If Utilizing A Custody Evaluation, Do So With Your Eyes Wide Open

In her article The Place For Custody Evaluations In Family Peacemaking that was published in the July 15, 2015 edition of Family Court Review, Mary Elizabeth Lund describes the primary purpose of custody evaluations as follows:

“The primary purpose of custody evaluations is to provide objective, neutral information and expert opinions to the court when there are allegations of physical or emotional harm to the child.”

Among other things, this requires that custody evaluators be free of bias, to the extent possible. Meanwhile, I recently learned that some organizations of child custody evaluators carefully redact all attorneys names from any paperwork and documents the custody evaluators receive in any given case.

They do so in an effort to “maintain an objective, unbiased perspective so that they can protect the best interests of the children involved.” You see, there is “a compelling body of research that shows when a child custody evaluator likes or dislikes a particular attorney, he or she could end up being unconsciously biased for or against a particular parent.

Realistically, it’s impossible for any human being to be bias free. We all have personal biases, beliefs, assumptions and values. The question is how much our lack of self-awareness is skewing our perception of things.

Considering the “compelling body of research,” there’s no doubt that carefully redacting all attorneys names from any paperwork and documents the custody evaluators receive in any given case eliminates bias with regard to that particular issue.

However, such redactions merely eliminate one of an infinite number of ways in which bias will come through. The greater concern, from my perspective, involves that “compelling body of research.” While I realize it involves bias for or against particular attorneys and how that impacts the outcome of custody evaluations, there’s also “a compelling body of research” of any number of other biases custody evaluators may have and how they impact the results. The bias may be in favor of mothers or fathers, for or against parents having an equal time share schedule, or what is in the “best interest of the child(ren).” I can go on and on because there are infinite sources of potential bias.

To me, the far bigger problem isn’t the fact that custody evaluators have such biases, but that they lack the emotional intelligence skills needed to keep those biases in check, to the extent humanly possible. We know this to be true because otherwise the “compelling body of research” to the contrary wouldn’t exist.

As Maya Angelou said, “ When someone shows you who they are, believe them the first time.”

What the “compelling body of research” shows is that many custody evaluators are unable or unwilling to keep their biases in check either because they lack the skills to do so or for some other reasons. Eliminating one possible source of such bias doesn’t solve the bigger problem. If they can’t keep their bias in check with regard to their feelings toward the attorneys involved, is it reasonable to expect that they can keep their other biases in check?

The ultimate question is whether such people should even be doing custody evaluations once such information comes to light.

This isn’t to say that such custody evaluators can’t develop the skills needed to keep their biases in check. However, if training and supervision had been found to solve the problem, why the need to redact the identity of the attorneys from custody evaluators?

Again, this isn’t to say it isn’t prudent to eliminate possible sources of bias, irrespective.

Bias aside, consider the following statement Lund made in the above-referenced article:

“Attorneys, other mental health experts, or the parents themselves can question almost any opinion from a neutral evaluator, especially because there is little information about the reliability and validity of custody evaluations (Kelly & Ramsey, 2009).”

That should cause parents and their attorneys to stop and think, shouldn’t it?

Nevertheless, Lund believes that custody evaluations can be used as a means “of providing neutral information and expert opinion about custody issues when cases reach impasse.”

Of course, if we are unable to address the reality that many custody evaluators are unable or unwilling to keep their biases in check, how helpful are the evaluations in that regard?

The lack of bias reduction skills is by no means the only problem with regard to the skill sets of many custody evaluators. Consider the following from Lund’s article:

“I believe evaluators should have a background in conflict resolution and family systems theory so that they learn to present information in a way that helps parents understand each other and their conflict as a problem that has the potential to be solved. Reports can present information about how the stress of divorce may have contributed to temporary behavior problems and to exaggerate negative beliefs about each other that perpetuate conflict (Johnson & Campbell, 1988) and steps that parents can take to improve….
Many psychologists do not have specialized training in working with separated families. Information from an evaluation report may counteract what occurs in some cases, when psychotherapists themselves may have become part of the tribe that reinforces polarized positions because they often only have information from one client.”

Lund then goes on to explain how custody evaluations are misused as follows:

“In a significant number of these cases, the issue is more about conflict between the parents than actual danger to the child....
There may be increased pressure on children who will be interviewed to align with one parent and become distanced from the other parent (Johnston & Roseby, 1997). Child-focused conflict, which is the essence of a custody dispute, is one of the biggest predictors of poor adjustment for children after divorce (Cummings & Davies, 1994; Emery, 1994). Attorneys and mental health professional consultants working on custody cases should help parents carefully consider whether a custody evaluation is appropriate and take steps to reduce these ill effects....
In custody evaluations, the parties’ positions about requested physical and legal custody arrangements and the perceived faults of the other parent can become sharply focused and strengthened. The attention during the evaluation to parents’ allegations against each other and the forming of a tribe of legal and mental health professionals who show support for the parent’s position during the evaluation process, followed by the win-lose result in a litigated hearing, may further polarize parents’ negative feelings toward each other and worsen the conflict (Johnson & Campbell, 1988).”

Along those lines and since the family law system is designed as adversarial (win/lose) in nature, attorneys specifically select custody evaluators whose known biases favor their particular client. This is especially true considering the following piece of information set forth in Lund’s article:

“Johnson and Roseby (1997) reported judges’ orders are in accord with custody recommendations in about 85% of cases.”

As such, while custody evaluations may be used to settle cases out of court, the likelihood that the judge assigned to the case will accept the custody recommendations set forth in such evaluations should not be understated because it plays out in such negotiations.

Lund concludes her article as follows:

“I call for family law attorneys to develop a peacemaking mindset and skills for using custody evaluations for dispute resolution. As part of therapeutic jurisprudence, I believe all family law attorneys who work on custody cases should be formally trained in conflict resolution and have continuing education in the effects of parental conflict on children. Attorneys and mental health consultants should be working with clients to assess the need for evaluation, what kind of evaluation, ways to educate parents about good parenting and co-parenting throughout the evaluation process, and ways to help influence parents to be open to settling instead of prolonging litigation.”

For what it’s worth, the reason Lund makes such an appeal in her article is because typical family law attorneys don’t have such a mindset and lack such skills. That should cause people to wonder why family law attorneys tend not to utilize well trained and skilled mediators to assist them. It should also cause people to question why when they do use mediators, they tend to be retired judges and attorneys with little to no formal mediation training and who also haven’t develped such a mindset.

As if the information included in my 2015 article titled Parents Should Think Twice Before Engaging in a Custody Battle Over Their Children wasn’t enough to cause many parents and their attorneys to stop and think, maybe this sequel will have such an effect.

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