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Child custody evaluations
William Bernet, MD
Vanderbilt Forensic Psychiatry, Vanderbilt University School of Medicine,
1601 Twenty-Third Avenue South, Third Floor, Nashville, TN 37212 USA
Approximately half of the marriages in the United States end in divorce, which
affects more than 1 million children a year. Because approximately 10% of di-
vorces involve litigation over custody or visitation, approximately 100,000 chil-
dren a year are the subjects of legal battles.
Custody and visitation disputes may involve mental health professionals in
at least six different ways, which may be complementary or mutually exclusive.
(1) The most frequent possibility is that a child is already in psychotherapy when
his or her parents decide to separate or divorce. In that instance the role for the
therapist is not to make recommendations regarding the child’s custody but rather
to help the child cope with the changes in the family [1]. (2) Another possibility is
that the court might order that a child receive therapy as part of its custody decree.
Likewise in that instance, the therapist’s job is not to influence the outcome of the
legal dispute but to help the child adapt to the court’s decision and, hopefully,
have a good relationship with both parents. (3) The mental health professional
might serve as a mediator for divorcing parents, offering an alternative to the
adversarial process that frequently characterizes custody disputes [2 – 4]. (4) The
therapist may serve as a counselor for the mother and father, helping them learn
to parent their child in a cooperative rather than hostile manner [5]. (5) The
person might be the therapist for the mother or the father if that individual has an
emotional disorder that requires treatment. (6) Finally, the mental health profes-
sional (usually a psychologist or psychiatrist with child training) may perform a
custody and visitation evaluation.
These evaluations usually consist of psychiatric or psychological assessments
or both of the child and both parents, with conclusions and recommendations that
are intended to be in the best interests of the child. In performing custody
evaluations, the psychiatrist or psychologist may be an employee or consultant to
the court or may be an independent professional who has been invited to conduct
the evaluation by one or both of the parents. The methodology for a custody
evaluation is the topic of this article. Because the practice of forensic child psy-
1056-4993/02/$ – see front matter D2002, Elsevier Science (USA). All rights reserved.
PII: S 1056-4993(02)00019-6
E-mail address: william.bernet@vanderbilt.edu (W. Bernet).
Child Adolesc Psychiatric Clin N Am
11 (2002) 781– 804
chiatry and psychology is in an early stage of development, there is no single
standard procedure for conducting custody and visitation evaluations. Many
psychiatrists [6– 15], psychologists [16 –20], and other mental health and legal
professionals [21 – 24] have published papers, chapters, and books on this topic.
Several recently published books are particularly comprehensive. For example,
a book by Galatzer-Levy and Kraus [25] presents ‘‘the scientific basic of child
custody decisions.’’ The editors and a cadre of authors apply a vast amount of
research that ranges from child development to custody and visitation decisions.
The National Interdisciplinary Colloquium on Child Custody Law [26] produced a
‘‘deskbook for judges.’’ The Colloquium is an independent group of practicing and
academic lawyers, mental health professionals, and judges. Atkinson [27] authored
a comprehensive legal text that addresses child custody issues. Guidelines for per-
forming child custody evaluations also have been adopted by the American Acade-
my of Child and Adolescent Psychiatry (AACAP) [28], the American Psychiatric
Association [29], the American Psychological Association [30], and the Associa-
tion of Family and Conciliation Courts [31].
Brief history of divorce and child custody
Derdeyn [32], Kelly [33], and Mason [34] reviewed the history of child custody
policy and custody disputes. Public policy and legal practice in the United States
have passed through several stages, which may be summarized as follows.
Father preference. Through most of recorded history it was understood that the
children of a marriage were the property of the father and he routinely took
custody of the children when divorce occurred.
Mother preference. During the latter part of the nineteenth century, the English
and American legal systems started to act on behalf of the child and consider the
relative moral fitness of the competing parents. The ‘‘tender years’’ doctrine,
which was introduced in the late nineteenth century, presumed that young children
should be raised by the mother because she had a stronger attachment and would
provide better care.
Best interests doctrine. Since the 1920s, lawmakers and courts have placed
emphasis on ‘‘what is best for the interest of the child,’’ as expressed by Justice
Benjamin Cardozo (Finlay versus Finlay, 1925) [35]. The concept of best
interests of the child is broad and somewhat elusive but significant because it
implies that the needs of the child are more powerful than the rights of either
parent. During most of the twentieth century, however, courts almost always gave
custody to the mother when applying the best interests test.
Women’s and men’s liberation. Starting in the 1970s, our society emphasized
equality between the sexes—for example, many women objected to what they
perceived as having lower status in the work place and many men objected to
what they perceived as having lower status in child rearing. As part of this broad
social phenomenon, fathers challenged the assumption that the mother routinely
should be the custodial parent and the father the noncustodial parent. In 1981, a
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804782
landmark case (ex-parte Devine) established that the tender years presumption
violated the Fourteenth Amendment to the United States Constitution [36]. It is
estimated that fathers currently receive custody in approximately 10% of all
divorces that involve children but in a higher percentage of contested cases.
Joint legal custody
Many authors have advocated joint legal custody, especially when the parents
are able to communicate and collaborate with each other in a healthy manner and
take their children’s needs and wishes into consideration [37 – 40]. When joint
legal custody works, the parents engage in ‘‘co-parenting’’ [41]. It is estimated
that joint legal custody occurs in approximately 15% of divorces that involve
children, although this rate varies tremendously because of diverse and even
contradictory laws and practices among the states. That is, the laws of some states
(eg, Florida, Kansas, and Texas) strongly favor joint legal custody; the laws of a
few states (eg, Oregon and Vermont) limit it by requiring consent of both parents
before joint custody can be ordered.
Parenting plans
In 1996, the United States Commission on Child and Family Welfare made
recommendations that would change significantly the way divorced parents raise
their children [42]. The Commission shifted the focus from ‘‘joint custody’’ to
‘‘parenting plans.’’ Both concepts emphasize that children of divorce should be
nurtured and raised by both parents. Although the operational outcomes may be
similar, there are differences in what these terms imply. The concept of joint legal
custody emphasizes the legal end result (ie, that the judge has ordered that the
parents share certain rights and responsibilities). The concept of parenting plans
emphasizes the process by which divorcing parents work out an agreement
regarding almost every aspect of their child’s future care.
Some legal authors [43,44] have advocated parenting plans, and some states
(eg, Colorado, Missouri, Oregon, Tennessee, Washington, and West Virginia)
have passed laws consistent with the Commission’s recommendations regarding
this issue. To get away from the notion that the custodial parent was totally in
charge and the noncustodial parent was a second-class citizen, these laws have
emphasized shared parenting or co-parenting. In some states, the terms ‘‘custodial
parent’’ and ‘‘noncustodial parent’’ are no longer used; rather, the laws use terms
such as ‘‘primary residential parent’’ and ‘‘non-primary residential parent.’’
Rather than referring to ‘‘visitation,’’ these laws use the term ‘‘parenting time.’’
Divorcing parents are encouraged to work out a detailed agreement between
themselves, which is called the parenting plan. If the parents are not able to
develop a parenting plan together, they are expected to make use of mediation. If
the parents and the mediator cannot agree on a parenting plan, the dispute is
addressed in a traditional legal setting. Instead of having a trial to resolve the
custody and visitation dispute, however, perhaps in the future we will have
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804 783
‘‘parenting trials’’ to address ‘‘parenting disputes.’’ In the future, this article may
be entitled ‘‘Parenting plan evaluations.’’
The psychiatric or psychological custody evaluation
Most parents who separate and divorce do not need an elaborate and
expensive custody evaluation conducted by mental health professionals. In most
instances of divorce, parents work these issues out between themselves. In other
instances, a mediator helps the parents agree on plans for the child or a judge
simply takes the available information and makes the decision for the parents. A
formal psychiatric or psychological custody evaluation may be helpful to the
parents and the court in circumstances such as the following:
One or both of the parents have a mental disorder that may affect the
person’s parenting skills;
The child may have specific mental health needs that should be considered
in developing the custody arrangements or parenting plan;
The divorce has been unusually hostile and the custody evaluation is seen as
a less adversarial approach to making decisions involving the children;
The child’s relative attachment to the parents seems like an important issue;
It is suspected that one of the parents has tried to indoctrinate the child and
alienate him or her from the other parent; or
One parent has accused the other of physical or sexual abuse.
In conducting a custody evaluation, it is usually best to have access to all
members of the family. That is, the evaluator should interview parents, steppar-
ents, and all the children. The evaluator may want to interview other significant
individuals either in person or by phone, such as the current love interest of either
parent (especially if marriage is contemplated), grandparents, the baby-sitters,
school personnel, and the psychotherapists who treated the child or one of the
parents. There are several circumstances in which the evaluator is able to
interview both parents:
Sometimes the mother and the father—through their attorneys—agree on
having a particular psychiatrist or psychologist conduct the evaluation;
The judge who is hearing the case may order both parents to participate in
the custody evaluation; or
Sometimes the mother already has consulted a mental health professional and
the father already has consulted a different mental health professional. The
parents agree to exchange interviews so that the father’s expert has a chance
to meet with the mother and vice versa.
If the evaluator has met with the mother and the father, it usually is possible to
comment on the strengths and weaknesses of both parents, describe the child’s
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804784
attachment to both parents, and make specific recommendations regarding cus-
tody and visitation. In other circumstances the evaluator may not be able to
accomplish a comprehensive assessment. That is, he or she might perform a one-
sided evaluation by interviewing only one parent and the child. For instance, the
father might consult a psychiatrist or psychologist and bring the child for eval-
uation, but the mother may refuse to come to any appointment. In such a case the
evaluator could make limited observations and recommendations, such as com-
menting on the psychological condition of the father and the child, describing the
parenting skills of the father, and evaluating the attachment between the father
and the child. If the evaluator has seen only the father and child, he or she would
not be able to say anything about the psychological status of the mother. Also, he
or she usually would not be able to make any recommendations regarding cus-
tody because there is no way to compare the mother with the father. If the psy-
chiatrist or psychologist has been asked to conduct a one-sided evaluation, it is
important to determine whether the parent who is bringing the child actually has
the authority to authorize the evaluation. Unless it is an emergency, it usually is
considered unethical to see a child for psychiatric or psychological evaluation
without the permission of the custodial parent.
Format for the evaluation
Although practitioners may vary in their methods, the following components
are common in custody and visitation evaluations.
Initial conference
It is usually helpful at the outset to have a meeting with the mother and father
together to clarify the purpose and the format of the custody and visitation
evaluation that will occur. This initial conference is used to review and resolve all
of the administrative aspects of the evaluation, such as the following:
The chronology of the marriage, including the births of the children, the
separations, and the divorce;
The legal status of the case, such as pending court dates;
The court order that authorizes the evaluation;
The names and addresses of the attorneys; and
The current situation, including the current visitation schedule.
The initial conference is used to schedule all of the testing and interviews that
constitute the evaluation. It is also an opportunity to obtain the written authori-
zations from both parents to obtain additional information from the pediatrician,
teachers, therapists, and other pertinent individuals. The evaluator should obtain
written permission from both parents to release clinical information at the end of
the evaluation to both of the parents’ attorneys, the guardian ad litem or attorney
for the child (if there is one), and the court. The arrangements for payment also
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804 785
should be established at the initial meeting. In many cases, the parents agree to
split the cost of the evaluation and arrange for payment before starting the
evaluation or at the time of each appointment. Finally, the practitioner can use the
initial conference to see whether the mother and father want to proceed with a
lengthy evaluation or if they are willing to negotiate with each other to arrive at
some solution to the dispute, which makes the evaluation unnecessary.
At the outset of the custody evaluation, it is wise to clarify ethical issues such
as confidentiality and role definition. Children and parents must be aware that this
forensic evaluation does not provide total confidentiality. For instance, one of the
parents might bring in a lengthy written diary and ask the evaluator to read it.
Before accepting this document, the practitioner should explain clearly that any
material that he or she reads in conducting the evaluation might have to be
produced for the other side because of a court order pursuant to a request by the
opposing parent and attorney.
The evaluator collects much personal information about the parents and other
family members. Ultimately, much of this information is presented in the written
report (to be read by a judge, attorneys, and other persons) and perhaps in the
testimony of the evaluator. The mental health professional should reveal sensitive
information only when it is necessary to support conclusions or recommenda-
tions, however. Otherwise, information about the parties and family members
should be kept out of the report when it is not pertinent to the issues addressed in
the evaluation.
Regarding role definition, it is important for the parties to understand the
difference between a forensic evaluation and psychotherapy. That is, the forensic
evaluation is not therapy, although it may be therapeutic in the general sense.
Also, practitioners who are already involved with some member of the family as
a therapist should not perform a custody evaluation [45]. Those are mutually
exclusive roles that should be performed by different professionals.
Parent meetings
The evaluator meets with each parent individually to complete a clinical
evaluation and assess that person’s parenting attitudes and skills. This evaluation
may require one long meeting of 2 or 3 hours or several shorter meetings.
Although evaluators have different priorities as far as what information to collect
from each parent, a sample agenda could include the following items:
A brief history of the marriage;
A brief history of the period of separation and divorce;
Information about each child, such as the parent’s opinion of the child’s
strengths, weaknesses, and reactions to the divorce;
The past history of the parent, including education, work history, and legal
problems, such as arrests;
The psychiatric history of the parent, including symptoms, episodes of treat-
ment, and how it might have affected that parent’s relationship with the child;
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804786
The medical history of the parent, including use of drugs and alcohol;
The parent’s proposal for the child’s custody and visitation;
The parent’s feelings toward the other parent.
To assess parenting attitudes, the evaluator may decide to present several
hypothetical situations for the parent to assess and resolve. For example, ‘‘If you
are granted custody of the child, how would you help the child maintain a good
relationship with the other parent?’’ and ‘‘If you lose custody, how would you
maintain a good relationship with the child?’’ As with any psychiatric or
psychological interview, the evaluator is interested not only in the content of
the answers but also in the way the parent approaches the task of the interview
and the parent’s style of relating to the interviewer.
Child meetings
The meetings with the child should be used to accomplish these tasks:
complete a clinical evaluation of the child, assess the child’s attachment to each
parent, determine how the parents’ separation or divorce has affected the child,
and assess whether the child has been indoctrinated in some way. In most
circumstances the evaluator should determine the child’s preferences regarding
custody and visitation and his or her reasons for that preference. In some instances
it may not be appropriate or useful to elicit the child’s conscious preferences. For
example, a young child or a child who is severely mentally disturbed might be
confused or befuddled by an adult asking where he or she wants to live.
There should be at least two interviews with the child so that each parent
brings the child for one appointment. The content and format of the interviews
depend on the age of the child.
With preschool-aged children, the evaluator may want to start the interview
with the parent and the child together. The evaluator could invite the parent
and child to engage in some play activity together, such as drawing pictures
or building with blocks, and ask them to plan a weekend outing together. It
should be possible to make observations about how the child and the parent
deal with such an assignment. Approximately halfway through the meeting the
evaluator should ask the parent to leave and explain to the child that the parent
is waiting outside the interview room. (The evaluator should explain this pro-
cedure to the parent before the interview.) When the parent leaves the room,
the evaluator should observe how the child and parent deal with separation.
During the remainder of the meeting, the evaluator can use play, drawing, or
other techniques that are customarily used in assessing young children. At the
end of the meeting, the evaluator should observe how the child and parent deal
with reunification.
With latency children, the evaluator can use a semi-structured interview
commonly used in clinical evaluations of children. He or she can introduce
topics or tasks that pertain to school, peers, recreational activities, and family
relationships. Simple projective questions can be helpful, such as the baby bird
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804 787
story, the deserted island story, going on a picnic, and the magician who can grant
three wishes [9].
In using the baby bird story, the evaluator says that he or she wants the child to
help make up a story. The evaluator may say, ‘‘One time there was a baby bird
that lived in a ... [The child says, ‘‘nest’’]. The bird lived in the nest with its ...
[‘‘mother bird’’] and [‘‘father bird’’]. One day there was a big storm and there was
a lot of rain and ... [‘‘lightning’’] and [‘‘thunder’’] and [‘‘wind’’]. There was so
much wind that the mother bird was blown over in that direction and the father
bird was blown over in the other direction. The baby bird was blown out of the
nest. The baby bird, by the way, could fly, but only a little bit. Tell me what
happens next in the story.’’ At that point the evaluator prompts the child to finish
the story with as much detail as possible.
In using the deserted island story, the evaluator asks the child to help with a new
story. The evaluator asks the child if he or she knows what an island is and then
what a deserted island might be. If necessary, the evaluator ‘‘sets the scene’’ by
providing a brief description of a deserted island. Then the evaluator proposes that
the child might go on a trip to a deserted island and asks questions such as: ‘‘How
would you get there? What provisions would you need to take? Who would you
take with you?’’ The child might list several people. The evaluator can say:
‘‘Suppose you only have room to take one person with you to the deserted island.
Who would you take? Why would you take that person?’’ The picnic story is
similar, but a picnic might be more familiar to some children than a deserted island.
In using the magician story, the evaluator first asks the child if he or she knows
what a magician is. The evaluator sets the scene with a description of what a
typical magician looks like and what the magician does. Then the evaluator says,
‘‘Suppose you are walking down the street. You see a magician who has on a
black outfit and a cape. The magician comes up to you and says, ‘Freddie, I am a
magician. I can give you anything that you want. I can change anything in your
life that has happened to you. I can make anything happen in the future that you
may want. Tell me something you want me to do.’’ After the child replies, the
magician offers two more wishes [9]
1
.
The child might express himself or herself through drawings, such as drawing
a person, drawing the family doing something exciting, or drawing a picture of
something happy or fun and something that is not so nice. One approach is to
make a list of the parents and stepparents and ask the child what he or she likes
and does not like about each person. The child’s dislikes might turn out to include
information about child maltreatment or parental behavior, such as alcohol and
drug abuse. The evaluator might ask the child to describe the current custody and
visitation arrangements and ask whether the child would want them changed in
any way. If the evaluator chooses to elicit the child’s preferences, it should be
1
The previous three paragraphs are reprinted from Bernet W. The child and adolescent
psychiatrist and the law. In: Noshpitz JD, editor. Handbook of child and adolescent psychiatry. New
York: John Wiley & Sons; 1998. p. 438 – 67; Reprinted by permission of John Wiley & Sons, Inc.
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804788
done in a way that minimizes the importance of the question. It is useful to
mention that it is really the judge who is going to decide this issue, not the child
or the interviewer. Because of the possibility of parental indoctrination, the
interviewer should explore what each parent told the child to say to the evaluator
and what the parents say about each other.
With adolescents, the evaluator may take the tack of asking them to express
opinions about the current situation at home. For instance, adolescents might
relate their perception of the relationship between the parents, what they know
about the reasons for the divorce, and the effects of the divorce on their own life.
Most adolescents can discuss the advantages and disadvantages of life with each
parent, the merits of particular visitation arrangements, and how to keep their
own lives from becoming entangled with their parents’ issues. The adolescents
may have definite opinions about where they want to live and what they want to
say to the judge. The evaluator should explore in detail the reasons for their
preferences and other aspects of the case, such as how the adolescents intend to
maintain a good relationship with both parents.
Outside information
In conducting a custody and visitation evaluation, the evaluator should collect
information from certain outside sources after obtaining permission from one or
both parents, as appropriate. It is usually helpful to interview the other people
who live in the mother’s or father’s home, such as stepparents, grandparents,
nannies, and other siblings who are not directly involved in the custody dispute.
In some cases it is appropriate to speak on the phone with the family’s
pediatrician, because he or she may provide unbiased observations about both
parents’ skills and attitudes. Although schoolteachers and daycare workers may
provide useful information, the evaluator must be mindful that they already may
be allied with one of the parents. It is important to speak to previous and current
psychotherapists of the child and the parents. Although it usually is advisable for
therapists to avoid making formal recommendations or testifying in court, it can
be helpful for therapists to discuss their observations of the parties with the
individual who is conducting the independent forensic evaluation.
Psychological testing
Psychological testing can be useful in many custody and visitation evalua-
tions. Comprehensive personality inventories such as the Minnesota Multiphasic
Personality Inventory-2 [46] and the Personality Assessment Inventory [47] can
be used to screen for unidentified parental psychopathology and determine each
parent’s overall psychological adjustment. Both of these tests also contain scales
that indicate the person’s openness to providing sensitive information; identifica-
tion of a defensive parent is often particularly useful when there are allegations of
abuse or misconduct.
In some circumstances, it may be helpful to conduct formal intellectual testing
(if there is a question about a parent’s cognitive abilities) or a battery of projective
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804 789
tests (if there is a question about the diagnosis of a parent’s mental illness).
Projective psychological tests constitute an opportunity to observe the parent’s
efforts to cope with an unstructured and stressful situation and provide information
about psychological resources and characteristics. Other psychological tests, such
as the Parenting Stress Index [48], can provide information about a parent’s level of
attachment to the child, perceived problem areas in the child, and the perceived
helpfulness of the spouse. The Ackerman-Schoendorf Parent Evaluation of
Custody Test [49] is designed to assess the fitness of parents for custody. This
test is composed of three scales: observational, social, and cognitive-emotional. If
psychological testing is used, the same tests should be administered to both parents.
Psychological testing of the child also can provide useful information.
Behavior rating scales such as the Achenbach Child Behavior Checklist [50]
and the Personality Inventory for Children [51] can identify problem areas and
clinical syndromes. The Family Relations Test [52], although not standardized,
provides a nonthreatening means of assessing a child’s feelings toward each par-
ent and the child’s overall style of dealing with unpleasant feelings.
Bricklin [53] introduced several standardized psychological tests that are spe-
cifically intended for custody evaluations, including the Bricklin Perceptual Scales
(BPS) [54], the Perception-of-Relationships Test (PORT) [55], and the Parent
Awareness Skills Survey [56]. In administering the BPS, the evaluator asks the
child 32 questions about the mother and the same 32 questions about the father.
One of the questions, for example, is, ‘‘If you had to memorize a long, boring
poem for school, how well would Mom do at being patient enough to help you
learn this?’’ The questions are sequenced in such a way that the interviewer never
asks the child to compare directly the merits of the mother and father. In this test,
the child answers the questions verbally and nonverbally by punching a hole in
a card with a stylus. The child’s nonverbal responses can be measured and the
64 answers scored to give a composite score, which indicates which parent is the
preferred parent for that child. According to Bricklin, the nonverbal responses are
less susceptible to parental influence than are verbal responses. The theoretical
basis for the BPS and PORT is that the parents may seem to others to be equally
qualified to be the custodial parent, but the child may perceive one of the parents to
be more nurturing or desirable.
Conference with attorneys and parents
At the end of a custody and visitation evaluation, some practitioners schedule
a conference with the attorneys and parents together. This face-to-face conference
gives the evaluator an opportunity to explain his or her conclusions and
recommendations and explain why certain factors were considered more import-
ant than other issues. This wrap-up conference gives the parents and attorneys an
opportunity to ask questions and allows both parties to have access to the
evaluator’s answers. Parents and attorneys deal with these conferences in many
ways, and sometimes it leads to a constructive discussion of co-parenting. A
variation of this approach is to schedule separate meetings: first with the two
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804790
attorneys, followed immediately by one parent, and followed immediately after
that by the other parent. After the wrap-up meeting(s), the evaluator finalizes the
written report and sends it to the attorneys and to the court. Occasionally, the
parents do not want a wrap-up conference or a face-to-face meeting, so the eval-
uator simply prepares the written report and distributes it.
Critical factors
It is understood that in contested cases decisions regarding custody and
visitation are guided by seeking the best interests of the child. Parents and
attorneys may disagree about exactly what constitutes the best interests of this
child in their particular set of circumstances, however. There is no standard set of
guidelines for what factors should be taken into consideration and what weight
should be given to each factor. Each state has its own laws and precedents that
spell out the issues for judges to consider in that jurisdiction. It is likely that
evaluators and judges are influenced by their personal values when they make
recommendations and hand down decisions in these cases. Many legislatures,
courts, and mental health professionals consider the following issues important in
child custody and visitation determinations.
Factors associated with the parents
Parental rights doctrine
When the dispute is between a biologic parent and some other individual, such
as a grandparent or an uncle or a foster parent, it is generally held that the
biologic parent has a greater right to the child as long as he or she is considered
‘‘fit.’’ Sometimes this principle seems to contradict the principle of pursuing the
best interests of the child, because a child might be removed from a wonderful
foster home and returned to biologic parents who are barely adequate. In the 1966
landmark case of Painter versus Bannister [57], the Iowa Supreme Court decided
that a boy should remain in the custody of his grandparents rather than return to
the custody of his father.
Parental morals
Courts do not look favorably on parents who have a history of felony con-
victions, prostitution, substance abuse, or adultery. Attitudes about moral issues
change over time. Previously people believed that parents never should date
until the divorce has been finalized, but such conduct is currently acceptable in
most jurisdictions.
Parental attitudes and parenting skills
The evaluator should be able to assess whether the parent truly tunes in to the
child’s emotional and physical needs or simply considers the child a narcissistic
extension of himself or herself or is anxious, passive, and helpless in common
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804 791
child care situations. Another issue is whether the parent truly appreciates that it
is in the child’s interests to have a good relationship with both parents, which is
true in most, but not all, instances.
History of caretaking
In some families one of the parents has been much more involved with day-
to-day child-rearing activities. That is, the parent has fed and bathed the children,
supervised their homework, organized their birthday parties, and taken them to
the pediatrician, which may favor that person to be the custodial parent.
Continuity of placement
It is usually preferable to continue the current custody arrangement unless
there is a good reason to change it. Usually a parent cannot file for a change in
custody unless there has been a change in circumstance since the last time the
court decided the issue.
Physical health
It is important to assess whether one of the parents has a serious or chronic
illness that would compromise that person’s ability to nurture the child.
Mental health
The clinical evaluation should reveal any serious psychiatric condition or any
significant drug or alcohol abuse. The evaluator should comment on whether the
psychiatric condition impairs parenting skills. For example, a history of repeated
bouts of paranoid schizophrenia would be ominous, whereas a past history of a
postpartum depression might have little impact on current and future parenting
abilities. The specific diagnosis may not be as important as an assessment of the
person’s parenting skills in the present and the future.
Religious beliefs
Although this is not a psychiatric issue, many judges prefer a parent who is
devout over one who is disinterested in religion. An evaluator may be asked to
comment on whether a person’s religious beliefs have reached the point of be-
coming fanatical or even delusional, which could affect one’s style of parenting.
Also, the issue of religion might be a consideration if the child already has formed
an attachment to a particular faith and it would be confusing or disruptive to in-
terrupt that attachment.
The households
A parent who intends to remarry may be able to provide a more traditional
family-oriented atmosphere. The evaluator should be aware of this and interview
the potential step-parent(s). The evaluator also should have some awareness of
the general neighborhood in which each parent will live after the divorce.
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804792
Financial considerations
This generally is not a factor, because ideally payment of child support tends
to equalize financial differences. However, an evaluator might consider finances
to be meaningful if it results in a large difference between the households, for
instance, if one parent lives in a neighborhood that is much safer and has much
better schools.
Allegations of physical or sexual abuse
In recent years, allegations of abuse have complicated the conduct of custody
and visitation disputes. What typically happens is that one parent alleges that
somebody in the other household—the parent or stepparent or perhaps a love in-
terest—has sexually abused the child. The alleging parent usually wants visita-
tion to be curtailed or discontinued. If these allegations are substantiated, it has a
bearing on the child’s custody and visitation. AACAP has developed a practice
parameter for the evaluation of children who may have been abused [58].
Factors associated with the child
Child’s attachment to the parents
This issue is important and can be assessed by a mental health professional who
is experienced in interviewing and evaluating children. The child psychiatrist or
psychologist can find indications of the child’s attachment and bonding to the
parents in various components of the evaluation. For instance, information may be
obtained from observations of the child and parent playing together; the details of
the baby bird story, the picnic story, the family drawing, the lists of likes and
dislikes, and other parts of the semi-structured interview of the child; testing, such
as the BPS and PORT; and the parents’ discussions regarding the child. Many
children have a solid, positive attachment to both parents, which is the most de-
sirable circumstance. Some children, however, have a much stronger and healthier
attachment to one of the parents.
Child’s preference
Many children understand that their parents are fighting over their custody but
do not have a strong opinion or preference as to their living arrangements as long
as they continue to spend time with both parents. Other children are able to
express a definite preference and can explain their reasons for that preference.
For instance, a child might express that one parent is warm and nurturing and
the other parent is cold and aloof. The evaluator should determine whether the
child’s stated preferences are substantive, meaningful, and consistent with the
evaluator’s own observations (eg, ‘‘My stepmom is really mean!’’), based on
trivialities (‘‘Daddy lets me stay up late on the weekend.’’), or misinformed
(‘‘Mommy told me that Daddy is stingy.’’). Whether the judge considers the
child’s preference depends on the child’s age and varies from state to state. In
general, a court is likely to give more serious consideration to the preference
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804 793
expressed by an adolescent than that of a child. In some states, the court is
required by statute to consider the child’s preference once the child reaches a
particular age.
Child’s gender
Some courts and mental health professionals have believed that there is a slight
preference for placing custody with the parent of the same gender as the child. This
factor might be contributory, but not decisive, to the final recommendation.
Indoctrination and alienation
Mental health professionals have noticed that children of divorce may favor
one parent over the other and may resist greatly visiting the nonresidential parent
[59– 61]. This issue comes up in custody evaluations and in the psychotherapy of
children of divorced parents. One parent (usually the nonresidential parent) may
allege that the other parent (usually the parent with whom the child lives most of
the time) is actively indoctrinating the child to reject the first parent and favor the
second parent.
The forensic evaluator, the attorneys, and the judge should not jump to the
conclusion that the preference, which the child experiences strongly, is the result
of parental indoctrination. There are several possible explanations for the child’s
active rejection of visitation.
Maltreated child
Perhaps the child actually was abused or neglected or disliked by one parent or
current love interest of the parent, so it is natural that the child would not want to
visit that household.
Purposeful indoctrination
Perhaps one parent systematically and purposefully has indoctrinated the child
to favor him or her (this allegation is usually made against the mother) by em-
phasizing his or her affection for the child and criticizing or even condemning the
other parent. If that occurs, it could be driven by several possible mechanisms: by
one parent’s realistic appraisal of the situation, by spitefulness toward the other
parent, by a strongly felt need for the child’s affection, or by one parent’s distorted
perceptions regarding the other parent.
Accidental indoctrination
Perhaps the primary residential parent (again, usually the mother) has caused
the child’s alienation from the other parent but has not done it on purpose. For
instance, the mother may be an anxious person who worries and communicates
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804794
her anxiety to the child. She may start crying or be noticeably worried when the
child leaves for visitation but insist that the child go anyway.
Worried child
It is possible for the child to resist visitation and seem to favor the residential
parent over the nonresidential parent despite the fact that neither of the parents
did anything specific to cause the child to have these feelings. That is, perhaps the
child started out with a slightly better attachment to the residential parent. The
child worried after the departure and loss of the nonresidential parent, so the child
becomes fearful that he or she also will lose the remaining residential parent. As a
result, the child experiences an attachment to the residential parent that is greatly
exaggerated and fears separation from that parent.
Stubborn child
Although the child has a good attachment to both parents, the child may be
upset that they have separated and divorced. That is, the child is upset (sad, angry,
resentful, worried) about the situation and does not want to participate in the
process. The child expresses his or her feelings by objecting vehemently and
stubbornly to the visitation, although ordinarily he or she enjoys being with the
nonresidential parent.
Child escaping conflict
Finally, there is a common psychological mechanism—cognitive dissonance—
through which the child’s affections can become polarized. Specifically, the
child’s intense like of one parent and dislike of the other becomes his or her
way of resolving the psychological tension that he or she experiences. For exam-
ple, if the mother and father have been actively and visibly fighting with each
other, the child experiences cognitive dissonance when trying to have affection for
both of them at the same time. The child is unable to reconcile two dissonant
thoughts, ‘‘My mother is right’’ and ‘‘My father is right.’’ The dissonance creates a
tension in the child’s mind, which is resolved by believing that he or she loves one
parent and hates the other.
Gardner has used the term ‘‘parental alienation syndrome’’ for some of these
cases, specifically, cases in which one parent has consciously or unconsciously
induced the child to reject the other parent. He has offered some suggestions for
how parental alienation can be identified [60] and treated [62].
Common scenarios
Two competent parents
After conducting a custody evaluation, perhaps the most common result is to
find two parents who are competent and nurturing in their own ways. That is,
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804 795
either of the parents would be a more-than-adequate custodial parent. If that is the
case, the evaluator can list the various factors mentioned previously—and others
that might be pertinent—and indicate which ones favor the mother and which
ones favor the father. The evaluator also can indicate the significance or weight
attached to each factor. By presenting the data in this way, the evaluator and
the judge can tally up the list and determine whether one parent is preferred over
the other.
Two deficient parents
In some custody disputes, the evaluator may find that neither parent has the
skills, attitudes, and ego strength to be fully satisfactory. In those situations, the
evaluator must be satisfied with ‘‘the least detrimental alternative’’ [21,22]. If
the evaluator is concerned about the parents’ abilities, it also may be an opportu-
nity to be creative and offer additional suggestions that might benefit the children.
For instance, supportive therapy, parenting classes, or ongoing mediation be-
tween the parents might be helpful. The evaluator might recommend some con-
tinuing involvement by a capable relative or continuing supervision by a social
service agency.
One competent, one deficient parent
Arriving at a conclusion in this kind of situation seems easier because the
evaluator can recommend that the competent parent have custody of the child.
The evaluator can make specific suggestions designed to help the noncustodial
parent become more capable, however. The evaluator also should discuss whether
it is important for the child to continue to have a good relationship with both
parents or whether one of the parents is so disturbed that he or she should not
have contact with the child.
Less common scenarios
Parent versus stepparent
Consider the situation in which a girl was raised from infancy by a mother and
a stepfather. At age 10, the mother died suddenly and a custody dispute ensued
between the biologic father, who had not seen the child in years, and the
stepfather. In that case a compromise was achieved in which the girl made a
gradual transition from living with the stepfather to living with the father, and she
was allowed to have some continuing contact with the stepfather.
Homosexuality
In some states (eg, California and New York) it is common for male homo-
sexuals and lesbians to have custody of their children, but it is less usual in other
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804796
parts of the country. A custody evaluation that involves a homosexual parent
should be based on objective data and not on stereotypes. The professional
literature regarding this issue indicates that homosexuals can provide healthy,
nurturing homes, although the children may be affected by social stigmatization
in the community [63 – 65].
Masked, reverse custody dispute
Two parents, both successful professionals, divorced and agreed to joint
custody and arranged for the two adolescent children to alternate living in the
two households on a week-to-week basis. The parents stated that they worked out
that arrangement so that the children would have the opportunity to spend time
with both of them. Neither parent was willing to compromise his or her career to
be a more consistent parent, however. The teenagers said that they would be
happy living with either the mother or the father but hated going back and forth
every week.
Dispute over religious upbringing
Strictly speaking, each parent has the legal right to take his or her child to
whatever religious activity the parent desires when the child is in that parent’s
household. In some cases, both parents want to enroll the child in religious
education and promote actively and assertively their respective religious beliefs.
Because some religious beliefs profoundly contradict each other (one religion
versus another; one sect versus another; religious belief versus atheism), the child
may become mentally confused by incompatible dogmas and emotionally
disturbed by intense loyalty conflicts. The evaluator should advise the parents
not to subject the child to this kind of experience. If the parents cannot negotiate a
compromise, probably the custodial or primary residential parent should be in
charge of the child’s religious upbringing.
Dispute over relocation
Americans are mobile, and frequently one or the other of divorced parents
moves some distance from their original home, which may create a problem for
the noncustodial parent to exercise visitation. These cases involve conflict among
three competing interests: the right of the custodial parent to move, the right of
the noncustodial parent to have visitation, and the right of the child to have a
good relationship with both parents and stability in his or her life. Legislators,
judges, and mental health evaluators have widely differing opinions on how to
deal with these situations. The National Interdisciplinary Colloquium on Child
Custody Law [26] made the following recommendations regarding relocation
disagreements: that there be a ‘‘mild presumption’’ favoring the custodial parent’s
choice, that the custodial parent be allowed to relocate if he or she guarantees, at
his or her expense, the same visitation for the other parent as was previously al-
lowed, and that the custodial parent be allowed to relocate to accept a significantly
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804 797
enhanced employment position or because of an out-of-state remarriage. Because
of deep ties to friends, relatives, or school, there may be times when it is in the
child’s interests to transfer custody to the parent who stays in the original com-
munity. For example, an adolescent may want to continue in the same high school
rather than move away with the custodial parent.
Dispute over frozen embryos
In a Tennessee case (Davis versus Davis, 1990) [66], a married couple arranged
for in vitro fertilization of several of the wife’s eggs by the husband’s sperm. The
fertilized eggs were frozen for later use. The couple divorced and each of them
wanted control over the embryos. The Court of Appeals created a simple solution
to this kind of case: the embryos should be considered joint property and nothing
could be done with them unless both parties agreed.
Grandparent visitation
In recent years courts have considered whether grandparents have the right to
visit their grandchildren, even without the agreement of the children’s parents
[67]. Herman [68] suggested that psychiatric experts be asked to make recom-
mendations regarding grandparent visitation after considering the potential pros
and cons (ie, the possible benefit to the child on the one hand and the possible
aggravation of family conflict on the other). Typically, that issue would arise in
cases that already have come to the attention of the court, such as a custody or
visitation dispute between the parents. In a recent ruling (Troxel versus Granville)
[69], the United States Supreme Court concluded that the Constitution protects
the right of parents to ‘‘establish a home and bring up their children.’’ That means
that in an intact family, grandparents are not able to ask the court to override the
parents’ refusal to allow visitation.
Parental kidnapping
One of the tragic outcomes of child custody disputes is that one of the parents
may kidnap the child [68]. This may occur if one of the parents concludes that his
or her own circumstances are above the law or if he or she believes the child may
be in danger if allowed to visit the other parent. A parent intent on abducting a
child may be assisted by an underground network. Parents who desire to bring
back an abducted child have been known to hire private commando units. Federal
laws (the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping
Prevention Act) and an international agreement (the International Child Abduc-
tion Remedies Act) provide procedures and sanctions to address some aspects of
this issue. These laws provide that the ensuing custody trial should take place in
the location where the child habitually resided before the abduction. A more
detailed discussion of this topic can be found in the article by Johnston elsewhere
in this issue.
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804798
Possible outcomes of custody disputes
Sole custody
With sole custody, the child usually lives primarily with the custodial parent
and has visitation with the noncustodial parent. This has been the most common
arrangement and usually has resulted in the mother having custody. In most
instances, the child has regular, predictable visitation with the noncustodial par-
ent. In some cases, the visitation is limited or supervised if the court finds that
the noncustodial parent may be irresponsible (ie, engages in drinking and driving)
or dangerous to the child. The evaluator may recommend sole custody if the
parents are so angry at each other that they are not able to collaborate in raising
the child. Sole custody also is appropriate if one parent is clearly competent and
the second parent is significantly impaired and would not be reliable in caretaking
activities.
Split custody
Split custody means that the children are divided between the parents rather
than primarily living in the same household. It is generally considered advan-
tageous to keep siblings together, mainly because children of divorce feel threat-
ened and insecure and they derive support and consistency from each other. If the
brothers and sisters are living together, they have the sense that at least part of the
family is still in one piece. In other circumstances, the evaluator may recommend
split custody if it seems advantageous to separate the siblings. For instance, if
divorcing parents have three children—a preadolescent boy and two baby girls—it
might work out best for the father to have custody of the boy and the mother to
have custody of the girls. When siblings live primarily in different households,
visitation can be arranged so that they are together much of the time. Every-other-
weekend visitation, for example, can be scheduled in such a way that the siblings
are always together every weekend.
Joint legal custody
In joint legal custody both parents have equal rights and responsibilities
regarding issues such as the child’s education, medical care, and religious up-
bringing [37,38,40]. In joint legal custody, neither parent’s rights are superior.
When parents have joint legal custody, the child usually lives primarily in one
household and has visitation at the other one. The joint custody order may
include language to the effect that if the parties cannot agree on any particular
issue, one party (usually the parent with actual physical custody) has the final and
exclusive decision on that issue. The evaluator may recommend joint legal cus-
tody if the parents are able to communicate with each other and are willing to
take each other’s opinions into consideration. Joint legal custody is not an ap-
propriate recommendation if the parents seem incapable of cooperating with each
other [70].
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804 799
Co-parenting
Some states (eg, Colorado, Tennessee, and Washington) have changed their
laws related to divorce and child custody such that parents are encouraged or
perhaps required to negotiate between themselves and develop elaborate, detailed
parenting plans. These plans define the child’s schedule for living with each
parent, decide which parent makes decisions regarding education, medical care,
and other issues, and determine which parent pays for medical care and
education [71]. These plans can be highly individualized. For instance, the
parenting plan might say that the mother makes all decisions regarding medical
care, that the father makes all decisions regarding religion, and that both parents
together make all decisions regarding education. Parenting plans do not use terms
such as ‘‘custody’’ or ‘‘visitation’’ but simply refer to the mother’s and father’s
‘‘parenting time.’’
Inevitably there are times when parents disagree, including those who have joint
legal custody or have a co-parenting arrangement. Hopefully the parents are able to
work out most disagreements between themselves or, perhaps, with the help of a
therapist whom they both trust. If that fails, the disagreeing parents may need to
turn to a formal process of mediation (in which a neutral third party helps the
parents settle their differences through negotiation and compromise) or arbitration
(in which a neutral third party hears both sides and makes decisions for them).
The written report
The evaluator should be aware that the written report is seen by several people,
including readers who may attach undue significance to isolated sentences and
phrases. The best approach is to make the report detailed enough so that the reader
understands fully the methodology that was followed and the basis for the
conclusions and recommendations but not so detailed as to include every datum
that was collected. The outline for a typical report includes the following headings:
Identifying information: Names and birth dates of the children and the
contesting parties, who are usually the parents.
Referral information: A brief chronology of the marriage, a statement of the
current status of the children’s custody and visitation, and an excerpt from
the court order that authorizes the evaluation. There should be a statement about
the circumstances of the referral and the specific purpose of the evaluation.
Procedure for the evaluation: A list of the various meetings that were held, the
psychological tests used, and the outside information that was collected.
Observations: Information that contains a separate section for each family
member. Each parent is discussed individually, with a summary of that person’s
strengths, weaknesses, personality traits, and significant medical and psychiatric
problems and whether these factors have a bearing on the person’s ability to
be a good parent. Each child also is discussed individually, with a summary of
strengths and weaknesses, identification of any psychiatric disorder, and a com-
ment about how the child is coping with the parents’ divorce. The report also
W. Bernet / Child Adolesc Psychiatric Clin N Am 11 (2002) 781–804800
should address the child’s attachment to each parent, whether the child has a
preference regarding custody and the reasons for the preference, and whether the
child seems unduly influenced by one of the parents.
Conclusions: A list of specific statements that the evaluator believes are
supported by data (ie, the observations discussed previously). For instance, the
evaluator might conclude that one parent has had a major mental illness in the
past that is likely to be a problem again in the future, that a parent has personality
traits or a personality disorder that affects his or her parenting abilities, or that the
children are uniformly attached and bonded to one parent more than the other.
Recommendations: This section should follow logically from the conclusions.
The evaluator may make recommendations regarding the custody of the children,
the visitation schedule, whether the visitation should be supervised, whether
any member of the family should be in psychotherapy, whether the parents
should attend parenting classes, and other issues that are important in this par-
ticular evaluation.
Summary
Because divorce is so common, it is important for our society to find ways to
minimize the psychological trauma that is experienced by children of divorced
parents. Ideally, divorcing parents would not fight so much over the children, in
front of the children, and through the children. When disputes do arise regarding
custody, visitation, and parenting plans, mental health professionals can assist
the judges who make the final decisions by performing competent custody eval-
uations. These evaluations should be conducted in a systematic manner, should
consider several critical factors in an unbiased manner, and should result in rec-
ommendations that promote the best interests of the children. In most cases, the
goal is for each child to have strong, healthy relationships with both parents. After
conducting an evaluation, it is usually possible to make recommendations re-
garding custody, parenting arrangements, and forms of counseling and therapy that
should be helpful to the family members. It is important to communicate these
recommendations in an articulate manner, whether verbally or in the written report.
Acknowledgments
The author appreciates the helpful comments and suggestions made by
Professor Andrew Shookhoff, Vanderbilt University Law School, and James S.
Walker, PhD, Vanderbilt Forensic Psychiatry.
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