Child Custody Evaluation

The major focus of a child custody evaluation is to assist a court in determining the Best Interests of the Child (American Psychological Association, 2010; U.S. Dept. H.H.S., 2020). One of the challenges facing Family Courts is that the best interests of the child are defined differently across jurisdictions. This has led to a “lack of consensus as to its meaning” (Kelly, 1999, p. 377). According to Zermatten (2010). “no one knows for certain what are the best interests of a child, or a group of children” (p. 485). Kelly (1999) noted that “because the concept of best interests is rarely defined but heavily relied on, experts, attorneys, court personnel, and parents … create their own meanings” (p. 378). Kelly (1999) suggested that a child’s best interest should be defined as the “combination of factors a child needs in a custody and/or access arrangement that will sustain his or her adjustment and development” (p. 378). She further opined that “despite the changing family structure, whatever individual parental emotional and intellectual resources existed for the child should be sustained or maximized after separation” (Kelly, 1999, p. 378).

The Children’s Bureau of the U.S. Dept. of Health and Human Services (2020) reported that the most frequently cited guiding principles concerning the best interests of the child are (1) the emotional ties and relationships between a child and their parents; (2) the capacity of the parents to provide shelter, food, clothing, and medical care; (3) the mental, physical, and emotional needs of the child; (4) the mental, physical, and emotional health of the parents; and (5)the presence of abuse, neglect, or family violence. In August of 1970, the National Conference of Commissioners on Uniform State Laws approved and recommended for enactment in all states the Uniform Marriage and Divorce Act (UMDA, 1973) which outlined the following best interest of the child factors that a court should consider when determining custody:

  • The wishes of the child’s parent or parents as to his custody
  • The wishes of the child as to his custodian
  • The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest
  • The child’s adjustment to his home, school, and community
  • The mental and physical health of all individuals involved

At the end of this list, the commissioners stated that “the court shall not consider conduct of a proposed custodian that does not affect his relationship to the child” (p. 45). This often becomes an important consideration when divorcing or separated parents have raised allegations of misbehavior on the part of the other parent. Determining the best interests of the child through a custody evaluation procedure is often guided by statute. For instance, in the state of Michigan, the best interests of the child factors are codified in the Child Custody Act of 1970 under MCL 722.23. According to MCL 722.23 (1970, 2016), the “best interests of the child” involve 12 factors divided into five structures:

  • The past and present bonding and attachment between the child and his or her parents
  • The willingness and psychological, physical, and moral fitness of the parents to:
    1. Provide a custodial environment that adequately meets or exceeds the child’s developmental, attachment, emotional, psychological, and physical needs.
    2. Provide a custodial environment that is free from domestic violence.
    3. Provide a custodial environment that facilitates and encourages a close and continuing relationship between the child and other parent
  • The child’s home, school, and community record
  • The child’s reasonable preference if the Court finds the child developmentally, psychologically, socially, and emotionally competent to express a voluntary preference.
  • Any other relevant factor

Although not expressly mandated in the American Psychological Association guidelines for conducting child custody evaluations, most Courts expect an evaluator to provide a detailed analysis of how the results of the evaluation procedures affect the best interests of the child. This analysis should be explicated in a manner that suggests how each relevant statutory best interest of the child factor favors or does not favor one or both parents (Simon & Stahl, 2020). The weighting of each factor may change depending on how the facts of the case lie. For example, if one parent is unwillingly to facilitate a close and continuing relationship between the children and the other parent, then that factor may hold more weight. This is especially true if it is substantially harming the children’s bonding and attachment with the other parent. Researchers have stressed the importance of custody evaluators remaining neutral and impartial when evaluating parents and their children for issues concerning custody and access (Goldstein, 2016). Custody evaluators should also be aware of the relevant case law concerning the Constitutional dimensions surrounding family civil rights (Karst, 1980; Marcus, 2006) and a family’s right to integrity and privacy (Bohl, 1994). Parents and children have a substantive due process right to maintain close and continuing relationships with each other after the dissolution of their family (Alsager v. Polk County, 1975; Santosky v. Kramer, 1982). These rights are held in common between the children and their parents (Trivedi, 2021).

Many custody evaluations involve serious allegations of abuse, neglect, or domestic / family violence. Serious allegations may be determined by a state agency to be true, false, or undetermined. In cases where serious allegations have not been determined to be true or false, the children may develop inaccurate appraisals of their relationship with one or both parents. The scientific literature suggests that living with non-resolved allegations can cause emotional harm and may result in permanent damage to the children’s relationship with one or both parents (Trocme & Bala, 2005). The likelihood of emotional harm and permanent damage to the parent-child relationship substantially increases when a child is denied access to a non-abusive parent during an assessment of serious allegations (Trivedi, 2019). Emotionally disturbed parents may exploit the evaluation process by making knowingly false claims of abuse, neglect, parental unfitness, or domestic violence. When this occurs, professional participants may be pressured to take sides in one parent’s war to eliminate the other parent from the children’s lives. Parental warfare that is sustained without resolution is known to cause significant harm to children (Kadir et al., 2018; van Dijk et al., 2020). Evaluators should take into this consideration by evaluating any and all allegations through hypothesis testing that seeks out and weighs all evidence that favors and disfavors each allegation.

According to the scientific literature (AFCC, 2006; Bricklin, 1996; Fuhrmann & Zibbell, 2012; Rohrbaugh, 2008; Stahl, 2010; Tolle & O’Donohue, 2013), a comprehensive custody evaluation process should involve:

  • Psychological interviews of parents & children

  • Review and analysis of legal, mental health, medical, school, & family communication records

  • Psychological testing

  • In-home parent-child observation and assessment

  • Collateral interviews

  • Comparison of data obtained from interviews, testing, and observations with the relevant scientific literature and case law

  • Generation and testing of hypotheses

  • Best interests of the child factorial analysis

  • Custody evaluation report that includes recommendations  Expert testimony if needed

PsychLaw takes care to utilize this methodology when conducting child custody evaluations.