Stephen P. Herman, M.D.
Case Example 1
Elizabeth Resnick and Harvey Cramer never married but were living together when Elizabeth became preg-nant. Soon after the birth of their son, Hal, their rela-tionship deteriorated. Even though she was angry and disappointed, Elizabeth agreed to a coparenting plan with Harvey. She would have Hal for at least 3 months, with his father coming over whenever he liked. After 3 months, the infant would live with his father, with his mother visiting regularly. This plan would continue, the parents agreed, until Hal went to nursery school, at age 3. Then, the couple agreed, they would consult a child mental health expert for advice.
Things did not work out the way they expected.
It took Harvey 10 months before he was able to settle into a home of his own. There were periods of time—
sometimes 2 weeks in length—when he would not see his son at all. When he finally arrived at Elizabeth’s home to take his son, she informed him she had gone to family court and had been given temporary custody of Hal. Harvey was escorted off the property by the police.
Several months later, a family court judge appointed Dr. Smithson to perform a custody evalua-tion and to make recommendaevalua-tions regarding the best interests of the child, who was now 2 years old.
Case Example 2
Marilyn and Bruce Greene were divorcing and battling over custody of their 7-year-old daughter, Hallie. They had originally fashioned an out-of-court settlement with Marilyn getting sole custody and Bruce having extensive visitation with his daughter. Then, unexpect-edly, Marilyn received an extraordinary offer of employment in her field of meteorology—in a city 1,000 miles away. When he learned of his wife’s plans to move, Mr. Greene initiated a lawsuit seeking sole custody of Hallie. Dr. Wellington, a forensic child and
adolescent psychiatrist, was appointed by the court “to conduct a full evaluation as to the best interests of the minor child, Hallie Greene, specifically as they relate to custody and visitation and to prepare a report for the court with any and all pertinent recommendations.”
Case Example 3
A mother of seven children, receiving state assistance and involved in an abusive relationship with the father of six of the children, was addicted to crack cocaine.
Over a period of 8 months, she purposely starved and physically abused her youngest child, 3-year-old Cathy. Eventually, Cathy was found dead in her crib, and her mother pleaded guilty to homicide. The maternal grandmother petitioned the city to become the kinship foster mother for the surviving six chil-dren, ranging in age from 4 to 15 years.
The city’s child protective services agency was against placement with the grandmother. It believed that the grandmother had known about the starvation of the deceased child but had done nothing about it.
She was never charged. The grandmother visited the children regularly. They repeatedly expressed their unanimous desire to live with their grandmother, with whom they had been involved since each of them had been born.
The family court appointed Dr. Baird to perform an impartial evaluation in order to recommend a placement plan in the best interests of the children.
LEGAL ISSUES Child Custody
Evolution of Judicial Presumptions
Child custody disputes have always reflected societal views of the family and the specialized roles of mothers
and fathers (Derdeyn 1976). As noted in Chapter 1,
“History of Child and Adolescent Forensic Psychiatry,”
the principles governing child custody decisions have undergone many changes and have gradually shifted from being parent-centered to child-centered. Courts now examine custody disputes on a more individualized basis in order to determine the needs of each child. This best interests presumption is the guiding principle in deciding custody disputes (Weithorn 1987). All states adhere to this presumption, explicated in the 1966 landmark case from Iowa, Painter v. Bannister. The clinician should be aware of the exact wording of local statutes governing custody.
Types of Custody Arrangements
Custody disputes can arise when divorcing parents are not able to agree on residential and parenting arrange-ments for their children or when one parent uses the issue as a wedge against an unfavorable divorce outcome.
Regardless of parental motivation, the types of custody are usually sole or joint. In sole custody, one parent has the legal authorization to make all major decisions regard-ing the growth and development of the child. The non-custodial parent’s rights are not terminated but major decision-making powers are. (Sometimes, however, a ter-mination of parental rights case may occur in connection with an ongoing custody or child placement case. In 1982, the U.S. Supreme Court held in the landmark case Santosky v. Kramer that in such cases of termination, the constitutionally required burden of proof shall be clear and convincing evidence.)
In a joint custody arrangement, the precise definition depends on what the parties work out. It does not auto-matically mean that a child lives with each parent half of the time. It does mean, however, that both parents have the legal right and responsibility to share in their child’s growth and development (Tibbits-Kleber et al. 1987).
Joint custody, heralded by some as a panacea for the ills of custody disputes, can be successful in certain circum-stances, if both parents are able to set aside their anger and frustration with each other, tolerate each other’s dif-fering parenting styles, and communicate frequently with relative comfort (Steinman 1981, 1985). However, such a postdivorce situation is unusual for many parents and might be impossible for most. What seems to be impor-tant psychologically for children of divorce is the ongoing relationship between the parents and between the par-ents and the children, rather than the legal custody arrangement (Atwell et al. 1984; Derdeyn and Scott 1984; Pruett and Hoganbruen 1998; Wallerstein and Johnston 1990). In addition, recent research findings
suggest that the problems seen in children of divorce may, in fact, primarily relate to the extent of the troubled marriages of their parents prior to the divorce, rather than the divorce itself (Kelly 2000). Such children may have serious psychological problems following their par-ents’ divorce because of high levels of conflict, including domestic violence and verbal abuse, while the family was still “intact.”
Visitation
Custody disputes often include determinations about visitation. Sometimes, in fact, the expert witness is eval-uating a visitation dispute, rather than an argument over custody (Benedek and Schetky 1985). Disorders of visi-tation arise when parents disagree about implementing a court-ordered visitation arrangement, when parents accuse each other of sabotaging a visitation schedule, when parents are unable to formulate a workable visita-tion arrangement, or when one parent maintains that the child is reluctant to visit the other parent (Levy 1982). It has been argued that the sole custodial parent should control visitation arrangements in the interests of reduc-ing the child’s anxiety and avoidreduc-ing further court inter-ference in this family issue (Goldstein et al. 1973). How-ever, courts do become involved in visitation disputes that are part of (or separate from) a custody dispute.
Visitation crises during or after divorce may occur when children are used as “messengers” by a parent, when one parent begins a new relationship, when a par-ent radically changes a lifestyle, when there is respar-entmpar-ent over money, or when one or both parents exhibit signifi-cant psychopathology. Visitation problems may be unlikely when both parents easily agree on which parent ought to be the custodial parent, when there are few dis-putes over parenting, and when parents work hard with attorneys and mental health professionals to minimize conflict (Hodges 1986).
Two areas of controversy surrounding visitation prob-lems include allegations of sexual abuse and visitation schedules when infants are involved. The evaluation of sexual abuse allegations will be discussed elsewhere in this volume; however, there is a perception that they have increased in the last decade and have become a wedge designed to reduce parental access during or fol-lowing a divorce. Yet it is probable that only a small pro-portion of contested custody and visitation cases involve sexual abuse allegations (Thoennes and Tjaden 1990).
Still, visitation is often suspended entirely with the accused parent until he or she is exonerated. This could last over a year.
When infants are involved, courts may rely heavily on the recommendations of mental health professionals.
However, there are virtually no clear-cut guidelines in the behavioral sciences literature to guide clinicians in their recommendations to the court. Although a custodial par-ent may feel otherwise, there are no data supporting the notion that visitation involving infants, toddlers, or pre-schoolers is in and of itself harmful to the child or need be severely restricted. Each case will have to be evaluated on its own merits, because the issue of infant overnight visitation remains controversial (Levy 1998). Obviously, the following factors must be taken into account: paren-tal conflict, parenparen-tal inadequacy or irresponsibility, signif-icant geographic distance between parents, severe mental illness in a parent, and an abusing parent.
Mediation
Like joint custody, mediation has been heralded by some as an important alternative to the adversarial system. By the 1980s, as most states adopted no-fault divorce laws, mediation’s popularity grew. In several states, including California, Maine, and New Mexico, mediation is man-dated by the court before custody litigation begins. Mary-land courts have also adopted this process, except in cases in which a good-faith allegation of sexual or physical abuse has been made. Connecticut requires all custody disputes to go through a pretrial mediation lasting one full day, held at the same courthouse where the actual trial would be held if the mediation is not successful in settling the case. The mediators are two experienced practitioners—a matrimonial lawyer and a mental health professional—of opposite sex. The success rate of these one-day “marathon” sessions in settling the custody dis-pute is over 50% (B. Carey, Middletown, CT, Superior Court, personal communication, June 6, 2001). Media-tion programs may differ throughout the country in terms of the professional backgrounds of the mediators, the number of sessions, the inclusion or exclusion of chil-dren’s direct participation in the process, and the pres-ence or abspres-ence of lawyers, members of the clergy, accountants, or other related professionals. Thus there is no single, clear-cut definition of mediation when applied to resolving custody disputes (Miller and Veltkamp 1987).
Proponents cite advantages of mediation: parents avoid litigation and the necessity for a court to direct their behavior; the process is more personalized, with more attention directed to the unique characteristics of the family; parents take an active role in deciding their family’s fate; and there is greater likelihood of long-term compliance.
In one study, nearly a decade after custody media-tion, noncustodial parents reported more frequent
cur-rent contact with their children and greater involvement in current decisions about them. Parents who had used mediation reported more frequent communication about the children since resolution of the dispute (Dillon and Emery 1996).
Critics of mediation argue: there is too wide a variety of backgrounds and skills in mediators; there are no stan-dards for what constitutes adequate mediation in custody disputes; failed mediation can lead to even more acri-mony once the parties enter the judicial system; and mediation may lead to an imbalance of power that could favor men, who seem to mediate differently from women. It is thought by some that in these situations, a man’s verbalizations relate more to gaining power and the upper hand, whereas a woman’s may be more about feel-ings and compromise.
A 1-year follow-up study of parents who used medi-ation reported differences in levels of satisfaction between fathers and mothers. In this study, fathers involved in mediation were substantially more satisfied and were in greater compliance with child support orders than were fathers who had not used mediation. However, mothers appeared to be less satisfied (Emery et al. 1994).
Mediation may work if couples are motivated to be child-centered in their custody negotiations and both parents are able to trust and work with the mediator or comediators. During or following the custody evaluation performed by the court-appointed expert, the process may evolve into mediation or may lead to the parents entering mediation with someone else. In this way the custody evaluation may serve a therapeutic purpose and may help the parents concentrate their energies toward a settlement and away from further litigation.
Special Issues
Child custody evaluations are frequently complicated by special issues presenting additional challenges to the expert witness (Herman 1990). Many of these issues reflect current social dilemmas and raise ethical as well as clinical questions. These include homosexual parenting and the impact of AIDS (Allen and Burrell 1996; Bozett 1987; Kleber et al. 1986; Mason 1998); grandparents’
and stepparents’ rights (Stanton 1998); mentally ill par-ents and parental kidnapping (Long et al. 1991; Schetky and Haller 1983); allegations of sexual, physical, and spousal abuse (Green 1986; Lieberman and Van Horn 1998); controversies arising from advances in reproduc-tive technology, such as surrogate parenting, oocyte dona-tion, artificial inseminadona-tion, and in vitro fertilization (Kermani 1992); and issues related to parental reloca-tion. The evaluating mental health professional faces the
dual responsibilities of performing a competent and fair clinical evaluation and communicating to the court how the special issue affects the particular family.
Homosexual parents. The expert evaluating a custody dispute in which one parent is homosexual will need to review the current literature on children of homosexuals in order to best advise the court. This highly emotional topic is handled quite differently in legal jurisdictions across the United States. Some states have equated homosexuality with parental unfitness. New Hampshire law bars homosexuals from serving as foster or adoptive parents (Opinion of the Justices 1987). In Missouri, the court of appeals denied custody to a lesbian mother and then restricted visitation on the basis of the mother’s sexual orientation (S.E.G. v. R.A.G. 1987). But in New York State, for example, a lesbian couple sought and were granted legal recognition of their status as parents of a 6-year-old boy, in what was the first legal recognition of lesbian coparenting in the state (In the Matter of the Adoption of a Child Whose First Name Is Evan 1992).
Studies on homosexual parenting appear to suggest no significant differences in the psychological develop-ment and gender identity of their children, as compared with families with heterosexual parents. In one study of children conceived via donor insemination and raised by either heterosexual or homosexual parents, ongoing adjustment was unrelated to their parents’ sexual orien-tation (Chan et al. 1998). A meta-analysis of research findings has failed to identify differences between het-erosexual and homosexual parents regarding parenting styles, emotional adjustment, and sexual orientation of children (Allen and Burrell 1996). Less is known about the families of gay fathers, although studies suggest they are as nurturing and supportive of their children as are heterosexual fathers. Children of gay fathers, however, may be distressed at some point in their development about their father’s homosexuality (Bozett 1987).
Parental kidnapping. The expert should know about the impact on the child of parental kidnapping, if that has occurred (Cole and Bradford 1992). Schetky and Haller (1983) have noted the agonizing conflicts undergone by children kidnapped by their disturbed and/or desperate parents caught up in custody litigation as well as legal attempts to deal with this issue. The expert evaluating such a case should be familiar with state and national laws that apply, along with the 1980 Hague Convention on the Civil Aspects of International Child Abduction, to which the United States is a signatory.
Grandparents’ rights and other third-party rights.
The expert should be aware of the legal and clinical
ram-ifications of grandparents, stepparents, and other third parties seeking visitation rights or custody (Stanton 1998). State laws vary in their permissiveness regarding such visitation and custody. In June 2000, in what is cer-tain to be a landmark ruling, the U.S. Supreme Court held in Troxel v. Granville that a Washington state law was applied unconstitutionally as it related to visitation in a particular family’s case. The law allowed “any person”
to petition for visitation rights “at any time.” The law had authorized state superior courts to grant such rights whenever it was deemed to be in the child’s best interest.
In a decision delivered by Justice O’Connor and joined by the Chief Justice and Justices Ginsburg and Breyer, along with Justices Souter and Thomas concur-ring in separate statements, the Court discussed the pro-tection afforded by the Fourteenth Amendment against any state depriving “any person of life, liberty, or prop-erty, without due process of law.” The court held: “The liberty interest at issue in this case—the interest of par-ents in the care, custody, and control of their children—
is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Justice O’Connor criticized Washington State’s “breathtakingly broad” statute, which would disregard a fit custodial parent’s decisions regard-ing visitation and would instead substitute the determi-nation of a judge. The Court did not, however, declare state laws allowing for grandparent visitation (in all 50 states) to be unconstitutional. Justice O’Connor wrote:
“We do not, and need not, define today the precise scope of the parental due process right in the visitation con-text.”
Reproductive technology. In areas on the very frontier of reproductive technology, mental health professionals and legal experts alike will struggle and agonize over pro-foundly complex questions. Here, all too often, social practices and medical decision making outstrip statutes and coherent and predictable case law.
Relocation cases. A common special issue arising with greater frequency since the end of the twentieth century is the issue of parental relocation. This additional factor is an outgrowth of three demographic phenomena: our nation’s high divorce rate, corporate downsizing, and our increasingly mobile society. Typically, a parent seeking custody also wishes to move out of the local area because of an important employment opportunity. In a landmark case in New York State, that state’s highest court, the New York Court of Appeals, addressed this issue (Tropea v. Tropea 1996). The court adopted a best interests approach in its decision: “[E]ach relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with
pre-dominant emphasis being placed on what outcome is most likely to serve the best interests of the child” (Tro-pea v. Tro(Tro-pea 1996).
In such relocation cases, the expert must examine a number of factors, such as how the particular child would most likely cope with the loss of regular contact with the parent left behind, the psychological impact of cutting ties with the home community and establishing new ones elsewhere, whether the custodial parent would facilitate reasonable opportunities for the child to visit with the other parent, and the parent’s motivation for wanting to move away (Herman 1999).
Parents with criminal convictions. Another compli-cating issue involves a foster or pre-adoptive parent found to have a criminal conviction. The expert psychia-trist may be asked to evaluate the relevancy of such a conviction on parenting and the best interests of the child. A new law in New York State mandated that the discovery of a prior criminal conviction in a foster parent is grounds for immediate removal of foster children—no matter how long they have lived in the home or how appropriate the placement has been (NY Social Services Law 1999). This law has been found unconstitutional in several New York courts.
Whatever the special issue might be, the evaluating clinician considers that issue in terms of how it affects the child and the parent-child relationship. The question then becomes not that a parent has a history of psychiat-ric illness, for example, but rather, what is the impact of the illness on this particular child and the relationship with the child? In this way, the expert can put an issue in proper perspective and possibly defuse what might oth-erwise be a false issue serving one side’s legal strategy.