence that the allegations are false is almost always absent. It is difficult, if not impossible, to indisputably prove a negative (e.g., a particular child was never sexually abused; Kuehnle & Kirkpatrick, 2005). Powerful indeed, sexual abuse allegations present a significant challenge to family courts. The court may have tremendous difficulty attaining reliable information regarding whether abuse actually occurred. Courts are further tasked with deciding which parent will
The Role of the Forensic Evaluator in Child Custody 377
ultimately cause the least amount of harm to the child when the allegation may be true or a manipulation of the child’s memory by a parent. THE ROLE OF THE FORENSIC EVALUATOR IN CHILD CUSTODY CASES WITH ALLEGATIONS OF CHILD SEXUAL ABUSE The forensic evaluation of child sexual abuse allegations requires specialized training and should not be undertaken by mental health professionals without adequate preparation (American Psychological Association, 1994, 2002; Association of Family and Conciliation Courts, 2006; Committee on Ethical Guidelines for Forensic Psychologists, American Psychology-Law Society and Division 41 of the APA, 1991). Although this caution is relevant to the provision of all mental health services, child sexual abuse evaluations are particularly vulnerable to the incorporation of misinformation created by uninformed interview techniques or interviewer bias. Kuehnle and Kirkpatrick (2005, p. 12) proposed that, depending on the evaluator’s area of expertise, he or she may conduct these complex custody evaluations utilizing any of the following strategies: a. Conduct all components of the custody evaluation and allegations of sexual abuse with or without consultation. b. Conduct all components of the custody evaluation and assessment of the alleged child victim, with another expert consulting or conducting the assessment of the alleged sexual offender. c. Conduct all components of the custody evaluation and the assessment of the alleged sexual offender, with another expert consulting or conducting the assessment of the alleged child victim. d. The evaluator may decline to take the case altogether.
Unless the suspicion of child sexual abuse arises during the custody evaluation it is likely that the child will have been formally forensically interviewed at least once before the custody evaluation has commenced. If the allegation first arises during an assessment, the evaluator should stop the custody evaluation and take necessary steps to report the allegation to the appropriate state authorities (Kuehnle & Kirkpatrick, 2005). The evaluator may then notify the court of the allegation and, in consultation with the court, determine whether to solely conduct the assessment of the complex custody case with allegations of child sexual abuse or work in conjunction with another professional on different aspects of the evaluation. An important task for evaluators is to assess circumstances under which the concern about sexual abuse arose and the methods by which the child’s statements were elicited or triggered. Each element in the emergence of the allegation is of interest: the relationships among the child, alleged incestuous parent, incestuous family member, or other identified household member
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prior to disclosure; the relationship between the child and the nonoffending parent or caregiver before and after disclosure; the issues that raised the initial abuse concern; the methods by which those issues were explored; the questions the child was asked; the child’s responses and behavior toward both the caregiver and the suspected abuser as the suspicions were explored; and the responses of each adult with whom the child interacted about the concerns. CHILDREN’S BEHAVIORS MISCONSTRUED AS INDICATORS OF SEXUAL ABUSE Historically, children’s behaviors have been used to support conclusions on allegations of sexual abuse without considering empirically derived base rates of behaviors or what might constitute normative behaviors. Many mental health professionals and laypeople believe the myth that the experience of sexual abuse is verifiable in the child’s behavior and erroneously assume that sexual abuse causes all or most children to be traumatized and to regress in their self-regulation of behaviors and bodily functions. This myth has led to the misinterpretation of behaviors as markers of sexual abuse when those behaviors may be normative, may be symptomatic of situational stress associated with divorce or a move, or may be symptomatic of other life stress. One of the most important findings from the past several decades of research in this area is that no single sign or symptom, including aberrant sexualized behavior, characterizes the majority of sexually abused children (Friedrich, 2005; Gratz & Orsillo, 2003; Hagen, 2003). Faust and his colleagues (Faust, Bridges, & Ahern, in press) report that an indicator variable for child sexual abuse must have the characteristics of validity and differentiating value. In this context, validity means an association between that variable (e.g., behavioral outcome) and the occurrence of child sexual abuse. For example, if child sexual abuse produces or increases sexually aggressive behavior, then there is a true or valid association between sexual abuse and sexually aggressive behavior. A variable may be valid (i.e., show a true association with sexual abuse) even if it applies only to some, or a minority, of sexually abused individuals. Validity alone, however, is not sufficient for a variable to be useful as an indicator of sexual abuse. The variable must also have differentiating value. A differentiating value for child sexual abuse is defined as a variable that separates children who have been sexually abused from children in general. For a characteristic to be differentiating it must occur more frequently in the group of interest than in the general population (Faust et al., in press). For example, if 35% of all sexually abused children exhibited seizures in contrast to 10% of all non–sexually abused children in the general population, then seizure behavior would have a differentiating value. If a variable had a perfectly differentiating value for child sexual abuse, the variable associated
Children’s Normative Behaviors and Mental Disorders 379
with the abuse would be exhibited solely by sexually abused children and would never occur in non–sexually abused children. For example, if all children who were sexually abused showed fear of dogs and no children in the general population of non–sexually abused children showed fear of dogs, fear of dogs would have perfect differentiating value for child sexual abuse. Perfect differentiating values have not been identified that discriminate sexually abused from non–sexually abused children. However, it is not uncommon for professionals and laypersons to misidentify variables as indicators of sexual abuse that show validity with child sexual abuse but are absent differentiating values, such as sexually aberrant behavior, Posttraumatic Stress Disorder, or eating disorders. There are many variables in psychology that are valid but are not differentiating (Faust, Bridges, & Ahern, in press). Although problems in children’s elimination of body waste or eating disorders may have validity as indicators for child sexual abuse and be severe enough to meet the psychiatric diagnoses of Enuresis, Encopresis, Anorexia Nervosa, or Bulimia (American Psychiatric Association, 2002), these behaviors are not unique to children who have been sexually abused. Furthermore, the experience of sexual abuse does not create a pattern of symptoms that represents a diagnostic category of child sexual abuse. The symptoms that sexually abused children may exhibit vary significantly and are influenced by child’s personality, personal interpretation of the abuse event, identity of the perpetrator, characteristics of the sexual acts, co-occurring forms of family violence, family stability, and the parental or caregiver response following disclosure (Nagel, Putnam, Noll, & Trickett, 1997; Shipman, Rossman, & West, 1999). Many practitioners and laypersons tend to overlook the fact that a substantial percentage of sexually abused children (21% to 49%) are asymptomatic, and that only a minority of these children (10% to 25%) show increased symptoms over a 2-year postabuse period (Kendall-Tackett, Williams, & Finkelhor, 1993). As noted by Chaffin et al. (1997), sexual abuse is not an experience leading in some simple and direct manner to a single symptom or syndrome. Kuehnle (1998a) opined that when sexual abuse is conceptualized as a discrete clinical syndrome, evaluators may inappropriately identify test data and symptoms as supportive of their relegation of a child to a fictional homogeneous group labeled ‘‘sexually abused children’’ who purportedly suffer from a set pattern of symptoms. Children who have been sexually abused are no more apt to be alike in their psychological functioning than are children who have experienced other stressful or traumatic events. CHILDREN’S NORMATIVE BEHAVIORS AND MENTAL DISORDERS Many of the behaviors and symptoms often cited as sequelae of child sexual abuse, such as nightmares, bedwetting, regressive or clingy behavior, and sexual curiosity, have been noted to occur among non–sexually abused
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children as well (Poole & Wolfe, in press). Evaluators may find it useful to be aware of and take into account the base rates of these behaviors in the general population before concluding that their presence is evidence that a child has been sexually abused. Although some sexually abused children exhibit problems with their internal regulation involving sleep, eating, toileting, somatic discomfort, ritualistic or compulsive behavior, and fears, these behaviors are not useful indicators of sexual abuse by themselves because they are so frequently exhibited by non–sexually abused children (see Achenbach, 1991). Poole and Wolfe provide a review of empirical evidence regarding children’s normative behavior problems that is summarized, in part, in the following sections. EATING, SLEEP, ELIMINATION
OF
BODY WASTE,
AND
FEARS
Poole and Wolf (in press) report that body image problems and dieting are now normative issues both during and before the adolescent years: 58% of the sixth grade girls in one survey wanted to be thinner (Koff & Rierdan, 1991) and 62% of females and 30% of males in the 9th through 12th grades were trying to lose weight (Eaton et al., 2006). Dunn and colleagues (Thompson, Heinberg, Altabe, Tantleff-Dunn, 1999) surveyed parents of sixth and seventh grade children and found 73% thought their children had a body image problem and 48% were concerned about eating disorders. Eating disorders have been on the increase over the past several decades. As noted in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, text revision (DSM-IV-TR), diagnoses for eating disorders are characterized by severe disturbances in eating behavior. Two primary diagnoses are Anorexia Nervosa (refusal to maintain a minimally normal body weight) and Bulimia Nervosa (episodes of binge eating followed by compensatory behaviors, such as self-induced vomiting, overuse of laxatives, excessive exercise). The prevalence of Anorexia Nervosa among females is 0.5%; more than 90% of cases of Anorexia Nervosa occur in females; and the disorder typically begins in mid- to late adolescence (i.e., ages 14 to 18). When the disorder develops with prepubescent individuals the severity of the associated mental disturbances may be greater (American Psychiatric Association, 2002). The prevalence of Bulimia Nervosa among females is 1% to 3%; more than 90% of cases of Bulimia Nervosa occur in females; and the disorder typically begins in late adolescence or early adult life (American Psychiatric Association, 2002). Eating disorders also tend to run in families, with female relatives most often affected. For instance, a girl has a 10 to 20 times higher risk of developing Anorexia Nervosa if she has a sibling with the disease. This finding suggests that genetic factors may predispose some people to eating disorders. Behavioral and environmental influences may also play a role. Stressful events
Children’s Normative Behaviors and Mental Disorders 381
are likely to increase the risk of eating disorders as well (National Alliance on Mental Illness, 2003, 2006). Sleep problems are exhibited by a substantial number of children throughout childhood. As reviewed by Poole and Wolfe (in press), in various studies parents reported that about 25% of 1- to 5-year-olds have some type of sleep problem (Mindell & Dahl, 1998); 43% of parents said their 8- to 10-year-olds were experiencing a sleep problem that had lasted more than 6 months (Kahn et al., 1989). Approximately 20% of children were found to have at least one episode of sleepwalking, up to 50% of preschool-age children have nightmares (Mindell & Dahl, 1998), and 6% to 13% of preschool-age children experience night terrors (Goldin & Rosen, 1997; Mindell & Dahl, 1998). As reported in the DSM-IV-TR, night terrors occur during non-REM sleep, are not remembered, and are accompanied by thrashing, crying, sweating, and confusion (American Psychiatric Association, 2002). Genetic differences account for some of the variability in sleep disturbances (Gregory, Rijsdijk, & Eley, 2006). The presence of family conflict is also related to sleep disturbances (El-Sheikh, Buckhalt, Cummings, & Keller, 2007). Children’s toileting problems are less common than sleep problems but also are demonstrated by a significant number of children. As reported in the DSM-IV-TR, Enuresis (repeated voiding of urine into bed or clothes) occurs at a prevalence rate of approximately 5% to 10% among 5-year-olds, 3% to 5% among 10-year-olds, and 1% among individuals 15 years and older. Urinary tract infections are more common in children with Enuresis (American Psychiatric Association, 2002). About 15% of children with nocturnal Enuresis also wet during the day, and 15% experience Encopresis (fecal soiling or repeated passage of feces in inappropriate places; Jalkut, Lerman, & Churchill, 2001). As reported in the DSM-IV-TR, Encopresis occurs less frequently than Enuresis, with a prevalence of approximately 1% of 5-year-olds. Fecal soiling is more common in boys than in girls. Inadequate and inconsistent toilet training and psychosocial stressors (e.g., entering school, birth of a sibling, parents’ divorce) may be precipitating factors. Fecal soiling is typically involuntary, but in some cases, often in conjunction with features of Oppositional Defiant Disorder or Conduct Disorder, it appears to be intentional. When passage of the feces is involuntary, it is often related to constipation, impaction, and retention with subsequent overflow. According to the DSMIV-TR, physiological predispositions to constipation include ineffectual straining, with contraction rather than relaxation of the external sphincter. Constipation may develop for psychological reasons (anxiety about defecating in a particular place or a more general pattern of anxious or oppositional behavior). When constipation has developed, it may be complicated by further problems, such as an anal fissure and painful defecation (American Psychiatric Association, 2002).
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As noted by Poole and Wolfe (in press), all children express fears, which change into different types of fears as children gain cognitive maturity. Children 4 years and younger experience separation fears (e.g., staying with a babysitter or at a day care), fear of strangers, and bedtime fears (e.g., fear of the dark and monsters). From 4 to 7 years of age children experience fear of death (both their own and the death of someone in their family). Fears of personal harm emerge and remain prominent for the rest of childhood (Evans, Gray, & Leckman, 1999). Research indicates that fears can also be modeled and reinforced by a caretaker’s behavior (Egliston & Rapee, 2007; Gerull & Rapee, 2002). This behavior can include shaping children’s fear of specific people, including a noncustodial parent. Research supporting this observation is drawn from the stereotype induction studies conducted by Ceci and his colleagues (see, e.g., Leichtman & Ceci, 1995), who found that children who were told negative things about a person made increasingly serious allegations regarding that person’s behavior. Although it is not certain that the children actually feared the person for whom a negative stereotype had been induced, these results suggest that children might be expected to behave as if they were frightened of a person they had been taught to believe was a bad person. SEXUAL BEHAVIORS As noted by Kuehnle (1996), studies from infancy through adolescence indicate that children are sexual beings. Babies of both sexes are capable of orgasm, although males do not ejaculate until puberty (Crooks & Baur, 2002). Physical coordination necessary for rhythmic masturbation is in place by 2 to 3 years. Sexual behavior between children is strongly influenced by culture. In the United States and Westernized European nations, preschool-age children compare their bodies to others’ and touch other children’s bodies, and school-age children play games that involve sexual exposure (Friedrich, 2005; Friedrich, Sandfort, Oostveen, & Cohen-Kettenis, 2000; Sandnabba, Santtila, Wanna¨s, & Krook, 2003). The most commonly occurring sexual behaviors observed by preschool teachers in the United States include limited looking at and touching by preschoolers of each other’s genitals, simulated sexual intercourse, and drawing genitalia. Children’s inserting anything into another child or engaging inoral-genital contact israrelyobservedbyteachersorparents (Davies,Glaser,& Kossoff, 2000; Friedrich, Grambsch, Broughton, Kuiper, & Beilke, 1991). Sexual behaviors are likely to be repeated by children because they are reinforced due to the intimacy, arousal, or orgasm or tension reduction associated with them (Poole & Wolfe, in press). Although not specific to sexually abused children, aberrant sexual behavior is considered the most explicit effect and one of the most treatment-resistant symptoms associated with sexual abuse (Friedrich, 1993, 2005). Researchers
Reliability of Parents’ Perceptions and Professionals’ Decision Making 383
have found that a significant number of children with sexual behavior problems do not have a history of sexual abuse. The majority of these non– sexually abused children with sexual behavior problems are found to have experienced other forms of family violence (Bonner, Walker, & Berliner, 1999; Pithers, Gray, Busconi, & Houchens, 1998; see Chaffin, Berliner, Block, et al., 2006) or exposure to explicit family sexuality, involving recurrent visual exposure to sexual material and family members’ sexual activity (Friedrich, Grambsch, Broughton, Kuiper, & Beilke, 1991; Friedrich, Grambsch, Damon, et al., 1992). As noted by Bonner et al., the data support the idea that child maltreatment might increase the probability of children’s exhibiting sexually aberrant behaviors; however, it is not a necessary or sufficient variable in accounting for such behavior. RELIABILITY OF PARENTS’ PERCEPTIONS AND PROFESSIONALS’ DECISION MAKING Poole and Wolfe (in press) warn mental health professionals to be cautious in their reliance on parents’ descriptions of their children’s behavioral changes because these descriptions are not always complete or accurate. Perceptions of children’s behaviors may be distorted by cognitive bias, such as ‘‘illusory correlations,’’ which is the tendency to believe that two events are associated when, in fact, they are not (Chapman, 1967; Hamilton & Rose, 1980), and ‘‘confirmatory bias,’’ which is the tendency to attend to information that confirms one’s belief and to ignore data that negate one’s belief. For example, due to illusory correlations, a parent in a custody case who believes that viewing adult pornography or sleeping or bathing with one’s preschool child are markers of pedophilia may extend this conclusion to a belief that the other parent is sexually abusing their child. Due to confirmatory bias, some parents in custody cases expect their children to be anxious and fearful when visiting the other parent and may notice only the times their children’s behavior deteriorates following a visit with the other parent. These types of errors occur when the parent remembers times the two events co-occurred but fails to remember times when one event occurred without the other (Lassiter, Geers, Munhall, Ploutz-Snyder, & Breitenbecher, 2002). Poole and Wolfe (1995) assert that children and adults alike often lack awareness of why they behave the way they do. Wilson (2002) found that people frequently made something up when asked why they behaved the way they did. As a result, asking children why they are acting a particular way may compel them to provide a response, even making up one if necessary, to please their parent or an adult. When such questions are posed in suggestive or leading ways, children’s responses may affirm their parents’ suspicions, even unfounded ones. The climate of suspiciousness, harsh judgment, and anger in
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high-conflict custody cases can complicate the evaluation of child sexual abuse allegations because children in these circumstances may experience a wide variety of stress-related reactions that mimic some children’s reactions to sexual abuse (Poole & Wolfe, in press). Furthermore, mental health professionals must be cautious in reporting findings based on their clinical judgment on the credibility of children’s statements in cases of child sexual abuse. After reviewing the research, Herman (2005, in press) raised significant concerns about the reliability, validity, and accuracy of evaluators’ clinical judgments about uncorroborated allegations of child sexual abuse. Herman concluded that at least 24% of professional judgments about uncorroborated allegations of sexual abuse are erroneous—either false-positive errors (wrongful substantiations of false allegations) or falsenegative errors (failures to substantiate true allegations). Based on Herman’s findings, when the parent’s uncorroborated report is the only data available to support the child’s verbal statement, there is reason to be conservative in professional judgments. THE DEVELOPMENT OF MEMORY Children may delay reports of sexual abuse incidents for days, weeks, or even years (Pipe et al., 2007), raising concerns about memory when the child makes a delayed allegation. To assist the trier of fact, the evaluator must be familiar with memory development and age-specific estimates about what children can recall. There is substantial empirical evidence that some form of immature memory is present in utero (DeCasper, Lecanuet, Busnel, GranierDeferre, & Maugeais, 1994; DeCasper & Spence, 1986). Howe and Courage (1997a) warn that infants’ retention of prenatally exposed auditory stimuli for several hours after birth is not equivalent to remembering one’s life events in utero. In addition to auditory memory, newborns and infants are also found to exhibit some form of immature memory regarding smells and visual stimuli. Newborns encode and retain a memory for smells, and the resulting familiarity influences their behavior (Goubet, Rattaz, Pierrat, Bullinger, & Lequien, 2003). Infants’ visual memories, although limited by their poor acuity, can also be demonstrated soon after birth in their preferences for their mother’s face over the faces of others (Bushnell, 2001). Although 2-month-old infants demonstrate little retention after 3 days (Greco, Rovee-Collier, Hayne, Griesler, & Early, 1986), some meaningful (i.e., causally organized) compared to nonmeaningful (i.e., randomly organized) event sequences can be remembered by 11- and 12-month-old infants for up to 3 months (Howe & Courage, 1997b; Mandler & McDonough, 1995), and for over 8 months by 13- to 21-month-old toddlers (Bauer, 1996; Bauer, Hertsgaard, & Dow, 1994). During the toddler years, with the emergence of language and a sense of oneself
The Development of Memory 385
as an independent entity, there is also a simultaneous emergence of autobiographical memory (i.e., memory for events and issues related to oneself, including memories for specific experiences and the personal facts of one’s life; Fivush & Nelson, 2004; Nelson & Fivush, 2004; see Howe, Cicchetti, & Goodman, 2008). At the age of 3 or 4 years children have developed a basic foundation to recall recent and distant events. There are also significant developments in memory in middle childhood (DeMarie & Ferron, 2003). Emerging research indicates that what determines retention is the unique, distinctive, and personally consequential nature of the experience rather than whether the experience was positive or negative (see Howe et al., 2008). Such memories are well remembered for periods of up to 6 years during childhood (Conway, 1996; Fivush & Schwartzmueller, 1998; Howe, 1997). In memory research an important distinction is made between semantic and episodic memory (Tulving, 1983). Semantic memory is the long-term storage of an individual’s world knowledge. The semantic memory of a school-age child for ‘‘lizard,’’ for example, includes the knowledge that lizards are reptiles, vary in size, and are insectivores. In contrast to the general accumulation of world knowledge that makes up semantic memory, episodic memory is memory of specific events. The episodic memory for ‘‘lizard’’ by a child living in Florida might include multiple nonspecific memories of lizards scurrying along the city sidewalks or a salient memory of an unusual event, such as having a lizard put down one’s shirt by a playmate. World knowledge gained in early and middle childhood about common events aids in children’s interpretation of those events; consequently, by middle childhood children are better able to recall autobiographical information (see Peterson & Whalen, 2001; Pillemer, Picariello, & Pruett, 1994; Quas, Goodman, Bidrose, Pipe, Craw, & Ablin, 1999). As noted by Klemfuss, Ceci, and Bruck (in press), episodic memory is central to any discussion of children’s eyewitness testimony because professionals are usually interested in the children’s recollection of specific events, not their general knowledge. Although young children typically are familiar with interviewers asking questions about their semantic memory (e.g., ‘‘What is the name of this animal?’’), they are not familiar with interviewers requiring them to narrate their episodic memory (what they experienced). The three main phases or stages of the memory system are encoding, storage, and retrieval. The retrieval stage is addressed again in the section on interviewing children. Encoding involves the process of information initially coming into the memory system and being stored (i.e., what gets attended to, how it gets represented in memory). Because it is impossible to attend to everything in an event, certain aspects of an event are encoded and other aspects are ignored. As identified by Klemfuss et al. (in press), factors affecting encoding include the processing speed of children, with older children encoding more information in less time (Hale, 1990; Kail, 1996, 2007; Kail & Ferrer,
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2007); individual’s expectations about and familiarity with the event (Hudson, Fivush, & Kuebli, 1992; Leichtman & Ceci, 1995); duration of the event (Leippe, Romanczyk, & Manion, 1991); stress level at the time of its encoding (Hall & Berntsen, 2008); and the sensory conditions of the stimuli (e.g., illumination, loudness). Researchers continue to argue over whether memories for traumatically stressful events are processed in a substantially different way than for nontraumatic stressful events (Alpert, 1995; Hembrooke & Ceci, 1995; Howe, Courage, & Peterson, 1994; Whitfield, 1995; also see Howe et al., 2008). According to Howe (2000), memories for traumatic events appear to adhere to the same principles as memories for less salient events, and will endure to the extent that they remain unique and distinctive against a background of other experiences. Results from empirical studies suggest that stressful and traumatic memories tend to be governed by similar, general age-related mechanisms that operate in long-term storage of nontraumatic memories (Malloy & Quas, in press; Quas, Goodman, Bidrose, Pipe, Craw, & Ablin, 1999). In contrast to theories that explain memories of traumatic events as adhering to the same principles as memories of nontraumatic events, other models suggest that physiological components are associated with traumatic stress, and as a result produce problems with accessing traumatic memories (Bremner, Krystal, Southwick, & Charney, 1995). Bremner and his colleagues propose that traumatic stress creates abnormalities in the functioning of brain regions involved in memory, which is revealed in lower left hippocampal volume in survivors of child physical and sexual abuse. Another model of memories for traumatic events is the traumatic amnesia model. The proponents of this trauma model assert that when children are confronted with trauma they (a) are unable to process the information, (b) employ the defense mechanism of dissociation, and (c) compartmentalize the unintegrated memory, which consists mainly of sensory perceptions and affective states (van der Kolk & Fisler, 1995; van der Kolk & van der Hart, 1991). Poole and Wolfe (in press) note that although the terms repression and dissociation are often used interchangeably to explain traumatic amnesia, repression involves removing from consciousness memories that have already been encoded, whereas dissociation implies an alteration of the encoding process itself. Van der Kolk and his colleagues (van der Kolk & Fisler, 1995; van der Kolk & van der Hart, 1991), and other researchers who support a model of traumatic amnesia, suggest that recovery of repressed or dissociated memories is possible under the right retrieval conditions, such as when psychological defense mechanisms are in a weakened state (e.g., in a supportive therapeutic setting) or when sensory or affective cues closely match elements of the trauma. Much of the research on children’s memories for stressful or traumatic experiences has focused on one-time nonabusive traumas, such as school
Children’s Suggestibility 387
shootings, hurricanes, and physical injuries (Peterson & Whalen, 2001). In contrast to the theory of traumatic amnesia, this research suggests that these types of traumatic events tend to be remembered quite well when experienced during childhood, although they are considerably less likely to be recalled when experienced during infancy or toddlerhood. Pynoos and Nader (1989) note that episodic memory involves reconstruction rather than exact reproduction of the memory for the event. When investigating the memory of elementary school-age children exposed on the school playground to a sniper attack, these researchers found that the children altered their memory or spatial representation of the incident (i.e., how far they were from the direct line of fire) in order to alter their degree of life threat and possibly to minimize the renewal of traumatic anxiety and fear. (For further information on stress, trauma, and children’s memory development, see Howe, Cicchetti, & Goodman, 2008, who address neurobiological, cognitive, clinical, and legal perspectives related to these areas of children’s memory.) CHILDREN’S SUGGESTIBILITY Child sexual abuse evaluators should consider the possibility of various contaminating factors in evaluating the meaning of children’s reports (Kuehnle & Sparta, 2006). As observed by Kuehnle (2002), memory for experience is reconstructive, with autobiographical recall filtered through one’s current beliefs, knowledge, expectations, and motivations (see Howe, 2000). As a result, memory is subject to influences and, depending on the suggestibility of the individual, may include the construction of inaccurate recollections (see Brainerd & Reyna, 1996; Bruck & Ceci, 1995). Suggestibility generally refers to the propensity to make errors when exposed to information that is false or to social pressures that encourage particular types of answers (see Bruck & Ceci, 1997). Children’s vulnerability to contamination of their episodic memory is increased with repetitive and delayed interviews containing misinformation or requests for speculation. Malloy and Quas (in press) observe that across studies the factors of repetition, interview delay, and interview context (or interviewer bias) have yet to be adequately disentangled. Children’s exposure to false information can interfere with their source monitoring (i.e., the process of identifying the origin of one’s knowledge) and influence the accuracy of their recollections (see Ceci & Bruck, 1993). The most robust internal child factors associated with suggestibility are the child’s age and developmental level. Young preschoolers (i.e., ages 3 and 4) are most vulnerable to suggestive interviewing; 6- and 7-year-old children show significant increases in resistance to misinformation (Ceci & Bruck, 1993). The age at which children reach adult levels of resistance is debated, with some studies finding that children as young as 10 years show this level of
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resistance (Saywitz & Dorado, 1998) and other research finding early adolescence as the marker (Warren & Lane, 1995). Despite increasing levels of resistance, under some circumstances older children, adolescents, and adults are vulnerable to suggestibility and contamination of episodic memory (Griesel & Yuille, 2007; Porter, Yuille, & Lehman, 1999). However, Harris et al. (in press) remind professionals that many children show remarkable resistance to false suggestions and assert that practitioners, scientists, and laypersons sometimes lose sight of that fact, given the strong attention currently devoted to children’s suggestibility and to the risk of false reports. Children’s individual differences, such as self-confidence (Vrij & Bush, 2000), creativity (Shapiro & Purdy, 2005), intelligence (Chae & Ceci, 2005; Eisen, Goodman, Qin, Davis, & Crayton, 2007), executive functions (Alexander et al., 2002), and cultural beliefs and expectations (Bottoms, Shaver, & Goodman, 1996; Goodman et al., 1997; Quas et al., 1999), are associated with vulnerability or resistance to suggestibility. Vrij and Bush (2000) found that children with greater self-confidence are less vulnerable to adults’ suggestions containing misinformation. Conversely, more creative children show greater vulnerability to suggestion. Shapiro and Purdy (2005) speculate that creative children may be more likely to make up stories, at least when taking part in high-pressure interviews. Higher intelligence is found to be associated with lower susceptibility to suggestibility. As pointed out by Harris et al. (in press), it is undetermined exactly how various kinds of intelligence, such as verbal versus nonverbal intelligence, fluid (e.g., on-the-spot problem solving and abstract reasoning) versus crystallized intelligence (e.g., vocabulary, general information), and practical versus analytical intelligence, are differentially related to children’s susceptibility to suggestibility. Children’s executive functions are also found to be associated with resistance to suggestibility. Alexander et al. (2002) propose that better executive function may bolster resistance to suggestion by making it easier to inhibit the more recently encoded misinformation or to keep both the reality of what occurred and false suggestions in working memory simultaneously, which may foster accurate monitoring of the sources of such information. Further, cultural factors may influence vulnerability to suggestions. For example, Bottoms and her colleagues (1996) provide evidence that children who believe in the devil may be more susceptible to suggestions about satanic ritual abuse. Quas and her colleagues (1999) also found that children from cultures that foster or require children’s agreement with adults may be more vulnerable to adult interviewers’ suggestions. Harris et al. (in press) caution that the predictive power of these individual differences is most likely too weak to be a determining factor for the courts in specific cases, and many children would be misclassified, either as accurate or inaccurate witnesses, if legal decision making relied too heavily on these individual-difference findings.
Children’s Suggestibility 389
Children’s resistance to suggestion is often an interaction of individual child and interview factors. Some research suggests that interview factors are more important than children’s individual characteristics in determining resistance to suggestion (e.g., Finnila, Mahlberg, Santtila, Sandnabba, & Niemi, 2003). Research findings consistently show that when certain conditions are met (e.g., neutral interviewer, open-ended questioning, absence of repeated suggestive interviewing, and no induction of a motive for the child to make a false report) even very young children’s recall is highly accurate, although limited in the number of details (Baker-Ward, Gordon, Ornstein, Larus, & Clubb, 1993; Parker, Bahrick, Lundy, Fivush, & Levitt, 1999). Conversely, research also is consistent in showing that when other unfavorable external interview factors are present children’s suggestibility errors increase. These factors include repetitious questioning (see Fivush & Schwartzmueller, 1995; Poole & White, 1995), the interviewer’s biased questioning, inappropriate reinforcement of a child’s responses (Carter, Bottoms, & Levine, 1996; Goodman, Bottoms, Schwartz-Kenney, & Rudy, 1991; Lepore & Sesco, 1994; Tobey & Goodman, 1992), bias (see Ceci & Bruck, 1995), and yes-no question pairs (Peterson & Bell, 1996; Peterson & Briggs, 1997). When interviewers ask numerous specific questions and the format involves yes-no question pairs (i.e., a yes-no question followed by a request to describe the event: ‘‘Did Uncle Paul . . .?’’ ‘‘Tell me about that.’’), children are at risk to provide inaccurate and possibly confabulated information (see Kuehnle, 1996; Poole & Lindsay, 1995). Repeating closedended or specific questions tends to elicit inconsistency and speculation by children (Poole & White, 1991, 1993). Garven, Wood, Malpass, and Shaw (1998, 2000) found that the combination of suggestive questions with social pressures created the highest number of errors, with children providing increasingly inaccurate information under such conditions. These researchers found that interviewers in the McMartin and other high-profile preschool sexual abuse cases increased children’s provision of inaccurate information by pairing misleading information with social pressures, including (a) the use of other people as examples (e.g., informing the child that other children had already told); (b) positive consequences (e.g., giving praise or approval); (c) negative consequences, (e.g., criticizing a child’s statement); (d) repeating a question the child had already answered; and (e) inviting the child to speculate on what might have happened, which significantly increased false reports over interviews that used only misleading questions. Remarkable contributions have been made by social science researchers and theoreticians to an understanding of the conditions under which children make errors in reporting and the ways to enhance accurate reporting. This is a heavily researched area with increasingly refined research paradigms so that generalizability to clinical practice is supportable. When applying what is
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known from research about children in general to an analysis of a particular child’s statements, it is critical to clarify both the research findings that might alert the fact finder to potential areas of contamination in the way the child was questioned and to indices of the child’s resistance to suggestion. Further, the limits of confidence must be expressed to the fact finder. Suggestive interviews, repeated interviews, and other contaminants can occur even though a child was abused; likewise, the child’s recollections may be correct or partially correct in spite of highly contaminated interview techniques. The contamination of a child’s memory does not disprove sexual abuse. For a comprehensive review of children’s suggestibility, refer to the amicus brief on suggestibility (Bruck & Ceci, 1995), written by the Committee of Concerned Social Scientists and signed by 43 memory researchers, submitted in the Kelly Michaels appeal. Also informative is the debate on suggestibility found in articles by Lyon (1999) and researchers Ceci and Friedman (2000) published in the Cornell Law Review. INTERVIEWING CHILDREN Children’s memories for traumatic and nontraumatic experiences may be reconstructed through questioning and prompts. How this occurs is critical to the accuracy of the memories that are reconstructed. As advised by researchers, when designing a child interview, the evaluator should consider five central factors that are found to strongly affect the witness capacities of children ranging in age from toddler through elementary school age: (1) children’s tendency to be reticent and generally uncommunicative with unfamiliar adults; (2) children’s familiarity with being tested by adults (e.g., ‘‘What is the name of this animal?’’) but lack of familiarity with adults treating them as sources of information that is unknown by the adult; (3) children’s poorer linguistic skills; (4) very young children’s poorer memory for events; and (5) children’s tendency to forget information more quickly (Lamb, Sternberg, & Esplin, 1994; Poole & Lindsay, 1998). Passage of time should also be considered, as time can affect both memory and suggestibility (Lamb, Sternberg, & Esplin, 1998). Interviews of children are challenging in general because of the limitations of children’s verbal development and imperfect capacity to narrate events to adults in a logical chronological sequence. The interviewer is typically a stranger to the child and must maintain the child’s cooperation, attention, and effort while attending to critical distinctions between well-phrased and poorly phrased questions. Even well-trained and experienced interviewers are vulnerable to errors that can significantly affect the accuracy of children’s reports (Brown & Lamb, in press). Research-based guidelines and recommendations for interviewing alleged sexually abused children form a consensus for the structure and sequence of
Interviewing Children 391
interview steps (American Professional Society on the Abuse of Children, 1996; Kuehnle, 1996; Lamb et al., 1994, 1995; Poole & Lamb, 1998; Raskin & Yuille, 1989). These steps include (a) development of rapport, (b) assessment of the child’s ability to answer questions and provide details, (c) identification of ground rules for the interview, (d) interview practice on non-abuse-related questions, (e) introduction of the sexual abuse topic beginning with openended questions, and (f) interview closure. Lamb, Orbach, Sternberg, Esplin, and Hershkowitz (2002) identified the following five types of questions (referred to as utterances) used by forensic interviewers: 1. Facilitators are nonleading evaluator prompts for the child to continue his or her narrative (e.g., a restatement of the child’s previous utterance and nonsuggestive words of encouragement, such as ‘‘okay’’). 2. Invitations elicit an open-ended response from the child (e.g., questions, statements, or imperatives, such as ‘‘And then what happened?’’). 3. Directive utterances focus the child’s attention on details or aspects of the event that have previously been introduced by the child. The majority are wh- questions, such as ‘‘What color was that couch?’’ 4. Option-posing utterances focus the child’s attention on aspects of the event that the child has not previously introduced. These questions have also been called leading questions and include questions such as ‘‘Were his clothes on or off?’’and ‘‘Did he tell you not to tell?’’ 5. Suggestive utterances strongly indicate what response the interviewer expects from the child or assume details that have not been mentioned by the child (e.g., ‘‘He told you not to tell, didn’t he?’’). The majority of these questions would be identified by mental health and legal professionals as leading. Recall testing encompasses the first three categories of the interviewer utterances and recognition testing encompasses the last two categories. Recall testing produces the most accurate information. Several protocols have been set forth to assist interviewers when they are attempting to facilitate a child’s recollection and narrative of the important details of an event. Among others, these include the Cognitive Interview (Fisher, Geiselman, Raymond, Jurkevich, & Warhaftig, 1987), the National Institute of Child Health and Human Development (NICHD) Investigative Interview Protocol (Orbach et al., 2000), the Narrative Elaboration Technique (Saywitz & Snyder, 1993, 1996), and the RATACTM Method (Walters, Holmes, Bauer, & Vieth, 2003). These protocols incorporate the generally accepted structure and sequence of interview steps and emphasize recall testing. Presently, the NICHD protocol has the greatest research support (see Brown & Lamb, in press, for a review; also, Lamb, Orbach, Hershkowitz,
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Esplin, & Horowitz, 2002). The NICHD protocol includes a sequence of nine nonsubstantive and substantive phases. This protocol uses the widely accepted funnel approach, in which interviewers begin with open-ended questions, proceed to more direct questions with caution, and then move the interview back to open-ended probes that again elicit narrative information. Preliminary findings indicate that compared to interviewers who improvise, child protection interviewers using the NICHD protocol retrieve more information using open-ended questions, conduct better organized interviews, follow focused questions with open-ended probes (pairings), and avoid more potentially dangerous interview practices (Lamb et al., 1998). Interviews of children to determine sexual abuse should follow a researchbased protocol and should be conducted only by those with adequate specialized training. They should be video-recorded to allow for analysis of the child’s statements and how they were elicited. CONCLUSION Academic researchers and mental health professionals continue to search for exactly what factors should be considered and how these factors should be weighed when forming an opinion in a specific child sexual abuse case. Research indicates that forensic evaluators are not very accurate in making determinations about the credibility of a child’s uncorroborated allegation of sexual abuse and have high error rates for both false positives and false negatives. Indicators of child sexual abuse that have validity and perfectly discriminating values are unknown. The event of sexual abuse does not trigger in the child predictable behaviors or syndromes (Kuehnle, 1996). Instead the event of sexual abuse interacts with a complex matrix of personality and family factors, which elicits a wide variety of reactions. By providing sound, research-based information relevant to the determination of child sexual abuse, the child custody evaluator may contribute significantly to the decisions rendered by the court. Whether the evaluator conducts a full assessment of all parties to the matter (allegedly abusive parent, other parent, child) or limits the evaluation to a comprehensive custody evaluation, analyzing and incorporating the investigatory and assessment results of other professionals, the evaluator provides the court with specialized expertise in understanding the available data and their limitations. Evaluators may be most useful to the fact finder by conducting a careful analysis of the data that argue for and against the conclusion that a child has been sexually abused; the bases for opinions formed by others, including the parent, the child protective staff, and other treatment providers; and the potential contaminant of the child’s independent recollection. Combined with data regarding the child’s developmental level, the factors that might have
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Pithers, W. D., Gray, A., Busconi, A., & Houchens, P. (1998). Children with sexual behavior problems: Identification of five distinct child types and related treatment considerations. Child Maltreatment, 3, 384–406. Poole, D. A., & Lamb, M. E. (1998). Investigative interviews of children: A guide for helping professionals. Washington, DC: American Psychological Association. Poole, D. A., & Lindsay, D. S. (1995). Interviewing preschoolers: Effects of nonsuggestive techniques, parental coaching, and leading questions on reports of nonexperienced events. Journal of Experimental Child Psychology, 60, 129–154. Poole, D. A., & Lindsay, D. S. (1998). Assessing the accuracy of young children’s reports: Lessons from the investigation of child sexual abuse. Applied and Preventive Psychology, 7, 1–26. Poole, D. A., & White, L. T. (1991). Effects of question repetition on the eyewitness testimony of children and adults. Developmental Psychology, 27, 975–986. Poole, D. A., & White, L. T. (1993). Two years later: Effects of question repetition and retention interval on the eye witness testimony of children and adults. Developmental Psychology, 29, 844–853. Poole, D. A., & White, L. T. (1995). Tell me again and again: Stability and change in the repeated testimonies of children and adults. In M. S. Zaragoza, J. R. Graham, G. C. N. Hall, R. Hirschman, & Y. S. Ben-Porath (Eds.), Memory and testimony in the child witness (pp. 24–43). Thousand Oaks, CA: Sage. Poole, D. A., & Wolfe, M. A. (in press). Child development: Normative sexual and non-sexual behaviors that may be confused with symptoms of sexual abuse. In K. Kuehnle & M. Connell (Eds.), The evaluation of child sexual abuse allegations: A comprehensive guide to assessment and testimony. Hoboken, NJ: Wiley. Porter, S., Yuille, J. C., & Lehman, D. R. (1999). The nature of real, implanted, and fabricated memories for emotional childhood events. Law and Human Behavior, 23, 517–538. Pynoos, R. S., & Nader, K. (1989). Children’s memory and proximity to violence. Journal of the American Academy of Child and Adolescent Psychiatry, 28, 236– 241. Quas, J. A., Goodman, G. S., Bidrose, S., Pipe, M. E., Craw, S., & Ablin, D. S. (1999). Emotion and memory: Children’s long-term remembering, forgetting, and suggestibility. Journal of Experimental Child Psychology, 72, 235–270. Raskin, D. C., & Yuille, J. C. (1989). Problems in evaluating interviews of children in sexual abuse cases. In S. J. Ceci, D. F. Ross, & M. P. Toglia (Eds.), Perspectives on children’s testimony (pp. 184–207). New York: Springer-Verlag. Rind, B., & Tromovitch, P. (1997). A meta-analytic review of findings from national samples on psychological correlates of child sexual abuse. Journal of Sex Research, 34, 237–255. Rind, B., Tromovitch, P., & Bauserman, R. (1998). A meta-analytic examination of assumed properties of child sexual abuse using college samples. Psychological Bulletin, 124, 22–53. Sandnabba, N. K., Santtila, P., Wanna¨s, M., & Krook, K. (2003). Age and gender specific sexual behaviors in children. Child Abuse and Neglect, 27, 579–605.
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Saywitz, K. J., & Dorado, J. S. (1998). Interviewing children when sexual abuse is suspected. In G. P. Koocher, J. C. Norcross, & S. S. Hill (Eds.), The psychologist’s desk reference (pp. 503–509). New York: Oxford University Press. Saywitz, K. J., & Snyder, L. (1993). Improving children’s testimony with preparation. In G. S. Goodman & B. L. Bottoms (Eds.), Child victims, child witnesses: Understanding and improving testimony (pp. 117–146). New York: Guilford Press. Saywitz, K. J., & Snyder, L. (1996). Narrative elaboration: Test of a new procedure for interviewing children. Journal of Consulting and Clinical Psychology, 64, 1347–1357. Shapiro, L. R., & Purdy, T. L. (2005). Suggestibility and source monitoring errors: Blame the interview style, interviewer consistency, and the child’s personality. Applied Cognitive Psychology, 19, 489–506. Shipman, K. L., Rossman, B. B. R., & West, J. C. (1999). Co-occurrence of spousal violence and child abuse: Conceptual implications. Child Maltreatment, 4, 93–102. Smolak, L., & Murnen, S. K. (2002). A meta-analytic examination of the relationship between child sexual abuse and eating disorders. International Journal of Eating Disorders, 31, 136–150. Thoennes, N., & Tjaden, P. (1990). The extent, nature, and validity of sexual abuse allegations in custody/visitation disputes. Child Abuse and Neglect, 14, 151–163. Thompson, J. K., Heinberg, L. J., Altabe, M., Tantleff-Dunn, S. (1999). Exacting beauty: Theory, assessment, and treatment of body image disturbance. (pp. 311–332). Washington, DC: American Psychological Association. Tobey, A., & Goodman, G. S. (1992). Children’s eyewitness memory: Effects of participation and forensic context. Child Abuse and Neglect, 16, 779–796. Tulving, E. E. (1983). Elements of episodic memory. London: Oxford University Press. van der Kolk, B. A., & Fisler, R. E. (1995). Dissociation and the fragmentary nature of the traumatic memories: Overview and exploratory study. Journal of Traumatic Stress, 8, 505–525. van der Kolk, B. A., & van der Hart, O. (1991). The intrusive past: The flexibility of memory and the engraving of trauma. American Imago, 48, 425–454. Vrij, A., & Bush, N. (2000). Differences in suggestibility between 5–6 and 10–11 year olds: The relationship with self confidence. Psychology, Crime, and Law, 6, 127–138. Walters, S., Holmes, L., Bauer, G., & Vieth, V. (2003). Finding words: Half a nation by 2010—Interviewing children and preparing for court. Alexandria, VA: National Center for Prosecution of Child Abuse. Warren, A. R., & Lane, P. (1995). Effects of timing and type of questioning on eyewitness accuracy and suggestibility. In M. S. Zaragoza, J. R. Graham, G. C. N. Hall, R. Hirschman, & Y. S. Ben-Porath (Eds.), Memory and testimony in the child witness (pp. 44–60). Thousand Oaks, CA: Sage. Whitfield, C. L. (1995). The forgotten difference: Ordinary memory versus traumatic memory. Consciousness and Cognition, 4, 88–94. Wilson, T. D. (2002). Strangers to ourselves: Discovering the adaptive unconscious. Cambridge, MA: Belnap Press. Wonderlich, S. A., Crosby, R. D., Mitchell, J. E., Thompson, K. M., Redlin, J., Demuth, G., et al. (2001). Eating disturbance and sexual trauma in childhood and adulthood. International Journal of Eating Disorders, 30, 401–412.
CHAPTER 16
Rejection in Cases of Abuse or Alienation in Divorcing Families LESLIE M. DROZD
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OME CHILDREN REJECT one of their divorcing or separated parents. They resist contact with that parent in a way that seems out of proportion to any parental failings. These children pose challenging and difficult questions for evaluators and judges. Is their resistance a way to get out of the middle of a high-conflict divorce? Do they feel emotionally or physically unsafe with one parent? Is one parent to some degree failing to encourage a relationship with the other parent or even actively discouraging that relationship? Most states try to balance keeping children safe with providing ongoing contact with parents. However, when a child is clearly in danger courts have the power to protect the child at the expense of contact with a parent. Determining what endangers a child can be difficult. Clearly, children must be protected from physical, sexual, and obvious gross psychological abuse. But is it appropriate for courts to attempt to protect children from the psychological damage that results from one parent interfering in the child’s relationship with the other parent? If it is appropriate, how should the courts carry out this task? The question seems straightforward, but cases in which these issues arise are seldom simple. It is rare that it can be clearly demonstrated that a child’s rejection of a parent results exclusively from the other parent’s attempt to disrupt the parent-child relationship. It is equally rare for a child to totally reject a parent without the support of the other parent. The source of difficulty is rarely simple or singular. No matter how hard the parents, therapists, custody evaluators, attorneys, and the court try to put things into focus, the truth usually does not fit into a neat box. Some of the substantial difficulty that arises in evaluating families in which a child demonstrates intensely negative feelings toward one parent arises
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from a confusion in the similar-sounding terms used to discuss these situations. In this chapter alienation refers to the rejection of one parent without good reason in terms of qualities or actions of that parent. Alienation is an attitude the child has and does not entail any assumption about the sources of that attitude. The child who experiences alienation is sometimes referred to by the adjective alienated, which does not entail that someone has actively alienated the child from a parent. Alienating behavior refers to attempts by one parent to undermine or eliminate the relationship between the child and the other parent. It refers to parental actions and attitudes, whether conscious or unconscious and whether successful or unsuccessful in their intent (Kelly & Johnston, 2001). Parental alienation syndrome refers to a purported pattern of signs and symptoms occurring in the child that indicate the presence of alienating behavior in a parent that has resulted in the child’s alienation from the other parent. Unfortunately, discussions and legal processes involving these issues commonly become confused because these similar-sounding terms are implicitly and inappropriately confused. Alienation can occur without alienating behavior and vice versa. Alienating behavior may be present and yet not be the cause of the child’s alienation, as when a child spontaneously rejects an abusive parent because of the abuse and is, at the same time, exposed to alienating behavior by the nonabusing parent. Parental alienation syndrome, whose very existence is open to question, posits a relationship between alienation and alienating behavior. Confusion about these terms has led to major difficulties in court rooms and in discussions of these already challenging matters. All concerned should try to be as clear as possible about the distinctions between alienation, alienating behavior, and parental alienation syndrome. When, as unfortunately often occurs, derivatives of these terms are used ambiguously (e.g., ‘‘alienated child’’), it is important to make every effort to be clear about how the terms are being used in the particular context. THE CONTEXTS OF REJECTION AND ALIENATION Although it sometimes occurs without extraordinary parental conflict, commonly children’s rejection of one parent occurs in the context of high-conflict divorce (see Deutsch & Pruett, Chapter 4). Sabotage and counterproductive protective parenting refer to domestic violence situations in which a parent or the victim parent does not promote the child’s relationship with the other parent (Drozd & Olesen, 2004). Sabotage often occurs when a parent undermines the child’s relationship with the victim parent as a means of hurting that parent (Johnston & Roseby, 1997). Often, damaging the child’s relationship to a parent is part of a pattern of physical or psychological violence directed at the second parent. Victim parents sometimes also interfere with
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the child’s relationship with the victimizing parent. The victim parent may be trying to protect the child from being victimized but, in so doing, goes beyond what is necessary to protect the child. The victim may project his or her fears onto the child and may find it difficult to understand that it is possible that the violent parent’s behavior does not necessarily extend to the child. Sometimes such beliefs can be easily corrected by education and helping the victimized parent differentiate his or her own feelings from those of the child. Often a parent can protect the child without interfering in the basic relationship of the child with the violent parent. In such cases the parent’s behavior is referred to as counterproductive overprotection. Sometimes, out of spite or rage, the victim parent maliciously sets out to undermine the child’s relationship with the abusive parent. Drozd and Olesen (2004) label this behavior sabotage because, like the abusive parent’s campaign to undermine the child’s relationship with the victim parent, it is both malicious and intentional. PARENTAL ALIENATION: SYNDROME OR COMPLEX GROUP OF BEHAVIORS Richard Gardner (1987, 1998, 2001), a child psychiatrist, observed that some children who alleged that they had been abused by a parent described extreme forms of detestation of the alleged perpetrator and anything associated with him or her. For example, not only was the parent hated, but the dog, a formerly loved family pet who was in the alleged perpetrator’s home after the separation, was also described as awful and dangerous. Gardner’s work arose partly in response to a movement in child abuse work that asserted that any statement made by a child claiming abuse should be taken as accurate and truthful and that to do otherwise was to perpetuate the abuse the child had suffered (Ceci & Bruck, 1995). Gardner introduced the term ‘‘parental alienation syndrome’’ to describe and characterize situations he believed resulted from the active alienation of a child from one of the parents by the other parent and a resulting state in the child involving unmitigated hatred of the alienated parent and a tendency to fabricate or adopt an allegation of abuse against that parent. Gardner borrowed the term ‘‘syndrome’’ from the language of medicine, where it is commonly used to indicate a group of signs and symptoms that occur in concert such that the presence of several of these findings commonly entails the presence of the others and often suggests a well-understood underlying cause for them. In particular, Gardner claimed that the presence of several elements of this supposed syndrome indicated that the child had been induced to hate the alienated parent by the activities of the supposedly alienating parent and that if a child suffering from the syndrome reported being abused by the alienated parent this was very likely a result of alienation. Gardner advocated vigorous interventions when the
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syndrome was diagnosed. His work was based almost entirely on personal clinical and forensic experience described in coherent and convincing narratives but seldom containing indications of how he excluded from consideration alternative hypotheses to the syndrome. The concept of parental alienation syndrome has met with wide criticism on both legal and psychological grounds. Gardner provided little evidence to support its existence, and subsequent investigation has failed to reveal any regularly recurring pattern of associated signs and symptoms that supports that use of the term ‘‘syndrome’’ with regard to either patterns of children being alienated from parents or parental efforts to alienate children from the other parent. However, one somewhat problematic study has shown that practitioners come to similar opinions based on written case reports (Rueda, 2004). In addition, there is considerable doubt about the evidentiary value of any syndrome, especially syndromes that have not achieved a level of recognition adequate to include them in any official nomenclature. The syndrome concept is particularly likely to be unwelcome in court when it is used as an argument for or against facts that are in question before the court. Parental alienation syndrome testimony has been used in attempts to impeach children’s testimony about abuse and to affirm that parents have taken an active role in alienating a child from the other parent in a manner that several courts have found inappropriate (Rand, 1997). Worse, it has been used punitively against parents who, perhaps imperfectly, have been doing their best to protect their children from realistic danger. Finally, Gardner’s recommendations for treating the supposed syndrome are not only unproven but appear to be potentially traumatizing to children and families who are already in dire difficulty. In sum, this term is overly inclusive, frequently hostile toward women and fail[s] to differentiate appropriate (or even frantic and clumsy) attempts to protect children from an abusive or dangerous parent. It also suggest[s] that there [is] a known syndrome in the medical sense, with a defined set of symptoms, a known cause, and an approach to treatment, none of which [is] the case. (Olesen & Drozd, 2008)
Although the concept of parental alienation syndrome has proven highly problematic from many points of view, Gardner’s work called attention to a group of unusual situations in which children reject a parent in extreme fashion and parents actively, though sometimes not consciously, try to discourage relations with the other parent. In such cases, children may describe episodes of abuse that did not in fact occur. Contrary to Gardner’s formulations, these factors need not occur in concert, but they do occur. They require explanation and must be addressed in child custody evaluations. In the past 15 years substantial efforts have been made to clarify these phenomena, especially as
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they appear in high-conflict divorces (Johnston & Kelly, 2001; Kelly & Johnston, 2001; Warshak, 2001). This more complex view of alienation includes such possibilities as that a violent parent may engage in alienating, and that behavior that appears to be alienating may be necessary but poorly considered protective endeavors. This model also includes the possibility that the child’s negative attitude toward a parent results from factors other than any direct or indirect coaching. This has been referred to as ‘‘estrangement’’ (Drozd & Olesen, 2004; Johnston & Kelly, 2001; Kelly & Johnston, 2001; Olesen & Drozd, 2008). Because children respond to untoward events, be it abuse, domestic violence, or attempts to indoctrinate them, in such varied ways, and because some children respond strongly to events that would not disturb most other children, it is almost never possible to infer the occurrence of an untoward event with a high degree of confidence from a child’s current symptoms without corroborating evidence of some kind. This evidence might include the child’s credible report of the events in question. Even when it is clear that a parent has actively contributed to a child’s negative attitude toward the other parent, the motives for and significance of the parent’s behaviors can vary widely. The alienating behavior can be part of a coercive controlling form of psychological violence directed against the other parent and the child. It can result from an effort to protect the child from perceived abuse. It may be part of an ongoing family interaction in which a parent coercively dominates the family. It may be a reaction to specific events, such as the marital separation or the remarriage of a former spouse (Warshak, 2000). Sometimes the alienating behavior is a symptom of an underlying psychiatric disorder and may be relieved by the successful treatment of that disorder. If it is a symptom of a disorder that is unlikely to respond to treatment, this is also useful information because it suggests that the behavior is very likely to continue for an extended time. Children respond in various ways to a parent’s attempts to interfere in their relationship to the other parent. Some children easily ignore denigrations of a parent; some are angered by it; some, to varying degrees, adopt the alienating parent’s viewpoint even at the expense of their own ability to differentiate real from imagined events. A few enter into a particularly problematic relationship with the alienating parent in which they not only adopt that parent’s point of view but further stimulate it by providing the parent with information (true or not) that supports the alienating parent’s position. In this case a folie a` deux results in which parent and child reinforce each other’s beliefs. When a child becomes alienated from a parent, effectively losing that parent, it is reasonable to assume that the very substantial data (McLanahan & Sandefur, 1994) on the untoward impact of parent loss apply to the child. Although it is reasonable to assume that alienating behaviors of a parent
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stress the child and so interfere with development, some studies have not found that alienation impacts children’s self-concepts (Stoner-Moskowitz, 1998). All this suggests that situations of apparent alienation are not best understood in terms of dichotomous thinking that focuses only on whether the child needs protection from the parent who has allegedly mistreated the child or the parent who may be alienating the child. It suggests instead that the presence of possible alienation should be the starting point of a careful investigation of the entire situation, including not only addressing the question of the presence of alleged abuse and alienation but also the nature and impact on the child of these behaviors if they are found to be present. The more we know, the better the interventions can be to assist the child and family. Although keeping a child from a parent who is not dangerous may be as harmful as exposing a child to violent or abusive behavior, the presence of alienation-related difficulties generally indicates that something is seriously amiss and should be addressed by the court and evaluator. CHILDREN MAY REJECT PARENTS FOR REASONS OTHER THAN ALIENATION Children may reject parents for a variety of reasons. Even in intact families some children are much closer to one parent than the other. During a divorce a child may become angry at a parent who the child believes is responsible for the breakup or be enraged at the parent who is perceived as abandoning the family. An admired parent who is perceived as behaving badly may precipitate rage and contempt as only a fallen idol can. All of this may occur without the intervention or support of the other parent. Hatred of one or both parents is not uncommon in psychiatrically ill children. Transient intense negative attitudes toward parents are common features of certain periods of normal development. Many adolescents go through periods when they feel particularly close to the same-sex parent and to varying degrees reject the opposite-sex parent as part of their normal development. And, of course, a child may hate and fear a parent because of suffering abuse at the hands of that parent. Even extremely intense and irrational rejection of a parent may occur without any significant intervention by the other parent (Anthony, 1970, 1986; Brazelton, 1974; Holmbeck, Paikoff, & Brooks-Gunn, 1995; Jaffe, 1983; Robertson & Robertson, 1971; Ventura, 1987; White, Spiesman, & Costos, 1983; Wolf, Noh, Fisman, & Speechley, 1989). When a child’s rejection of a parent arises from responses to the parents’ conflicts during divorce, time may be the child’s best friend. Conflict often subsides and functioning often returns to normal within 2 years of the divorce (Hetherington & Clingempeel, 1992). Ultimately, most children want close positive relationships with each parent. Courts and those working for and
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with these courts need to keep in mind that the cases they work with are the exceptions to the rule. The rule is that after a period of time of adjustment following the initial phases of the separation or divorce most children and most parents do well (Hetherington & Kelly, 2002). Novel caretaking configurations resulting from divorce that place both parent and child in essentially new roles may be difficult for both to negotiate, with the result that the youngster exhibits negative behavior toward the parent. For example, a 4-year-old boy may display some regressive and even aggressive behavior when he spends time alone with his father for the first time as a result of a court-ordered visitation and custody decree. It would be a mistake to attribute either the regressive behavior or an increased desire to spend time with his father to either parent’s influence. What we see may be a process of developmental adjustment to a difficult situation. A useful question to ask when the child manifests negative attitudes toward a parent is, ‘‘If a child, this age and in this stage of development was to do this behavior, and if the parents were not in the midst of a separation or divorce, what would you be looking at as being at the root of the behavior?’’ Often divorcing parents in high conflict no longer trust one another and are quick to attribute problems in the child’s behavior to actions of the other parent. MAKING DECISIONS AND RECOMMENDATIONS IN ALIENATION CASES In alienation cases courts and evaluators commonly believe that they must decide between two incompatible hypotheses about the origin and resolution of a child’s problem. They further believe that the wrong choice may have devastating consequences. All agree that children’s safety is always the primary concern. But in each case the question arises of how a custody arrangement will protect the child from alleged abuse from the feared parent and the damage that results from continued exposure to a parent who may destroy or severely damage the child’s relationship to that parent. These cases are difficult not only because assessing the extent to which active alienation or abuse have occurred is difficult, but also because even if established, their significance for custody arrangements is often unclear. Not all children so exposed are affected in the same way by either type of problem. Some children are more vulnerable, some more resilient than others. Except in extreme instances, the risk posed to a particular child as the result of either alienation or abuse depends heavily on the child’s makeup. In addition, because custody decisions are attempts to address future behavior, even when past behavior has been highly problematic there are situations in which custody decisions may be based on a realistic anticipation that parental conduct will change as the result of education, therapy,1 or altered life circumstance.
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Another reason a child might reject a parent is related to some sort of alienating behavior. Alienation refers to the situation in which a child rejects a parent for trivial or false reasons, not consistent with his or her own experience of that parent. Alienation is not a term that should be used to describe families in which there has been abuse or violence.
A MORE SOPHISTICATED CONCEPTUALIZATION OF ALIENATION AND ABUSE Recent studies of domestic violence have shown that it is possible to discuss major interpersonal problems that become the object of court attention in a more useful fashion than simply asking whether something occurred that fits the legal definition of domestic violence. Some of the results of these efforts may be useful in conceptualizing how to think about alienation and abuse. The 2007 Wingspread Conference (Ver Steegh & Dalton, 2008) categorized domestic violence as follows: 1. Coercive-Control Violence in which the perpetrator uses violence to coercively control the victim (classic battering, usually perpetrated by the male). This kind of violence has been called intimate terrorism. 2. Violent Resistance or Self-Defense (usually by the female) is violence perpetrated in defense against coercive-control violence. 3. Conflict-instigated Violence is driven by conflict (initiated by females and males though females are injured more often and more seriously). It includes separation instigated violence which is not an attempt to coerce the partner into staying. Conflict-instigated violence has also been called ‘‘common couple violence’’ or ‘‘situational couple violence.’’ 4. Violence Caused by Mental Illness, that is, violence stemming from severe mental illness including psychosis and paranoia.
Labeling violence this way is not without problems. Mislabeling can put family members in danger or block them from receiving services. Many families do not fit neatly into a particular category. Difficulties with these categories are particularly likely to arise when classifications are made by individuals in law enforcement and other government agencies who may have little training in the complexities of domestic violence. Certainly, evaluators and courts should remember that the usefulness of these assessments is bounded by the knowledge and skill of the person making them. Domestic violence can also be described along various dimensions: domain (emotional, control or power, financial, sexual), pattern (type of abuse, direction of abuse, identity of both perpetrator and victim as well as frequency, intensity), and the meaning of the abuse to each parent (Austin, 2001). These more
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sophisticated categorizations give a far clearer and more useful picture of domestic violence that can and should inform legal decision making than the old, unrealistically simple dichotomization between the presence and absence of domestic violence and the identification of the perpetrator. In assessing domestic violence, we investigate the context, the intent, the meaning to the victim, and the pattern over time. All of these factors, as well as the psychology of the child, will influence the impact of violence on children during and following divorce. Obviously, appropriate intervention in situations of domestic violence should be contingent on the careful analysis of the particular case. Rational decisions about which intervention to use must be based on knowledge of the actual intervention rather than simply the name given to it by practitioners. ‘‘Errors in screening and assessment, specifically false positive and false negative errors, can be quite costly and/or even harmful to children and their families’’ (Olesen & Drozd, 2008). Many divorce cases that include allegations of domestic violence now come with counterallegations of parental alienation. When assessing for one, it is necessary to assess for the other, just as assessment for substance abuse must be assessed concurrently with allegations of family violence and vice versa. For a decision tree that provides a practical approach to these overlapping and intertwined issues, see Drozd and Olesen (Drozd, 2004). Similarly, when evaluating alleged abuse one should screen for alienating behaviors, and when the presenting problem or allegation is alienation, one should investigate whether there has been abuse. The presence of abuse does not rule out alienating behaviors by the parent, nor does the presence of alienating behavior rule out the occurrence of abuse. It is possible to assess the extent to which alienation, alienating behavior, and abuse impact a child only through systematic investigation of all possibilities. As with all forensic evaluation, comparison of the history gathered from interviewing the parties with data from collateral sources who observed the family at other times and in other contexts can be extremely informative regarding alienation and abuse. In particular, observed interaction between parent and child should be compared to observations made prior to the divorce. Alienating parents often do not recognize that their behavior is problematic or even that they are engaging in behaviors that influence the child. As a result, they commonly exhibit these behaviors during observations of the parent with the child. These behaviors may take the form of direct statements to the child about the inadequacies of the other parent, telling the child to be sure to tell the evaluator about some negative aspect of the other parent, and approving gestures when the child says negative things about the other parent. Sometimes these interactions are sufficiently subtle that they are best
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observed and documented through video recordings (see Galatzer-Levy, Gould, & Martindale, Chapter 1). The common configurations of alienating behavior are now being described, although assertions are often made that one or another configuration occurs often. For example, when a woman alleges that her spouse has abused her, the abusing spouse may assert that the allegation is merely part of a pattern of alienating behavior, an effort to turn the children against him. Johnston, Walters, and Olesen (2005) found, however, that in families in which there was abuse by the father, the mother had no greater likelihood of engaging in alienating behavior than mothers in other families. On the other hand, fathers who had been abusive to their adult partner or their children were significantly more likely to engage in alienating behaviors than their partner or other fathers who were not abusive. INTERVENTION Interventions for families and children where alienation is at issue must be based on adequate assessment of the family. Because alienation can have so many different sources and dynamics and because interventions that are likely to help with one form of alienation may exacerbate other forms of alienation, the adequacy of evaluation is particularly crucial. For example, if an evaluator inaccurately opines that a child’s assertion that she has been abused results from a parent’s alienating behavior rather than an outcry based on the child’s experience, interventions may be recommended that will result in the child being less able to protest further abuse and the supposedly alienating parent being less able to protect the child. For this reason evaluators working in this area need to be particularly sophisticated about the relevant issues of alienation, abuse, and the personality disorders sometimes associated with alienating behavior. A second example of how important differential assessment is comes from Olesen and Drozd (2008): Consider a separated family in which the children are fearful of visiting their father who has been physically violent and verbally abusive, while their mother is angry and fearful. The clinical interventions should include clear and reliable protective orders, a batterer’s treatment program for the father, and a reliable safety plan and trauma treatment for the mother and specific treatment for the children focused on healing their trauma. Then, when all aspects of that treatment are moving forward and there is accountability for all orders and agreements, one can plan to start work to heal the relationship between father and children. This is a very different situation from the family at the other extreme
Intervention 413
in which there is an involved and appropriate father, a paranoid or mentally ill mother who makes large numbers of allegations, all investigated with the conclusion they are unfounded, and children who have come erroneously to believe their father is dangerous or bad. In that case, the clinical interventions should immediately create opportunities for the children to spend time with their father, with parenting advice for him, as he deals with the difficulties presented by the children. The mother should receive appropriate treatment for her psychological illness and the children too should be provided with opportunities for therapeutic healing as they resume contact with their father.
In the real world cases are frequently not clear. Instead, elements of high conflict, domestic violence, and alienation coexist. Multiple interventions are often needed by the same family, so a decision must be made about the order and timing of the interventions. There is a consensus among mental health and legal professionals, which is not, however, supported by systematic research, that the choice must always be to intervene in ways most likely to ensure the safety of the children from immediate physical and emotional danger. Unfortunately, this approach, though it may be the best available, may expose children to dangers that, though, less obvious, may be very great in the long run. Here is a case example illustrating the problem. An 11-year-old’s mother claims that the father has been intrusive in his parenting and that in time he has successfully alienated the child from her. In the father’s view, the problem has been and will always be the mother and how she relates to (actually, how she does not relate to) her preadolescent son. The evaluator found that the mother asserted years ago that the father abused her and that most recently it has been the mother and her family who have said ‘‘bad things’’ about the father and his family to the 11-year-old son. The boy rejects his mother for this reason, he says. This case raises issues of abuse, sabotaging behavior by the father, alienating behavior by the mother, and alienation in the child (including alienation that in part results from the normal discomfort that preadolescent boys experience with their mother). A weak, less than thorough, or confused assessment that failed to address each of these issues would likely lead to failed interventions in a case like this. Even if the multiple factors active in such a case are accurately evaluated, they must be prioritized (e.g., the child must be promptly protected from overt abuse). Adequate services may not be available and, at least in some jurisdictions, mandated treatment modalities (especially for domestic violence) may be inappropriate to the particulars of the situation. The evaluator must anticipate and the judge must follow legal principles in planning interventions. Although protecting the child, for example, by supervising visits, may be necessary,
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many jurisdictions require that the intervention be the ‘‘least intrusive alternative’’ available. The evaluator should address this issue, recognizing that there are few empirical data about the relative merits of various levels of supervision. Because the problems of alienation in divorce have been only recently recognized, good empirical data about the outcomes of various intervention approaches are not available, even though several authors have described anecdotal evidence or evidence from limited populations in support of various intervention strategies (Gardner, 1998; Johnston & Kelly, 2001; Johnston & Roseby, 1997; Warshak, 2001). Nonetheless, recommendations should be rational, specific, and clear and the evaluator’s reasons for making them should be spelled out. Regardless of the specific treatment modality recommended it is important that appropriate mental health professionals be involved. Such mental health professionals need to have a good knowledge of the psychological issues surrounding divorce, alienation, and trauma. One thing is certain: These are often complex and difficult cases in which family members try hard to invite treating professionals to join in the battle. Most mental health training is insufficient to prepare practitioners to work effectively on these cases. Courts do a major disservice to families when they require treatment by individuals who are not sophisticated about the issues surrounding alienation. This is especially so because treaters who get pulled into the battle between the parents tend to make the problems worse than they would be with no treatment at all. In many divorces involving alienation, compliance with court orders is limited and problematic, especially with regard to ongoing interventions. Many of the families involved are unable to sustain ongoing interventions without some form of monitoring by the court or by another entity with significant legal authority. One follow-up study indicated that when the courts do not continue to be involved in the enforcement of treatment and visitation, children remain alienated (Rand, Rand, & Kopetski, 2005).
NOTE 1. Increasingly sophisticated and empirically demonstrated treatments are available to address the problems that arise in high-conflict divorce (see Deutsch and Pruett, Chapter 14). However, courts and evaluators should be aware that the mere claim of a treating mental health professional or agency to be able to intervene therapeutically, much less a generic requirement by the court that a litigant ‘‘be in therapy,’’ does not ensure that treatment will be adequate or even of a type that has shown to be helpful. In many locales and circumstances it will be impossible find therapeutic resources adequate to address these problems. The court or evaluator who sees therapy as part of the solution to these complex
References 415
cases needs to be highly specific about the nature of that therapy and to know whether it is a possibility for the family.
REFERENCES Anthony, E. J. (1970). Two contrasting types of adolescent depression and their treatment. Journal of the American Psychoanalytic Association, 18, 841–859. Anthony, E. J. (1986, May). Terrorizing attacks on children by psychotic parents. Journal of the American Academy of Child Psychiatry, 25, 326–335. Austin, W. G. (2001). Partner violence and risk assessment in child custody evaluations. Family Court Review, 39, 482–496. Brazelton, T. (1974). Toddlers and parents. New York: Delta. Ceci, S., & Bruck, M. (1995). Jeopardy in the courtroom: A scientific analysis of children’s testimony. Washington, DC: American Psychological Association. Drozd, L., & Olesen, N. (2004). Is it abuse or is it alienation? A model for evaluating custody disputing families. Journal of Child Custody, 1, 1–3. Gardner, R. A. (1987). Parental alienation syndrome and the differentiation between fabricated and genuine child sex abuse allegations. Creskill, NJ: Creative Therapeutics. Gardner, R. (1998). Parental alienation syndrome: A guide for mental health and legal professionals (2nd ed.). Creskill, NJ: Creative Therapeutics. Gardner, R. (2001). Therapeutic interventions for children with parental alienation syndrome. Creskill, NJ: Creative Therapeutics. Hetherington, E., & Clingempeel, W. (1992). Coping with marital transitions: A family systems perspective. Monographs of the Society for Research in Child Development, 57, (2-3, Serial No. 227). Hetherington, E., & Kelly, J. (2002). For better or for worse: Divorce reconsidered. New York: Norton. Holmbeck, G., Paikoff, R., & Brooks-Gunn, J. (1995). Parenting adolescents. In M. Bornstein (Ed.), Handbook of parenting: Children and parenting (Vol. 1, pp. 91–118). Mahwah, NJ: Erlbaum. Jaffe, D. S. (1983). Some relations between the negative Oedipus complex and aggression in the male. Journal of the American Psychoanalysis Association, 31, 957–984. Johnston, J. R., & Kelly, J. (2001). Alienated children in divorce. Family Court Review. Johnston, J. R., & Roseby, V. (1997). In the name of the child. New York: Free Press. Johnston, J. R., Walters, M. G., & Olesen, N. W. (2005). Is it alienating parenting, role reversal or child abuse? An empirical study of children’s rejection of a parent in child custody disputes. Journal of Emotional Abuse, 5, 191–218. Kelly, J., & Johnston, J. (2001). The alienated child: A reformulation of parental alienation syndrome. Family Court Review, 39, 249–286. McLanahan, S., & Sandefur, G. (1994). Growing up with a single parent. Cambridge, MA: Harvard University Press. Olesen, N. W., & Drozd, L. M. (2008). High Conflict, Domestic Abuse, or Alienating Behavior: How Do You Know? (pp. 17–40) In Innovations in Interventions with
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High Conflict Families, ed. by Linda B. Fieldstone and Christine A. Coates. 2008, Madison Wisconsin: Association for Family and Conciliations Courts. Rand, D. (1997). The spectrum of parental alienation syndrome. American Journal of Forensic Psychology, 15 (Pt. 2), 39–92. Rand, D., Rand, R., & Kopetski, M. (2005). The spectrum of parental alienation syndrome: Pt. III. The Kopetski follow-up study. American Journal of Forensic Psychology, 23, 15–43. Robertson, J., & Robertson, J. (1971). Young children in brief separation. A. fresh look. Psychoanalytic Study of the Child, 26, 264–315. Rueda, C. A. (2004). Parental alienation syndrome: An inter-rater reliability study. Dissertation Abstracts International, 64(12-B), 6380. Stoner-Moskowitz, J. (1998, October). The effect of parental alienation syndrome and interparental conflict on the self-concept of children of divorce. Dissertation Abstracts International, 59(4-B), 1919. Ventura, J. (1987). The stresses of parenthood reexamined. Family Relations, 36, 26–29. Ver Steegh, N., & Dalton, C. (2008). Report from the Wingspread Conference on Domestic Violence and Family Courts. Family Court Review, 46, 454. Warshak, R. (2000). Remarriage as a trigger of parental alienation syndrome. American Journal of Family Therapy, 38, 229–241. Warshak, R. (2001). Divorce poison. New York: Regan. White, K., Spiesman, J., & Costos, D. (1983). Young adults and their parents: Individuation to mutuality. In H. Grotevant & C. R. Vooper (Eds.), Adolescent development in the family (pp. 61–77). San Francisco: Jossey-Bass. Wolf, L. C., Noh, S., Fisman, S. N., & Speechley, M. (1989). Psychological effects of parenting stress on parents of autistic children. Journal of Autism and Developmental Disorders, 19, 157–166.
CHAPTER 17
Joint Custody: A Judicious Choice for Families—But How, When, and Why? MARSHA KLINE PRUETT and CARRIE BARKER
O
VER THE PAST 3 decades, the election of joint custody as an option in divorce settlements has far outdistanced our empirical knowledge about its judiciousness. Initially the relationship between joint custody and research began with impassioned intensity, suggesting that they were well-positioned as both psychologically and politically suitable partners. Divorce research in the 1970s and early 1980s indicated that children fared better when they had ongoing, quality relationships with both parents. A growing men’s movement called attention to fathers’ determination to maintain relationships with their children after divorce. The women’s movement made it equally clear that men would be welcomed as more involved partners in child rearing and home responsibilities. Consistent research evidence about the negative impact of marital and postdivorce conflict on child adjustment further suggested joint custody as a viable alternative to the more traditional ‘‘custody with visitation.’’ Finally, concerns about the ways the legal system could exacerbate hostility and conflict between ex-spouses suggested that joint custody might offer divorcing parents a respectful alternative to the adversarial process. Despite these auspicious beginnings, rigorous research into the potentials and pitfalls of joint custody did not keep pace with political support for shared parenting. Recent studies support the efficacy of joint custody for child adaptation in particular, and families more generally. Yet although our knowledge base is slowly developing, a number of questions remain that could shed more light on which particular dimensions of joint custody benefit which kinds of families and under what
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conditions. This knowledge, though lacking at present, could offer legal decision makers a more substantial empirical basis from which to make the voluminous decisions about complex situations that families are posing to the courts across the country and abroad. This chapter examines what is known about the legal status, living arrangements, outcomes, and legal contexts of joint custody and reflects on what is not known. The first two sections lay the foundation for subsequent analysis of empirical knowledge by providing a brief overview of the historical circumstances that gave rise to joint custody as a legal option and clarifying definitions of legal and physical forms of custody. The second section also highlights the diversity of custody arrangements families choose, elucidating the discrepancy between how custody is defined and how it is lived. The third section presents the salient dimensions examined in the joint custody literature. The next two sections review legal contexts that influence the potential impact of joint custody on children and families, concluding with a summary and directions for future research. HISTORICAL BACKGROUND Prevailing tradition for the greater part of Western history, in accordance with common law, gave fathers custody of their children as part of their property rights. In fact, men’s authority over their families changed little through the Middle Ages (Derdeyn, 1976). In the nineteenth century fathers maintained their primary right to custody, but a movement toward custodial preference from fathers to mothers occurred with the tender years presumption. Mothers, according to this doctrine, were considered superior caretakers of very young children: Where a child is of such tender age as to require the care and attention that a mother is especially fitted to bestow upon it, the mother, rather than the father, is presumed to be the proper custodian, unless for some reason she is unfit for the trust. (Quoted in Paradise, 1998, p. 519)
Some historians trace the evolution of the doctrine to the increased specialization in men’s and women’s roles initiated by the Industrial Revolution (Grossberg, 1985). By the 1960s maternal preference, limited only by a showing of unfitness or fault for divorce, had entirely replaced the presumption of father custody based on men’s authority over the family. The enactment of no-fault divorce laws in the 1960s and 1970s, alongside challenges to traditional ideas about men’s and women’s family roles in the 1970s and 1980s, eroded the former tender years presumption until it was eliminated from statutory law (Emery, 1994).
Historical Background 419
The best interests of the child standard, which replaced the tender years presumption, dictates that custody decisions be based on the child’s present and future best interests (Mnookin, 1975). This standard considers numerous factors pertaining to parental and child characteristics, along with the relationships between each parent and child and between the parents, to achieve a decision based on the needs and welfare of the children involved. This standard requires a case-by-case consideration of the situation and parties in the dispute, balancing each child’s needs against each parent’s ability to provide for him or her (Paradise, 1998). However, the best interest standard offers little direction for judicial discretion, especially when two competent parents desire custody of their children. Outcomes of legal dispute are unpredictable, subject to the individual prejudices and values of judges and experts from professions other than law (primarily mental health– related) who provide information to assist the judge in his or her determination of which parent should receive custody. Most recently two standards, the primary caretaker parent and joint custody, have emerged to help concretize a child’s best interests (Emery, 1994). The former standard grants custody to the parent who was primarily responsible for the children’s care and upbringing during the marriage; the latter attempts to foster or represent a shared caretaking arrangement between parents. Over the past 30 years, although mothers continue to be recognized as the primary caretaker of children in a large majority of cases, states have increasingly recognized joint custody as a feasible arrangement for the children of divorcing families. Advantages of joint custody touted by supporters include the preservation of continuity of care and affection that children need from both parents (Roman & Haddad, 1978), the expansion of children’s support network (Stack, 1976), and the elimination of single-parenting burdens and child behavioral disorders linked with father absence (E. M. Hetherington & Kelly, 2002; E. M. Hetherington, Cox, & Cox, 1985; Jacobson, 1978). Potential dangers of joint custody include loyalty conflicts and instability that sole custody mitigates by preserving continuity of caretaking and support for the autonomy of one primary parent, without interference (Goldstein, Solnit, Goldstein, & Freud, 1996). Other experts also highlight potential difficulties with jointcustody arrangements. Kuehl (1989) describes joint custody as harmful because it robs children of security and predictability. Weiss (1979) focuses on the problems created by contact that may result in the intensification of attachment bonds between divorcing parents, which he believes renders emotional divorce difficult. Paradise (1998) argues that the ongoing contact and communication between parents could potentially exacerbate existing hurts, disputes, and difficulties, especially if either of the involved parents originally sought sole custody. These opposing arguments identify central
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questions in the joint custody debate, as well as competing worldviews and values underlying possible child custody decisions. Although the country’s first joint custody statute was established in North Carolina in 1957, the majority of joint custody laws have been enacted throughout the 1980s and 1990s. As of the end of the twentieth century, 43 states have recognized joint custody as a viable option, specifically authorizing the courts to order joint custody, although all states permit parents to have joint legal custody after a divorce. However, only 11 states and the District of Columbia have a presumption for joint custody, forcing courts to grant joint custody or to examine it as a concrete possibility unless there is proof that such an arrangement is not in the child’s best interests. Seven states do not have statutes addressing joint custody; however, courts in those states can order joint custody when appropriate. Support for joint custody ranges in these states from viewing it as a viable option on request to viewing it as acceptable only under exceptional circumstances (Atkinson, 1996). DEFINITIONS AND APPLICATIONS The statutory laws regarding joint custody are usually focused on legal custody status as decreed at the time of divorce. Joint legal custody (JLC) grants rights and responsibilities to both parents for major decisions affecting the child (e.g., health, education, welfare) but does not assume residential arrangements of any type. This legal authority can also be divided so that each parent retains the right to make decisions in certain spheres, and it makes both parents legally responsible for the actions of their minor children (Warshak, 1992). In joint physical custody (JPC), children spend large portions of their time with each parent. Often the term is used to connote nearly equal time sharing; however, it is not reserved for any specific distribution of time and can simply imply that children will live in both residences to varying extents. Joint physical custody also assures that neither parent will be assigned ‘‘primary custodial’’ or ‘‘visiting’’ status (Schepard, 2002). Shared parenting or shared residences, as described in this chapter, refer to JPC arrangements. DISTRIBUTIONS ASSOCIATED WITH CUSTODY STATUS Families may adopt at least three different constellations of custody: (1) joint legal and joint physical custody, (2) joint legal custody and sole physical custody to one parent with noncustodial parent visitation or access, or (3) sole legal and physical custody, with or without visitation or access to the noncustodial parent. The majority of states specify JLC as an option or preference, making it common across many jurisdictions (Maccoby & Mnookin, 1992;
Distributions Associated with Custody Status 421
Phear, Beck, Hauser, Clark, & Whitney, 1984; Racusin, Albertini, Wishik, Schnurr, & Mayberry, 1989), though the actual rates vary significantly across the country. It is far more common than JPC. The presumption of shared physical custody with joint legal custody symbolizes the emotional and legal equality of both parents and encourages the child to have a continuing relationship with both parents after the divorce. However, JLC with JPC is a relatively rare event. Even in states at the forefront of the joint custody movement, such as California, Washington, and Colorado, only 15% to 20% of the children sampled lived in dual residences (Ellis, 1990; Maccoby & Mnookin, 1992; Pearson & Thoennes, 1990). Other states report that JPC is awarded to fewer than 5% of families (Gunnoe & Braver, 2001; Nord & Zill, 1997). Moreover, most children in these arrangements spend the majority of their time with their mother (Schepard, 2002), and the JPC arrangements are less consistent than other arrangements (Maccoby & Mnookin, 1992). Maccoby and Mnookin found that only about half of the families awarded JPC retained dual residential arrangements over a 3-year period. Although equal sharing remains the gold standard for many, no studies show that equal time division between parents is generally in the child’s best interests. Even those parents who do wish to spend as much time as possible with their children are not necessarily able to structure their employment life to accommodate such arrangements, as the required flexibility in employment is often a prerogative of more wealthy and educated parents. The principal competitor to the presumption of equal physical custody is the recently developed approximation presumption, which provides a predictable, gender-neutral statute based on the time a parent spent with the child before the divorce, rather than speculating on future best interests. The rule, unlike other custody rules, does not assume that one parent was the primary caregiver in any particular family. Instead, it is intended to preserve the relationships that were in place before the divorce and reduces the risk of the child being placed with a parent who is inexperienced or has a lack of desire to participate in a larger portion of parenting (Schepard, 2004). In this way, the approximation presumption quantifies the parent’s actions toward the child to make decisions on the specific division of custody between parents. Although this presumption is intended to provide a gender-neutral statute that is in children’s best interests, the proposal has encountered numerous criticisms by both judges and parents. Many of these criticisms deal with the idea that in the majority of cases, this division will allocate to women more time with the child because women continue to do most of the caretaking for children during marriage. The nonprimary caretaking father may then view himself as being penalized for working outside the home for the benefit of the
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family. Furthermore, the presumption predicts postdivorce child care patterns based on relationships in the past, without taking into account the high probability of postdivorce changes in parenting roles, and it fails to consider the importance of both parents’ contributions in the postdivorce life of the child. Finally, it is argued that if custody issues are to be determined on the basis of what is believed to be in the child’s best interest, it is also essential to recognize the importance of the child’s emotional attachments, which may or may not rest primarily with the primary caretaker (Schepard, 2004). Despite the apparent advantages to quantifying predivorce actions in regard to the child to make a decision about division of custody postdivorce, the approximation rule clearly raises as many troubling quandaries as it resolves. APPLICATIONS: FROM LEGAL STATUS TO LIVING ARRANGEMENTS Despite the clear definitions of JLC and JPC, the realities of these arrangements are not so clear. It is possible for JPC arrangements to result in separate, uncoordinated (‘‘parallel’’) parenting rather than highly communicative, shared decision making. Conversely, parents may implement JLC in a variety of idiosyncratic schedules, such that JLC with frequent visitation is nearly indistinguishable from JPC. The amount of time a parent and child spend together is also qualitatively different from the type of time they spend together in terms of the impact it is likely to have on the child’s development. If the child spends the bulk of his or her time with Dad on weekends, there will be a considerable difference in their relationship than if Dad is responsible for getting the child to bed on time with homework completed. Moreover, the meaning and importance of different patterns varies with the child’s age. Changing distributions of living arrangements over time further confound data emerging from studies that are not specific in describing when the studies are carried out or are not longitudinal. It is with this cautionary note that we proceed to establish a context for the assessment of joint custody research that is currently available to inform decision making. THE DIMENSIONS
OF JOINT
CUSTODY
Efforts to understand joint custody have relied on the broader divorce literature, which consistently identified certain variables as critical to child and family adjustment. Dimensions of the pre- and postdivorce family that are most commonly addressed are family characteristics (e.g., socioeconomic status), child attributes (sex, age, temperament), parent functioning, father involvement and loss of contact, the parental relationship, and parent-child relationships. Results across multiple studies and populations concur that children of divorce show more behavioral and emotional problems than do
Overview of Selected Research 423
children in never-divorced families (Amato & Keith, 1991; Camara & Resnick, 1988; Duncan & Brooks-Gunn, 1997; Emery, 2004; Guidubaldi, Perry, & Cleminshaw, 1984; E. E. Hetherington & Kelly, 2002; J. S. Wallerstein & Kelly, 1980; Zill, 1983). Findings are most consistent about child and parental reactions to divorce in the first 3 years following the separation. For some children, symptoms persist into young adulthood (Ahrons, 2002; Chase-Lansdale, Cherlin, & Kiernan, 1995; Kelly, 1990; J. R. Wallerstein & Blakeslee, 1989). Problems are exacerbated by father loss (see Healy, Malley, & Stewart, 1990; E. M. Hetherington, 1972; Santrock & Warshak, 1979), marital and postdivorce parental conflict (Camara & Resnick, 1988; Cummings & Davies, 1994; Emery, 1982, 2004; Johnston & Campbell, 1988), parent adjustment problems (Kalter, Kloner, Schreier, & Okla, 1989; J. S. Wallerstein & Kelly, 1980), and diminished parental authority and closeness to the child (Hess & Camara, 1979; E. M. Hetherington, Cox, & Cox, 1982; J. S. Wallerstein & Kelly, 1980). Boys appear more reactive than girls in behavioral and social domains (Amato, 2006; Guidubaldi & Perry, 1985; Tschann, Johnston, Kline, & Wallerstein, 1990), and symptoms vary in accordance with developmental stage (J. S. Wallerstein & Kelly, 1980). Difficulties attributed to divorce may be ameliorated by highquality parent-child relationships (Clingempeel & Reppucci, 1982; E. M. Hetherington, 1989; Kline, Johnston, & Tschann, 1991; Tschann, Johnston, Kline, & Wallerstein, 1989), whereas father contact and involvement have proven to be less clearly related to child adjustment except through their association with quality parent-child relationships (King, 1994; Thomas & Forehand, 1993). The question that remains is how joint custody, in its various manifestations, adds to our understanding of family adaptation.
OVERVIEW OF SELECTED RESEARCH IMPACT
OF
CUSTODY TYPE
ON
CHILD ADJUSTMENT
A substantial research effort in the past 3 decades has focused on child adjustment postdivorce, with custody being one variable of interest. Some studies examining adjustment in joint versus sole custody arrangements indicated that custody status in and of itself does not significantly predict child postdivorce adjustment (Gindes, 2000; Kline, Tschann, Johnston, & Wallerstein, 1989; Luepnitz, 1982, 1986; Warshak & Santrock, 1983; Wolchik, Braver, & Sandler, 1985). As with the divorce research preceding it, the role of family process emerged as more determinative than custody structures (Folberg, 1991). Yet custody does not take a backseat to family dynamics in every study. Descriptive studies have reported increased self-esteem and competence and
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a diminished sense of paternal loss among JPC children, though a substantial proportion of children also were visibly distressed and confused (McKinnon & Wallerstein, 1986; Steinman, 1981; Steinman, Zemmelman, & Knoblauch, 1986). Some quantitative studies also found that JPC children fare better than their sole-custody counterparts in self-concept, behavioral adjustment, and relationships with new stepparents (Crosbie-Burnett, 1991; Glover & Steele, 1989; Shiller, 1986). Children also were less likely to exclude a nonresidential parent from their family drawings when the parents had joint custody and children perceived that their parents got along well (Isaacs, Leon, & Kline, 1987). Gunnoe and Braver (2001) found JLC children to have better adjustment than mother-custody children, even after controlling for a number of predivorce variables such as parental conflict that could account for the differences. A meta-analysis concurred that joint legal and physical custody are associated with better child adjustment compared to children living in sole-mother custody (Bauserman, 2002). Bauserman’s meta-analysis combined JLC and JPC but further differentiated that both types of custody were superior to sole-custody arrangements. From these studies we can deduce that as our body of knowledge accumulates, joint custody appears to give an edge to children over sole custody, defined either as decision making by or residential living primarily with the mother. Joint custody appears to lay the foundation for a long-term and committed relationship between both separated parents and children, providing the benefits to children of two involved parents (Juby, Le Bourdais, & Marcil-Gratton, 2003). Bauserman (2002) also notes that joint custody parents report less conflict in the past and present, although too few studies adjust for conflict to rule it out as a confound or alternative explanatory variable. Joint custody parents do appear to be a different breed from sole custody parents, and the custodial experience over time seems to heighten this difference. MODERATING VARIABLES
FROM THE
DIVORCE LITERATURE
The primary determinants of family adjustment postdivorce that have been addressed in the joint custody literature are parental characteristics and adjustment, child characteristics and adjustment, parent-child relationships, and parental cooperation and conflict. Parental Characteristics and Adjustment Socioeconomic Status There is a strong relationship between family income and children’s living arrangements, with joint custody arrangements most frequent among separating parents with higher education attainment and the means to support two separate homes (Cancian & Meyer, 1998; Donnelly & Finkelhor, 1993; Juby, Le Bourdais, & Marcil-Grattan, 2005). This suggests
Overview of Selected Research 425
that highly educated parents are more likely to know about and have the resources to implement a joint custody arrangement. It is less clear what relationship parents’ relative resources vis-a`-vis each other have to the establishment of joint custody. Maccoby and Mnookin (1992) concluded that relative economic sources don’t have an influence in determining living arrangements, but Cancian and Meyer found joint custody was more prevalent when parents contributed to the family income in an approximately equal degree. Shared custody may be more appealing to working mothers who are involved outside the home, whose partners, consequently, tend to lend more help and support within the home (Juby, H., Le Bourdais, C., & Marcil-Gratton, N., 2005; Yeung, Sandberg, Davis-Kean, & Hofferth, 2001). Satisfactions and Challenges Although there is some evidence that fathers with lower levels of depression (Greif, 1979) and mothers with higher levels of depression (Juby, H., Le Bourdais, C., & Marcil-Gratton, N., 2005) are more likely to be involved in JPC arrangements, most research relevant to parental adjustment emphasizes parental satisfaction and challenges. Studies report higher parental satisfaction with joint custody than sole custody (Ahrons, 1979; Greif, 1979; Luepnitz, 1982; Nehls & Morganbesser, 1980). From the male perspective, joint custody allows fathers to avoid some relationship constraints imposed by visitation or limited access and affords them the time and opportunity to effect positive changes in their relationships with their children following divorce. Fathers with joint physical custody usually report more satisfaction than fathers with nonresidential status (Ahrons, 1983; Irving, Benjamin, & Trocme, 1984; Kelly, 1990; Steinman, 1981). Furthermore, joint custody allows men to avoid the sense of loss and devaluation that has a tendency to occur in mother sole physical custody arrangements awarded by courts. In turn, however, joint custody requires fathers to exert much more time and effort to orient their work and social schedules to fit the requirements and needs of their children (Warshak, 1992). There are more conflicting reports regarding maternal satisfaction with joint custody arrangements. Although some researchers report that mothers appear just as likely to perceive joint custody as beneficial to the child’s adjustment (Bauserman, 2002), others report lower personal satisfaction with custody arrangements (Arditti & Madden-Derdich, 1997; Gunnoe & Braver, 2001; Paradise, 1998). Although joint custody gives women relief from the burden of sole responsibility for major decisions and assistance with day-today tasks of child rearing, it can potentially wrest away the control enjoyed in sole-custody arrangements, along with an essential part of their identity as a mother. Dissatisfaction also may arise from the perception that their legal role is out of proportion to their caregiving responsibilities, particularly if the mother was or is the primary caregiver (Gunnoe & Braver, 2001). Female
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satisfaction with joint custody is highest with high levels of paternal contact and low parental conflict (Bauserman, 2002; Benjamin & Irving, 1990). Benefits for mothers also include greater paternal compliance with child support orders, though this is not found uniformly across studies (Huang, Han, & Garfinkel, 2003; Maccoby & Mnookin, 1992; Seltzer, 1998); freedom from fulltime responsibilities; and more time for professional development (Gunnoe & Braver, 2001). Characteristics of Parents Most Likely to Create a Positive Joint Custody Environment for Their Child Only a few studies move beyond self-reported satisfaction to investigate which parental characteristics are associated with the ability to sustain shared parenting. Steinman et al. (1986) describe the qualities of parents who most easily master the tasks required for cooperative parenting. Key qualities were empathy, the ability to maintain appropriate boundaries between the parental and parent-child dyads, the capacity to separate personal needs from the child’s perspective, the ability to shift emotional expectations from those consistent with a spousal role to a coparental one, and flexibility. Parents who were least successful utilized coping strategies that included blaming and projecting feelings of hurt and anger onto the ex-spouse’s parenting behaviors. In a similar vein, Ehrenberg, Hunter, and Elterman (1996) found that parents who were able to agree on a coparenting arrangement proved to be less narcissistic, more empathetic, less self-oriented, and more child-oriented in their parenting attitudes. A majority of couples studied (75%) could be correctly classified on the basis of these qualities by whether they agreed on a coparenting arrangement. This research, in addition to employing a rigorous methodology, provides provocative information about for whom joint custody is appropriate. One interesting pathway shows that for some partners, an egocentric stance is situationally determined, arising from coping mechanisms that soften the psychological injury of the divorce. These persons overlap but are not the same group as the narcissistic individuals, whose self-orientation is personality-based. For narcissistically inclined persons, shared parenting may be successfully agreed on and maintained if services and supports are in place to cope with the vulnerabilities produced by the divorce. In contrast, when both parents are well-adjusted, cooperative, and amicable, joint custody is more likely to succeed (Gindes, 2000). Mothers’ attitudes and preferences also can be determinative of successful joint custody arrangements. Consistent with the maternal role of gatekeeping after divorce (M. K. Pruett, Williams, Insabella, & Little, 2003), mothers’ perception of the fathers’ parenting competence is an important factor in custody preferences (Juby, H., Le Bourdais, C., & Marcil-Gratton, N., 2005; Maccoby & Mnookin, 1992; Wilcox, Wolchik, & Braver, 1998). Mothers who
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perceive the father as a competent caretaker are more likely to be open to sharing custody. Age weighs in as a factor: The probability of joint custody is lower among mothers in their 20s and early 30s but rises after age 33 (Juby et al., 2005), suggesting a developmental component to joint custody that may evolve with changing maternal needs and developmental stages. Studies have also shown that mothers with higher levels of depressive symptoms are more likely to agree to shared living arrangements (Juby et al., 2005), presumably to obtain child-rearing assistance. This summary, taken together with parents’ economic considerations, points to the critical role of mothers in the selection and maintenance of joint custody. Their operant needs due to life stage, career path, and psychological vulnerabilities, as well as their attitude toward their former spouse, all contribute to the result of joint custody in postdivorce family life. Child Characteristics and Satisfactions General Satisfactions Children’s satisfaction and challenges have been assessed to a lesser extent than their parents’. To the extent that they have been examined, JPC children have reported greater satisfaction with living arrangements than children in sole-parental custody, citing their interest in remaining close to both parents as the primary reason for this preference (Steinman et al., 1986). Because JPC is relatively rare, it is likely that the select population who choose and sustain shared residences are more likely to have family dynamics that support positive experiences of shared living. Sex As mentioned earlier, boys do exhibit more behavioral and social problems associated with divorce than do girls, but as children grow older, girls exhibit more difficulties, with educational disadvantages directly related to divorce more pronounced for girls than for boys (Amato, 2006). Divorce as a whole, therefore, is related to problems for both sexes, and may then be further influenced by a particular custody arrangement. Empirical knowledge offers a few differences between boys’ and girls’ reactions and adjustment to joint custody, though once again there are not enough studies in which other variables, such as age and time of assessment, are held constant so that the relative contributions of sex can be determined. This caveat notwithstanding, several studies suggest that boys in shared parenting arrangements exhibit fewer behavioral and emotional problems and report fewer self-defined negative experiences compared with solecustody children (Shiller, 1986; Wolchik et al., 1985). Other studies have found less emotional loss experienced by school-age boys in shared physical custody (Luepnitz, 1982; Shiller, 1986). Indeed, boys are more likely than girls to be placed in shared or in sole-father custody (Cancian & Meyer, 1998; Fox & Kelly, 1995; Juby et al., 2005; Maccoby & Mnookin, 1992; Seltzer, 1990).
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Among high-conflict families, girls are at particular risk for developing symptoms, although boys are more vulnerable to being triangulated in parental conflict (e.g., Johnston, Gonzales, & Campbell, 1987; Johnston, Kline, & Tschann, 1989), suggesting that joint custody could buffer both sexes from some of the negative effects of parents warring over them, if it does not spur ongoing conflict through repeated opportunities. Because the general divorce literature indicates that boys are more likely to exhibit negative reactions to divorce, joint custody may ameliorate some of the negative impact of divorce for boys in particular, especially because they have greater access to the arrangement. The larger question of how joint custody lends support to healthy male development in divorced families longitudinally remains an open empirical question. Developmental Level Although Maccoby and Mnookin (1992) found that children between 2 and 9 years of age are more likely to be in shared custody, more recent research has found no link between the age of the child and the probability of shared custody (Cancian & Meyer, 1998). However, special concerns specific to two particular age groups, young children and adolescents, do exist. Developmentally these groups require large doses of parental coordination and sensitivity to help them master the autonomy and relational issues that become magnified at these stages of development. Children under 6 The tender years doctrine that formed child custody law arose from the awareness that the youngest children have great needs but are least able to express them directly or to act on their own behalf. Furthermore, parents and their young children confront a number of risk factors that are exacerbated by divorce. The group comprising children under 6 years is the fastest growing segment exposed to the effects of parental separation and divorce, composing at least 60% of large-scale study samples (Maccoby & Mnookin, 1992; M. K. Pruett & Jackson, 2002; Weitzman, 1985). These families are more likely to present disagreements over parenting arrangements than are parents of older children (Maccoby & Mnookin, 1992). Married couples with young children are more likely to be younger and less educated and to have fewer economic resources than couples with older children (Weitzman, 1985; Whiteside, 1995). Many postdivorce issues are related to socioeconomic status, including, as noted previously, the decision to participate in joint custody. In a comprehensive summary and meta-analysis of divorce literature pertaining to the youngest children of divorce, Whiteside (1995) found that the data for these children closely parallel the general divorce literature, with a few developmental caveats. More frequent father-child contact and father’s preseparation level of involvement were related to a positive father-child
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relationship. One factor that might be of particular importance to the development of father-child relationships is having overnight time together. The loss of father contact among infants and toddlers occurred primarily in families where the children did not spend overnights with their father (Maccoby & Mnookin, 1992). Time spent together without adequate opportunity for fathers to assume direct responsibility for the child’s care may not provide a sufficient foundation to establish a lasting relationship. The infant needs enough time with each parent to establish intimacy with each. For this to occur, it is crucial in the early stages of marital separation to achieve a balance of child care responsibilities that reinforces both parents’ access to the child and caretaking competence. For the majority of families, this will mean reorganizing family labor division after divorce because in most married families with infants and toddlers women are the primary parents. Whiteside (1995) concluded from her meta-analytic study that no information available from research suggests how long a young child can go without contact with one of his or her parents, the number of transitions per week a baby can handle, or how long a child should stay in each household. To fill this gap, Whiteside conducted semi-structured interviews with 11 experienced legal and mental health professionals working in the California court system. These practitioners identified factors that must be attended to in custody decisions with young children, including the length of time the child goes without seeing a parent, the number of overnights in each house, and the number of transitions between parents and with day care providers. Although even the youngest children were assumed to be capable of handling overnights, the practitioners concurred that the schedule should protect the child’s relationship with the primary caretaker. Frequent, shorter periods of contact were recommended for youngest children, with longer visits spaced further apart as the children grow beyond infancy and toddlerhood. However, more questions were raised than answered in Whiteside’s report because empirical validation from shared parenting studies has not yet been derived. M. K. Pruett, Ebling, and Insabella’s (2004) study provided the first indication that overnights did not harm young children (0 to 3 years) and offered strong benefits in terms of behavioral and emotional adjustment for preschool children (4 to 6 years). Relying on studies that differentiated results for youngest children from children in other developmental stages (Johnston & Campbell, 1988; McKinnon & Wallerstein, 1986; Steinman et al., 1986), results about cooperation and conflict within these families are especially applicable. Sustained contact under conditions of high conflict provides a harmful environment. Infants and toddlers whose parents are in frequent contact and who are supportive of one another appear to be well-adjusted, even when they spend overnights in different households (Solomon & George, 1999). An absence of contact between
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spouses does not show a consistent relationship with adjustment; other factors become more important moderators. Three clinical studies of paternal access to young children (Brotsky, Steinman, & Zemmelman, 1988; Johnston & Campbell, 1988; McKinnon & Wallerstein, 1986) found that parents’ commitment to the child and the quality of the interparental relationship were more closely linked to child adjustment than the schedule of contact in and of itself. Regardless of the amount of time children spent in two homes, high conflict, low cooperation, and disorganized care of the child resulted in aggression and regression. The conflict level was important, but so was the parents’ ability to protect the child from exposure or co-optation. Brotsky et al. reported that parental conflict negatively impacted children’s adjustment and was associated with parents’ distress. The children’s difficulties fed back to the parents, increasing their conflict in a negative feedback loop. These data debunk certain myths associated with young children and joint custody. Young children can do well behaviorally when separated from their mother for days and even overnights. Overnights are not inherently harmful. However, young children require a higher level of parental commitment to cooperation and conflict containment than is needed for older children. Adolescents In the largest study of adolescents to date, Buchanan, Maccoby, and Dornbusch (1996) examined children 10 to 18 years of age from 1,100 families from diverse socioeconomic groups in northern California. Fewer adolescents lived in shared parenting arrangements over a 3-year period than in mother- or father-custody arrangements. Boys selected JPC more often than did girls. The teenagers selected JPC when they wished to have more contact with both parents; they moved out of the arrangements when one parent moved away or when they had conflict with their primary custodial parent. Dual-residence teens were less depressed, had better grades, and described their ‘‘worst problems’’ in less severe terms than their sole-custody counterparts. Differences also were found between groups on a number of variables pertaining to parent-child relationships on dimensions of closeness and control, with significant findings favoring JPC families. The most important predictors of adjustment for all groups of teenagers were fewer numbers of life stressors, residential stability, parent-child closeness, and the degree of household management, especially monitoring. This suggests that older children can do well in any kind of custody arrangement so long as they have ongoing support and firm guidance from their parents, which may be facilitated by shared parenting arrangements. Parent-Child Contact and Relationship General divorce literature has found that the optimal amount of contact that a child should have with both
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parents is related to the degree of conflict between parents (as examined earlier), the nature of the parent-child contact, the sex of the nonresidential parent, and the characteristics of both parents. There is evidence that children living in father-custody homes maintain more contact with their noncustodial mother postdivorce than do children in mother-custody homes with their noncustodial father (Gindes, 2000). Herrerias (1995) further reported that 97% of noncustodial mothers continued to see their children 5 years postdivorce. Despite these figures, father-custody families account for a minority of postdivorce arrangements, as low as 10% in one jurisdiction (M. K. Pruett et al., 2003). Research regarding joint custody has devoted the lion’s share of its energies to examining the father-child relationship. The usual focus of these inquiries is the extent of joint-custody fathers’ involvement with their children over time. Many studies found JPC to be associated with more contact (Coysh, Johnston, Tschann, Wallerstein, & Kline, 1989; Greif, 1979; Johnston et al., 1989; Kline et al., 1989; Luepnitz, 1986). In Kline et al.’s study, children living in mother physical custody situations saw their father only 4 days per month on average, compared with 20 days for children living in JPC. A high-conflict sample produced an average of 4 days compared with 12 days for sole versus joint physical custody families (Johnston et al., 1989). Accordingly, mother satisfaction is greatest with high levels of paternal contact matched with low conflict. As with JPC families, JLC families show greater father contact and involvement in child care for joint- compared to sole-custody families (Albiston, Maccoby, & Mnookin, 1990; Arditti, 1992; Bauserman, 2002; Bowman & Ahrons, 1985; Wolchik et al., 1985). In the Wolchik et al. study, children in joint-custody homes spent an average of 7 hours more per week with their father than did children living in sole-custody homes. Findings have also shown that children do not need to be in JPC to show the positive adjustment often correlated with joint-custody situations (Bauserman, 2002), as many JLC children also spend a large proportion of time with their father. It is possible that more frequent paternal contact associated with JLC is attributable to the higher economic status of those families. Although Albiston et al. (1990) found a link between paternal contact and joint custody after the separation, the link was not significant when income and education variables were controlled in subsequent analyses. However, the link did remain after controlling for socioeconomic status in Kline et al. (1989) and Johnston et al. (1989), who assessed JPC families. Thus the link between JLC and paternal contact may not be sufficiently independent of socioeconomic status to show a correlation once the powerful effects of socioeconomic status are introduced. However, JPC and paternal contact by definition are more highly related.
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The fact that joint-custody fathers stay involved in their children’s lives raises a question about what difference that makes to children’s adaptation to divorce and overall development. In the general literature, studies have consistently found a link between father contact and child adjustment when the quality of the relationship, not the quantity of time, is employed as the independent variable (Healy et al., 1990; Hodges, 1991; Sobolewski & King, 2005; see generally Thomas & Forehand, 1993). This idea forms the basis for the argument that joint custody arrangements and research should move away from the early foundations of research, which emphasized the quantity of time spent with each parent, and focus more on the quality of parental involvement. Similarly, much of the general divorce literature unrelated to joint custody has shown that father-child contact increases the probability of positive child adjustment (see King, 1994; M. K. Pruett & Pruett, 1998; Sobolewski & King, 2005). Children who grow up apart from their father are disadvantaged in a number of ways, including a decrease in level of education, lower levels of psychological well-being, and an increased likelihood of experiencing marital instability and lower earnings in adulthood. These problems can be addressed through cooperative coparenting, which is a significant predictor of father contact, relationship quality, and responsive parenting (King, 2006). The element of contact serves as a mediating variable between cooperative coparenting and both father-child relationship quality and responsive fathering. Furthermore, strong ties to the nonresident father (as exemplified by a JLC situation) can benefit adolescent well-being by creating fewer internalizing and externalizing problems (King, 2006). These effects of father involvement on the adjustment level and well-being of the child, though important, are still modest, and the quality of the relationship between the mother and the child is still shown to have stronger and more consistent effects on the child’s adjustment (King, 2006). One interesting link has been made between father involvement and the mother-child relationship among adolescents (Buchanan et al., 1996). Adolescents, especially those in dual residences, tended to feel close to both their noncustodial father and their custodial mother, rather than to one or the other. Teens in JPC situations may thus benefit from a structure and process that encourages active participation from both parents. These studies lend credence to the probability that, when taken together with evidence of parents’ satisfaction with joint custody arrangements, parents who are sharing responsibility enjoy having a legal status that depicts their shared authority and involvement. Fathers with joint custody stay more involved with their children 1 year after the divorce than do fathers without custody (Bowman & Ahrons, 1985; Luepnitz, 1986), whereas father dropout is more likely among sole-custody fathers (Kline et al., 1989). After controlling
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for potential mediating variables, legal custody status explained a significant but small portion (9%) of the variance in father-child contact as reported by 80 men (Bowman & Ahrons, 1985). However, research has not sufficiently determined whether the adoption of joint custody agreements fosters an increased sense of shared parental responsibility. The arrangements would need to provide parents with opportunities for increased responsibility and sense of influence in their child’s life, as well as increased time together. Regularity, duration, and inclusion of overnights are important elements in fostering a warm, enduring bond between parents and young children (Whiteside, 1995). With teens, a briefer amount of time may be sufficient to produce a close relationship (Maccoby, Buchanan, Mnookin, & Dornbusch, 1993). From this and the information detailed earlier, we can conclude that joint custody provides reinforcement to those parents who are motivated to stay involved with their children, though the staying power of such nonresident relationships still dilutes over time (Huang et al., 2003). Child Support The topic of child support deserves special note. Financial support is one aspect of father involvement that clearly impacts family adjustment. Monetary issues are central to familial adaptation after divorce, influencing the degree and nature of parental conflict, resources, and physical environments available to a child and his or her residential parent, older children’s opportunities for higher education, and all the health and mental health factors correlated with socioeconomic status. Courts have tended to make fewer awards among parents sharing custody, raising concerns that joint-custody mothers will receive less child support than their sole-custody counterparts. In Maccoby et al.’s (1993) study, child support was ordered in more than 90% of the families in which the children lived primarily with their mother and in 66% of the families with joint custody. The authors did not report employment data after divorce, yet it is possible that some of the discrepancy can be attributed to the fact that joint-custody parents are able to work more hours, earning more than their sole-custody counterparts. Joint-custody mothers may also tend to be in a higher socioeconomic bracket independently because families who choose joint custody tend to be better educated and have higher socioeconomic status than other divorcing families (Juby et al., 2005; Luepnitz, 1982; Racusin et al., 1989). One difficulty is that joint physical custody may denote equal sharing of time spent with a child and associated expenses. However, time sharing may vary from near equal time to an arrangement that approximates regular visitation, equivalent to about 20% of a regular calendar year (Garfinkel, Melli, & Robertson, 1994). A question that arises in joint custody situations is the amount by which child support is to be reduced, which is known as the
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threshold. Most states do not reduce child support until the time spent with the less-seen parent is 30% to 35% above standard visitation amounts (Garfinkel et al., 1994). According to Garfinkel et al.’s analysis of child support orders, the most commonly used approach to reduce child support is based on parents’ incomes and time spent with the child. Although this formula appears to be fair, its implementation is often unfair. In some states, for example, no reduction is made at 30% time, but at 35% time, a 35% reduction is introduced. The 35% economic support loss for the 5% time reduction obviously results in a hardship to the primary custodian, most often the mother. Garfinkel et al. espouse an alternative method: to reduce support only for the amount of shared time beyond the threshold. A study by Huang et al. (2003) concluded that as nonresident parents are increasingly required to financially contribute to their children, it is more likely that they will increasingly demand rights to greater involvement in their children’s lives. This implies that a more effective and stronger system of child support enforcement has contributed to the rise in joint legal custody. The probability that parents will choose joint custody is 10% more likely when the family lives in a state with more effectual child support legislation. The authors of this study also suggest that 30% of the increase in joint custody from 1993 to 1998 can be explained by the improvement in child support legislation and enforcement. However, the mere correlation between enforcement and the rise of JLC does not necessarily prove that nonresidential parents will be more compliant with child support orders. Previous studies have strongly supported that joint custody has led to increased nonresidential parent involvement, but there is debate regarding the idea that the existence of joint custody increases the likelihood of child support payments. Some studies have found that joint custody has positive effects on child support payments due to this increased level of contact (Bartfeld, 2000; Brinig & Buckley, 1998; Seltzer, 1991b; Seltzer & Maralani, 2001; Warshak, 1992). In Pearson and Thoennes’s research, fathers in joint custody arrangements had the best record of compliance (85% to 95%), compared with fathers whose children lived in the sole custody of their mother, who complied 65% of the time. Parents with joint custody also report doing more financial extras for their children beyond the court-ordered agreement (Chambers, 1979). However, others find that joint custody does not increase the likelihood of child support compliance (Albiston et al., 1990; Arditti & Keith, 1993; Gunnoe & Braver, 2001; Seltzer, 1991a, 1998). At worst, no differences have been found between joint- and sole-custody family situations (Shrier, Simring, Shapiro, Greif, & Lindenthal, 1991). These inconsistencies may be a function of the dynamic that parental cooperation and a positive relationship, rather than custody per se, impacts fathers’ compliance with child support payments (Ahrons & Miller, 1993).
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Parental Cooperation and Conflict As data emerge identifying the many variables that interact in joint custody arrangements and it becomes clearer that the construct of joint custody itself is heterogeneous, scientific inquiries are guided by questions concerning the conditions under which these shared parenting arrangements will work best for certain types of family systems. A central concern about joint custody is that it increases the frequency of interactions between ex-spouses, thereby increasing the demands for cooperative communication and the potential for ongoing conflict and hostility. This section examines the knowledge about cooperation and conflict in normative custody situations in which anger and hostility are present at low to moderate levels. It also addresses issues pertaining to high-conflict and violent custody situations. Three cumulative findings have emerged from research. First, the decision and implementation of joint custody is part of the ongoing family processes that precede marital separation. A detailed assessment of a small sample of joint physical custody families indicated that those who are most successful at establishing and maintaining coparenting relationships are those who were much less angry about the divorce from the beginning. A much larger study of 678 persons concurred that the emotional state of the parents immediately following the separation had a significant impact on the coparenting relationship 1 year later (Maccoby, Depner, & Mnookin, 1990). Second, cooperative and conflictual parents are found in a range of custody and access configurations (Bowman & Ahrons, 1985; Kline et al., 1989; Maccoby et al., 1990; Pearson & Thoennes, 1990; Wolchik et al., 1985). Third, for cooperation and conflict to be useful predictors they must be discretely defined. They are affected by distal factors such as the amount of time passed since separation and child age, as well as proximal factors such as the content of discussion or conflict, its frequency and context, and the child’s role in the conflict (e.g., Maccoby et al., 1990). These factors also affect whether the cooperation or conflict has a direct impact on child adjustment or an indirect impact through its effect on other moderators such as the frequency and quality of the noncustodial parent and child relationship (Kelly, 1993). Given these complexities, few generalizations can be made about the connection between custody and coparental communication. It is not prudent to make decisions about custody based solely, or even primarily, on the interparental relationship except under more extreme conditions. Cooperation between Joint-Custody Parents Parental cooperation in joint custody research denotes sharing information and communicating directly about the child. A central belief about joint-custody parents is that they will cooperate more than sole-custody parents around child rearing, and that joint-custody children will therefore witness less tension and conflict than
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their sole-custody counterparts. Empirical support for this assumption is limited, though accumulating. Schepard (2004) speculates that joint-custody arrangements do not necessarily entail friendship between parents, but merely a toleration of each other’s legal rights, stating that potential conflict levels may change over time with education, mediation, or therapy. A metaanalysis of child adjustment in joint-custody versus sole-custody arrangements finds that joint-custody parents reported less current or past conflict than sole-custody parents, which is consistent with the argument that jointcustody parents self-select for low conflict (Bauserman, 2002). Nelson (1989) reported that JPC parents did discuss their children more often than a solecustody control group. Similarly, JPC status predicted higher levels of parental interaction and its quality (Bowman & Ahrons, 1985). In an 18-month follow-up report from the Stanford group, Maccoby et al. (1990) found that parents in dual-residence families cooperated to a higher degree. In a separate study from the same project, Albiston et al. (1990) reported that having joint legal custody did not predict higher levels of cooperation. The children’s residence made little difference in the pattern of coparenting the parents adopted (Maccoby et al., 1993). The overall picture suggests that higher cooperation may be present among joint-custody families, but it is not a characteristic that strongly differentiates the families from those in solecustody arrangements. It is possible that the benefits of having cooperative parents are magnified under shared parenting conditions (Buchanan, Maccoby, & Dornbusch, 1991). Viability of Joint Custody without Cooperation The extent and nature of cooperation is not correlated directly with custody type or arrangement (Kline et al., 1989; Pearson & Thoennes, 1990; Wolchik et al., 1985). Parents may be able to sidestep cooperative parenting and still promote healthy adjustment if they stay attuned to their child’s needs (Tschann et al., 1989). Also, Steinman et al.’s (1986) descriptive study of a 3-year longitudinal investigation identified qualities such as appreciation for the bond between the child and former spouse, maintenance of objectivity through the divorce process, and ability to empathize with the child and other parent as qualities of parents who successfully navigated joint custody. When one parent accepted or appreciated the other parent’s needs with regard to their child, cooperation was not as important. The age of the child may also determine the viability of joint custody without parental cooperation. Reports from the Stanford study indicate that parents tend to become more disengaged from each other over time, with the parents who engaged in discussions about their children declining from 67% to 40% over the 3 years of the study (Maccoby et al., 1993). Despite this, adolescents in shared-custody situations fared at least as well as those in
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sole-custody arrangements with less frequent visitation. By contrast, a metaanalysis of divorce studies pertinent to custody of younger children, though not specific to joint custody, indicated that a cooperative style and coparenting support are related to child and parent adjustment (Whiteside, 1995). Similarly, a study of overnights among young children found poor cooperation related to attachment distress among the children (Solomon & George, 1999). This pattern makes intuitive sense based on younger children’s developmental needs and the increased coordination and sharing of information required by parents of younger children. As children become more selfsufficient and independent they can manage more of their own affairs in concert with their divorced parents even if they are moving between homes. Viability under High-Conflict Situations The deleterious effects of parental conflict on child development in both married and divorced families is one of the most consistent findings in family interaction research. The evidence strongly suggests that the nature, severity, and management of conflict between parents are features of the quality of divorcing life that deserve primary consideration from legal decision makers. Although the area of conflict and cooperation has been extensively explored among the general divorce population, research has often meshed considerations of coparenting with greater access. Although increased access and visitation are obviously linked to the notion of joint custody, how much and where contact overlaps with shared residential arrangements and legal agreements is still not well understood. The available knowledge about joint custody with regard to conflict indicates that conflict is not merely the mirror image of cooperation. Dualresidence parents engaged in higher levels of communication with their exspouse, but their levels of conflict did not differ from those of primary residential parents (Maccoby et al., 1990). Similarly, custody and conflict were not related between sole maternal custody and joint physical custody groups (Johnston, Gonzales, et al., 1987; Kline et al., 1989), or when examined within joint physical custody groups defined by their success and satisfaction with their arrangements (Steinman et al., 1986). Levels of hostility and conflict did not differentiate those who had successful, stressed, or failed joint custody arrangements, nor did it differentiate those who maintained their arrangements from those who did not. Overall it would seem that joint custody can be successful under conditions of low to moderate levels of conflict. There is no evidence that, in itself, shared parenting will reduce conflict. Researchers have not yet determined whether conflict between parents in shared parenting arrangements will cause more or fewer problems among children than would similar levels of conflict occurring in sole-custody situations. The strongest empirical evidence that
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interparental conflict in shared parenting situations can adversely affect child adjustment emerges from two studies drawing from three distinct samples (Johnston, Gonzales, et al., 1987, 1989). These studies focused on a joint custody subgroup that was entrenched in high-conflict disputes. The data from this research suggest that these children, assessed 2 to 3 years after the divorce, have both overcontrolled and undercontrolled profiles of disturbance characterized by such symptoms as depression, withdrawal, and diminished interest in communicating. Additionally, this group of children reported somatic complaints. Role reversal, the caretaking of a parent, was also observed in these children and found to be an important indicator of child disturbance. This was especially true when fathers, rather than mothers, reversed roles with their children. Frequent access to the less-seen parent was identified as a central contributor to withdrawal in these children, as well as to inferior social competence compared to children living in sole mother custody arrangements. The sample sizes were relatively large for joint custody studies, and the ethnic diversity contributes to generalizability of the samples. Another study drawing on the Johnston et al. (1989) data confirm that, when parental conflict is high, frequent access actually predicts increased conflict and child symptomatology over time (Tschann et al., 1989). Despite this, other studies have found that the criticism that joint custody increases the potential for keeping feuding parents embroiled in conflict is unfounded, as there are no main effects of custody on reports of conflict and anger (Gunnoe & Braver, 2001) among moderately conflictual families. These studies demonstrate only that among highly conflictual parents the frequent access to each other serves to sustain hostilities and predict ongoing aggression. It is not at all clear that joint custody engenders conflict among the majority of the divorcing population. Two longitudinal studies indicate that conflict diminishes for the majority of parents and their children in the first several years after separation (Kelly, 1990; Maccoby et al., 1990). Ex-spouses simply have less to do with each other over time, with diminished sharing of information about child rearing. The clearest predictors in these studies were the extent of child-specific content during the marriage (Kelly, 1990), the degree of conflict at the beginning of the divorce process, and the amount of legal conflict, whether over support or custody (Albiston et al., 1990). Another feature mediating conflict, adversely affecting the success of joint custody arrangements, is the manner in which the conflict is expressed or contained (Maccoby et al., 1993). The presence of interparental hostility and conflict is less harmful if parents can separate marital from parental dimensions of their relationship. Conflicts about child rearing in particular are associated with poorer child outcome. Clarke-Stewart (1977) reviewed
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numerous studies and concluded that inconsistencies between parents are commonly associated with social developmental lags, such as immaturity and dependency. Differences in child rearing and disciplinary practices may be most salient for preschool and preadolescent children (Clingempeel & Reppucci, 1982). If parents are different in ways that are internally consistent, that are supportive or at least clearly separate from the other, the detrimental impact on children may be lessened. For example, school-age preadolescents adjusted well to dissimilar home environments when their schedule was predictable and parents cooperated with each other (Greif, 1979). This finding must be considered with caution given the very small sample size of eight families and the selection bias inherent in the study. The way parents protect or expose their children significantly affects how conflict impacts the children. Becoming the object of the battle or the parentified child has been linked to children’s poorer adjustment (Buchanan et al., 1991; Johnston et al., 1989). Turkat (2002) determined that many parents exhibit behaviors that are incompatible with shared parenting, outlining specific criteria for what is called ‘‘shared parenting dysfunction.’’ For parental behavior to be classified under this category, one of the parents must have significantly violated an existing court order for shared custody by engaging in behavior that is hostile or extensively uncooperative with the other parent, and the behavior must negatively affect the child and the other involved parent. A major component of this is chronic access interference. In the general divorced population involving children, 40% to 50% of parents will interfere with the access aspects of shared parenting at some point (Arditti, 1992; Turkat, 2002). This can include interference with access or one parent trying to turn the children against the other (see Kelly & Johnston’s, 2001, discussion of parental alienation syndrome). Among adolescents, higher parental conflict makes it more likely that children will feel caught in the ongoing dissension (Buchanan et al., 1991). Yet even some parents who maintain a relatively high level of hostility refrain from implicating their child; likewise, some cooperative parents have children who report feeling caught between their parents. The authors found that dual-residence children are more vulnerable to feeling loyalty pulls or caught in the middle than are sole-residence children. Thus just as the benefits from cooperative parenting were stronger for joint- than sole-custody adolescents, so too are the negative effects of conflict stronger for this subgroup. When Conflict Escalates into Violence More than a decade of research with various populations from across the state of California has shown fairly consistent findings: The highly conflicted group of families who cannot settle their legal disputes in brief mediation constitutes 9% to 15% of all divorcing families and 24% to 40% of those seeking a court-imposed decision
440 JOINT CUSTODY: A JUDICIOUS CHOICE
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FAMILIES—BUT HOW, WHEN,
AND
WHY?
(Johnston, 1996). Given the high association between divorce and violence (Schepard, 2004), especially at the time of separation, there is concern from joint custody opponents that the assumption of shared parenting may elevate postseparation conflict in this latter subgroup to the level of violence. Families who choose joint custody, especially JPC, are not likely to fall into this category. The violence is likely to be a carryover from marital dynamics established before the separation. Mothers’ reports of abuse in marriage are strong, consistent predictors of postdivorce physical abuse (Emery, 1982). Another concern commonly voiced is for the protection of women and children. Women who are being abused may place themselves and their children in grave danger when they try to end the marriage and thereby break the cycle of abuse. Out of fear and intimidation, women tend to trade financial entitlements for protective custody and hopes that the intimidation from the ex-spouse will stop (Pagelow, 1993). Children may be at higher risk: Research shows that children in abusive marriages are often victims of abuse themselves, and that the loss of one victim may lead to substitution of another (Geffner & Pagelow, 1990). These issues raise concerns about mandated joint custody effected through trials or mandated mediation. Since 1990 much progress has been made in establishing a rebuttable presumption that abusive parents should not be awarded joint custody; today there are custody statutes that address domestic violence in 44 states and the District of Columbia (Kurtz, 1997). As a result of the higher proportion of mediations resulting in shared parenting agreements, mandated mediation is targeted by opponents of joint custody in violent families. Opponents argue that joint custody in the presence of domestic violence perpetuates cycles of unequal power and intimidation, undermining a central tenet of mediation, which is to equalize power among men and women by putting the negotiations in their own hands rather than the court’s (Geffner & Pagelow, 1990; Pagelow, 1993). On the other hand, women of color and low socioeconomic status have not always been treated adequately in the adversarial system. They should not therefore be excluded from mediation due solely to a fairness question if they wish to participate. Careful attention paid to whether a woman is freely consenting to mediation or joint custody, and inclusion of a mediator trained in domestic violence issues, may help to correct power imbalances that skew the process (Geffner & Pagelow, 1990). Although states differ in the extent to which they consider domestic violence a valid prohibition against mandated mediation of postseparation parenting arrangements, the American Law Institute, an influential organization of judges, practicing lawyers, and law professors, has issued principles that ‘‘strongly and appropriately encourage courts to be sensitive to domestic violence risks . . . [and] when domestic violence is proved, the court should impose
Overview of Selected Research 441
limits that are reasonably calculated to protect the child or . . . parent from harm’’ (Schepard, 2004, p. 101). While mandating mediation may compromise needed protections for battered women, high-conflict divorcing families are not identical. Johnston and Campbell (1993) have developed an exploratory typology of violent couples from a sample of 140 families studied and provided mental health treatment. They distinguished four major categories: episodic or ongoing violence perpetuated by husbands against their wife throughout the marriage; female-initiated violence; interactive violence that arises out of troubled communications instigated by either party but ultimately controlled by the men; and situational violence connected to the separation or divorce trauma and controlled by whichever partner is abandoned or left by the other. The first group resembles the classic wife battering syndrome (Walker, 1984). For a small group of perpetrators that span the first two categories, violence was fueled by disordered thinking and paranoia of clinical proportions. For situational violence, also referred to as conflictinstigated rather than control-instigated violence (Fuhrmann, McGill, & O’Connell, 1999), interventions that mitigate the divorce-determined violence may strengthen some couples’ capacity to cooperate for the benefit of their child. The well-founded concerns about high conflict result in typecasting all high-conflict families in a manner that does not tell the whole story about whether joint custody could be beneficial, or workable, over time for some highly contentious families. Joint custody in conflict situations should proceed, then, with utmost caution and careful assessment of the family’s conflict history and current situation. JOINT CUSTODY
IN THE
LEGAL SYSTEM
The shadow of the law encompasses the shadow of the adversarial process under which families negotiate joint custody. Several elements of the current legal context in which joint custody is decided are elucidated to guide decision makers in understanding how their values and biases impact joint custody. The meaning of joint and sole custody to the people who are divorcing is one important issue. Legal commentators routinely call for a move away from the terms ‘‘custody’’ and ‘‘visitation,’’ implying ownership and nonparental relationships, toward terms of shared responsibility and ‘‘parenting plans’’ (e.g., Schepard, 2004). Patrician (1984) studied the connotations of joint versus sole legal custody and of custodial versus noncustodial parent for 90 men. Joint legal custody was most strongly associated with being fair, good, and equal. Sole legal custody, on the other hand, was associated with being unfair, selfish, unequal, bad, and useless. Custodial parents were viewed as
442 JOINT CUSTODY: A JUDICIOUS CHOICE
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WHY?
powerful, strong, winners, and dominant compared with noncustodial parents. These results suggest that for men, the vocabulary and meaning assigned to custody labels in the divorce process may exacerbate wounded pride, undermine confidence and sense of fairness, and inflame anger. These emotions in turn may undermine the spirit of cooperation needed for shared parenting and healthy child adjustment. Just as the vocabulary surrounding joint custody is changing to reflect involvement and shared responsibility, current research often focuses on the extent and quality of parental involvement rather than focusing on custody arrangements based on scheduling and time. Another contextual consideration affecting how joint custody will be viewed by families is the influence of legal professionals on the joint custody process. Unless judges and attorneys are open to the possibilities of joint custody for different kinds of families, its potential benefits will not be realized. Twenty years ago, Felner, Terre, Farber, Primavera, and Bishop (1985) surveyed 75 attorneys and 43 judges about their legal preferences. Fewer than one-third of the participants felt that joint custody is the best option for minor children. They emphasized its viability for all children only under certain conditions: a good interparental relationship, financial resources, parents’ mutual motivation, and the parents’ ability to place a child’s interests before their own. These conditions constitute the ideal environment for joint custody to take place. Judges and attorneys may be reluctant to recommend joint custody without substantial data indicating its potential for a wider range of families. Although how joint custody can benefit family adjustment is most obvious as an ideal, the joint custody literature reviewed here also indicates that a broader range of families could successfully share parenting responsibilities. Even with the data that exist, in many jurisdictions it is felt that men do not have fair chances to raise their children with as much involvement as they desire, a feeling manifested in the continued publication of articles that advocate for joint custody with ministerial fervor wrapped in empirical garb. For example, in a law review piece published in 1998, Paradise writes: ‘‘After a divorce, most fathers can, and should be considered as potential custodial parents on an equal plane with mothers, whether the custody awarded is sole or shared. . . . Such custody arrangements may, in many situations, be the closest thing possible to utopia’’ (pp. 6, 17). Increasing societal alarm about the possible perpetration of sexual abuse and domestic violence within families is also complicating divorce disputes. Judges denied custody significantly more often to the parent who had allegations levied against him or her, regardless of whether the information was substantiated (Sorensen et al., 1995). In fact, it was not substantiated in the majority of those cases. Allegations may be present in as many as 50% to
Overview of Selected Research 443
80% of parenting disputes (Maxwell, 1999). The potential for misuse of allegations by parents and decision makers plays a crucial role in determinations of joint legal custody and shared residential arrangements. A major change to the legal system includes a proposed presumption of joint custody. A presumption of legal custody (shared decision making), except for cases of proven violence, is supported by the American Law Institute in recognition of the importance of having both parents play an active role in their children’s life postdivorce (Schepard, 2004). As a legal standard, it serves as a statement of sex and parental equality. In any case, a presumption of joint custody could be accompanied by mandated mediation, particularly for disputes on issues that the parents cannot agree on (Schepard, 2004). With legal and therapeutic supports in place for parents to help them work through differing opinions about decisions, many parents could benefit from the security of a joint custody standard. A presumption of JPC, or equal time sharing, is more problematic. Most children do not equate relationships with the actual amount of time they spend with a parent on average or on a given day. Most parents do not have jobs that allow such arrangements, often resulting in the children spending more time in day care or afterschool care than if they remained in a more traditional arrangement. Studies in California (Maccoby & Mnookin, 1992) and Connecticut (Pruett, Ebling, Insabella., 2004 each found that only about 20% of parents tried JPC and that children still often spent more time with their mother. Equal parenting time presumptions also take choice and voice out of children’s hands (Schepard, 2004). Shear, Drapkin, and Curtis (2000) point out that joint custody is not a realistic option for many families; decisions do not take into account the child’s needs or the decisions simply have no benefit for parent or child. There are too many complexities in child development, family transitions, work schedules, and life courses to impose a social policy that assumes one pattern for all families over time. A number of states are attempting to reduce the adversarial nature of divorce by encouraging or mandating mediation for all families disagreeing about issues of custody and visitation (Emery, 1994). Mediation has been both touted and condemned for its potential role in promoting joint custody. There is strong evidence that mediated agreements are more likely to yield joint custody than are lawyer-negotiated agreements (Bautz & Hill, 1991; Bohmer & Ray, 1994; Emery & Wyer, 1987; Pearson & Thoennes, 1986), although mediated child custody agreements tend to break down at a higher rate than other custody agreements (Bohmer & Ray, 1994). It is possible that the parties are persuaded by the mediators to agree to joint custody, which helps to explain the frequency of joint custody arrangements found in the mediated samples (Grillo, 1991). Nevertheless, even small amounts of mediation (6 hours) radiate positive effects on father involvement, parental
444 JOINT CUSTODY: A JUDICIOUS CHOICE
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FAMILIES—BUT HOW, WHEN,
AND
WHY?
cooperation, and child outcomes as much as 12 years after the mediation (Emery, 2004). Emery’s data are especially powerful because the couples were randomly assigned to mediation or control groups and both sexes were satisfied with their experience and did not feel disadvantaged by the mediation. Benefits of participation proved to be short and long term for men and women. Potential for Reducing Legal Conflict In high-conflict families, joint-custody children are exposed to greater risk of being caught in the middle in pernicious ways that pose a serious danger to their development. This raises concerns for the children from high-conflict families who live in states where joint custody is presumed to be in the best interests of the child if the parents are willing to accept it. Data comparing outcomes in mandated joint-custody versus sole-custody awards are scarce due to the complexity of obtaining these data and controlling for relevant variables. Studies have consistently found that when parents freely enter into joint custody, they experience decreased relitigation compared to sole-custody parents (Dudley, 1991; Emery, Matthews, & Wyer, 1991; Emery & Wyer, 1987; Ilfeld, Ilfeld, & Alexander, 1982; Luepnitz, 1986). Luepnitz (1982) found that 50% of the study’s sole-custody families relitigated, whereas none of the joint-custody families did. Ilfeld and colleagues found that among 414 cases over a 2-year period, relitigation rates for joint custody were half those of sole-custody families, except among cases where joint custody was imposed without the consent of one parent. In the involuntary joint-custody cases, the relitigation rates for sole-custody and joint-custody families were comparable. The authors conclude that nonconsensual joint custody is no more disruptive to family relations than sole custody. Although this result has been interpreted to mean that mandating joint custody does not increase preexisting parental conflict (e.g., Schepard, 1985), a more conservative interpretation is warranted. It does indicate that the joint custody designation may remove the stimulus for returning to court for some couples, preventing a crucial type of conflict. It does not automatically signal that conflict is not high, however, or that the children are not exposed to higher levels of conflict than they would be otherwise. Whether the ability to keep the conflict out of the legal system identifies a family strength likely to lead to attenuation of hostilities and their fallout is an important area for further study. Other studies concur that court-imposed custody awards do not promote reduced litigation. In states that have experimented with court-imposed joint legal custody orders, relitigation is higher among court-ordered cases than in sole-custody cases. In Massachusetts a 20% relitigation rate for joint-custody cases was found, as compared to a 12% rate among sole-custody cases
Conclusion: Closing the Gap between Empirical Knowledge and Legal Decision Making 445
(Phear, Beck, Hauser, Clark, & Whitney, 1984). A similar conclusion was found in Michigan (see Kuehl, 1989). The benefits of joint custody may be lost and the process of custody decision making may become even more costly when it is imposed on parents who are not ready to undertake it. On the other hand, the experience of working out conflict without legal interference may increase one or both parents’ capacity or tendency to negotiate and compromise. Decision theory suggests that people who are forced to deal directly with each other are more likely to cooperate eventually than those whose relationships are less intertwined (Schepard, 1985). The argument against mandating joint custody is voiced consistently by clinicians who feel that children in high-conflict families pay too high a price in shared parenting arrangements (e.g., Johnston & Campbell, 1986; Johnston, Gonzales, et al., 1987; Johnston et al., 1989; Steinman et al., 1986). The presence of higher conflict increases the chance that children will become caught and used in their parents’ wars (Johnston et al., 1989). Parents may arrive at joint custody through several channels. Irving et al. (1984) described three kinds of joint custody groups, each differentiated by how parents selected joint custody. One group is characterized by both ex-spouses wanting and agreeing to joint custody. The second group is reluctant but accepts it as a compromise. The third group is mandated to accept it. Most of the positive payoffs for parents and children of joint custody reside in the first group, those who selected joint custody because they felt their children needed and deserved an equal relationship with both parents. The horror stories of joint custody are most commonly drawn from the high-conflict mandated group. The middle group presents the greatest challenge because they fall into a gray area about which little is known. This is potentially a high-conflict group, but one that may not yet be entrenched in destructive, conflictual interactions. This group could benefit from joint custody with early intervention and support. For the present, the preferred arrangements for this group are best determined on a case-by-case basis, to be bolstered someday by research that clarifies interactions between significant mediators of joint custody outcomes— variables relevant to the parental and parent-child relationships, as well as parental and child characteristics and functioning. CONCLUSION: CLOSING THE GAP BETWEEN EMPIRICAL KNOWLEDGE AND LEGAL DECISION MAKING Despite the gap left when accumulating empirical knowledge about joint custody slowed its pace years ago, joint custody research has established some fundamentals:
Joint legal and physical custody status benefits children beyond the relationship between joint custody and lower parental conflict.
446 JOINT CUSTODY: A JUDICIOUS CHOICE
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AND
WHY?
Joint legal and physical custody leaves fathers feeling more satisfied after divorce, which has a positive effect on their involvement with their children over time. Joint physical custody provides benefits in satisfaction and adjustment among more educated, child-centered families that are most likely to choose it. For these families, the structure may reinforce a natural tendency to work together as parents for their children after divorce. Custody arrangements do not systematically affect parental cooperation or conflict, nor do cooperation and conflict perfectly correlate with joint custody outcomes. Research robustly indicates that when families are in high conflict, joint custody of any sort does not heal the relationship, and when parents cannot contain their conflict to the marital dyad, it can be destructive for children. In short, conflict is harmful, and conflict plus frequent access to both warring parents is most destructive. Joint custody is a fluid variable because it is ultimately about coparenting, sharing time and decisions pertaining to one’s children. It is therefore about a family process rather than a static concept and is best examined longitudinally and with due regard for the complex set of mediators that undoubtedly impact individual families. But anything the law can do to nurture and sustain the benefits contained within the legal and residential designation will positively benefit children and their parents.
There are also a number of areas where research is needed to educate legal decision makers about when and how joint custody can best be implemented and supported. These inquiries should be guided by theoretical models that draw on empirical knowledge of divorce, understanding of the legal system, and psychological knowledge of child development and family process. The Collaborative Divorce Project (CDP; M. K. Pruett, Insabella, & Gustafson, 2005) is one model that provides a paradigm in which divorcing families with children under the age of 6 can be assisted in moving through the legal system in cooperative rather than adversarial ways, while gaining shared parenting skills and supports. The CDP used a longitudinal, randomized control design to test an intervention model that includes attorneys, judges, mental health professionals, and mediators. The model integrates case management, parenting education and support, mediation, and parenting coordination in a brief, cost-effective intervention implemented directly in the legal system. To date, the project has provided much new information about supporting parents in their coparenting efforts. Positive results include reduced parental conflict, increased father involvement, more joint legal
Conclusion: Closing the Gap between Empirical Knowledge and Legal Decision Making 447
custody and overnights for children, better child adjustment, greater use of alternative dispute resolution strategies, and less reliance on expensive and time-consuming court services such as evaluations, special masters sessions, and court appearances. Attorneys, too, report better outcomes for their clients (M. K. Pruett et al., 2005). Research on joint custody, or rather on shared parenting after divorce in all of its permutations, is in its early stages, after all. Other areas in which research is needed to help inform legal decision makers include the following:
Additional interventions that comprise psychoeducational, clinical, and legal interventions must be formulated and tested. For example, interventions must be tested for parents who believe in shared parenting but who are too angry with each other to feel secure in their implementation of it. These models can be assessed with families choosing different types of living arrangements. These families could benefit from short-term interventions within the legal context, such as family education, as well as brief therapeutic interventions aimed at helping couples separate marital from parental issues. Other families require mental health intervention on a longer term basis, with evidence suggesting that it should begin as early as possible in the separation process and continue through the changes that evolve in the first few years. Supporting a familial alliance during the divorce process may facilitate reasoned decisions that do not become as engulfed in the culture of the legal system, with its adversarial probabilities. We need more information about how to actively encourage men to participate in responsible parenting, beyond just spending time with their children, but staying involved at the nitty-gritty levels of child rearing and providing nurturing and discipline. The logistical and psychological mechanisms through which contact with the nonresidential parent leads to a better parent-child relationship constitute important questions for our time. Joint custody is associated with increased contact, but how that contact is developed and nurtured through living arrangements of various types, with children of differing ages, is less understood. These questions are especially salient in the current climate of frequent relocations by parents after divorce. We need much more information about effective interventions with high-risk families. Studies of children under the age of 6 and highconflict families are two such examples. Special techniques for families at an impasse (M. K. Pruett & Johnston, 2004) are needed to assess the foundation of the conflict and the best way to intervene under the varying conditions of different family dynamics.
448 JOINT CUSTODY: A JUDICIOUS CHOICE
FOR
FAMILIES—BUT HOW, WHEN,
AND
WHY?
Information from large samples of longitudinal studies that focus on the processes between transitions, overnights, parents’ emotional health, and the parental relationship needs to be elucidated. Under what conditions can children adjust well to different environments, at what developmental stages, and for what periods of time? How much time with a mother or a father is needed at what stages over the long course of development to maintain relationships at a distance? In this era of electronic devices, what kinds of supports can be used to promote nonresidential parent-child relationships, such as cell phones, e-mails, and video cameras? What are the dangers inherent in use of these devices, especially in relation to the primary custodial parent? In addition to more clinically oriented studies, research must focus on the legal system itself. Researchers have not investigated the degree to which lawyers for parents feel compelled or even try to temper parents’ positions when those positions threaten the child’s relationship with the other parent. Although a more holistic view of the family is being proposed for law school education (see Family Court Review special issue, Schepard & Salem, 2006), aggressive representation is still considered the sine qua non of legal advocacy. It is a difficult balancing act for lawyers to fulfill their legal obligation while keeping the child’s interests salient when the child is not the client. Legal options such as the single judge calendar management system, custody decisions made with neutral evaluators, the presence or absence of child attorneys, and various parenting arrangements determined under different kinds of legal processes are also important areas for further examination. The use of mediation will require further research to clarify its strengths and weaknesses in relation to parental decision making and children’s maintaining two residences. Postdecree remedies for parental violations of agreements must be researched to find the most effective deterrents from embroiling children as pawns in a game when coparenting and shared residential arrangements are the stakes of the game.
It is through research questions such as these that we can explore dimensions of shared parenting in detail and examine the legal and psychological processes that impact it. Through a renewed commitment to research that explores the realities of shared parenting, known also as joint custody, researchers can continue to do their part in support of coparenting that sustains families across the divorce transition and promotes the healthy adjustment and development of children into adulthood.
449
449 (73%)
212 (19%)
216 (37%)
82 (34%)
78 (33%)
320 (13%)
40 (20%)
254 (43%) 46 joint custody moms, 62 joint-custody dads
Albiston et al., 1990
Arditti, 1992
Bautz & Hill, 1991
Bowman & Ahrons, 1985
Crosbie-Burnett, 2001
Donnelly & Finkelhor, 1993*
Greif, 1979
Gunnoe & Braver, 2001
Author(s) Date of Publication
Sample Size (% Joint Custody)
Mothers Fathers
Fathers
Mothers Fathers
Fathers
Mothers Fathers
Fathers
Mothers Fathers
Participants
p
Descriptive Only
Yes
p
p Yes
p
p
p
p
Yes
p
p
Yes
p
Parental Self-Report p
p
Sole-Custody Comparison Group
Table 17.1 Legal Custody Studies Parent Assesses Child p
Yes
Yes
Child Assessed by Self or Nonparent
>4
7th–12th graders
