© 2011 Joel V. Klass, M.D.
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Child Custody Evaluations
Ten Signs of Questionable Practices
by Joel V. Klass, M.D. and Joanna L. Peros, Psy.D., R.N.
The purpose of listing the following 10 questionable characteristics
found in custody evaluations is to help eliminate commonly found inadequacies
and biases influencing custody determinations. The listed unfair practices
and subjective distortions of objective custody criteria are culled from
recent literature and from reviewing 30 years of doing custody evaluations.
The list of 10 basically unacceptable assessment practices also comes from
hearing the most commonly voiced complaints by attorneys, judges, parents,
and custody experts about custody evaluations.
1. Judgmental attitude by suggesting punitive and unreasonable consequences
for a parent not abiding by the evaluator's arbitrary edicts.
"If either parent makes any negative comment about the other parent,
the psychologist, or the guardian, then that parent will lose custody."
This outlandish threat punishes the children for a human foible. This is
particularly true when young children are removed from a primary caretaker
should that parent voice an understandable and even justified anger at
the other parent. Most parents in a contested custody dispute will occasionally
make a negative comment about the other parent. Although obviously not
best for the children to hear, almost all children know when their parents
are not getting along. To compel a parent by threat to talk only positively
about the other parent is to promote hypocrisy. This fake attitude by a
parent also breeds mistrust in a child who knows the truth. Children do
best when they know their parents are human, fallible, but also trustworthy.
It is reasonable and customary to remind parents to make their best effort
to not voice hostility towards the other parent in front of the children
but to drastically threaten a parent for any transgression is unacceptable.
The occasional slip by a parent in the affirmative obligation to promote
the relationship between the child and the other parent is far different
than a campaign of disparagement and designed interference with that relationship.
Most heinous is the direct or implied threat by an evaluator that the parent
had better comply with every demand of the evaluator because the evaluator
will determine who is going to "win" in the custody dispute.
Parents have the right to use their own judgment to protect themselves
and their children from unreasonable demands. Parents should know that
the judge and not an evaluator makes the final determination on custody
issues. Both parents and judges have to keep in mind that evaluators are
also human and can have their own personality quirks and biases, even when
court-appointed, and that not all evaluators are wise or even reasonable.
It should be assumed that evaluators, even with the best intentions, might
still have a level of bias by fact of being human.
2. Minimizing a favored parent's misbehavior and embellishing or exaggerating
an unfavored parent's misdeeds.
"The mother had only one DUI but the father is known to drink a
can of beer at every dinner."
Even supposedly neutral court-appointed
evaluators can develop a quick dislike for one parent and clear preference
for the other parent. The reasons for this favoritism are many. Usually
when there is an immediate attitude of preference by an evaluator for one
parent over the other it stems from psychological sources in the evaluator's
past history. Evaluators are generally unaware of their own bias, as well
as the source for their bias. These biases are also more difficult to detect
when an evaluator can always find some seemingly justified basis for their
Along with the favoritism bias is the bias caused by ignoring
the effect on a parent of doing a relatively short-term assessment on such
a crucial issue as primary custody determination and parent sharing time.
To equate "how nice" a parent is for the few "under the
gun" hours that a parent is seen with that parent's real parenting
capacity is to be naive. Of course most parents are going to be putting
their best foot forward during the time of assessment and are unlikely
to show their true colors.
In contrast to this positive biasing influence,
some parents may show uncharacteristic resentment at having their parenting
qualities subject to scrutiny. For an evaluator to negatively judge a parent's
overall parenting ability because of the brief resentful attitude a parent
shows towards the evaluation process is to malign that parent. The false
negative evaluation of that parent is in this case a sign that the evaluator
has taken the parent's resentful attitude personally and allowing this
judgmental response to color what should be an objective appraisal.
way to minimize bias by both evaluators and judges is in every case to
run the whole case with the gender of the parents reversed. It is surprising
how different a case can sound once the gender of the parents is reversed.
This simple process picks up gender bias and corrects for cultural distortions
3. Using a "full battery" testing approach when the court
needs a singular question addressed.
"I used a complete battery of testing because although each one
has known limitations on validity together they can support a conclusion
much more accurately."
The psychologist evaluator may even believe
this canard of needing total psychological testing in every case. Nonetheless,
this excessive reliance on a full battery of testing is to inflict a financial
battery on parents. Such extensive psychological testing of the parents
results in excessive fees for the psychologist and burdensome expense for
parents who usually are already stressed by accumulating attorney fees.
There is no proven advantage to doing Rorschach tests, IQ tests for normally
functioning adults, Draw a Person tests, House-Tree-Person testing, Kinetic
Family Drawing tests, unstandardized computerized tests or many other tests
with unproven results. Most psychological tests are not normed on parents
undergoing the stress of custody evaluations.
To give an IQ test to an
adolescent who is making mostly A grades in honors courses is totally unnecessary,
and expensive. The retort some psychologists give to justify this is that
IQ tests can also be judged subjectively. This explanation is silly because
there are far more specific subjective tests available. In addition, even
most of these subjective tests have insufficient validity to be used as
the sole determinant of a child's welfare. For an evaluator to suggest
that only by doing extensive psychological testing can an issue be determined
is to distort the really more important resources available to assess crucial
Far more important than all the psychological test results are the
real life conditions under which a child thrives or fails. An experienced
unbiased teacher's observations and opinion is a reality report on how
a child functions both academically and socially. Such a teacher has hundreds
of comparisons over many years to assess how a child is doing. Whenever
a respected and experienced teacher opines that a child is not doing well,
better listen. For this reason the many hours a teacher spends with a child
in school are a very important resource for determining what is in a child's
best interest. Judges should know that psychological tests can carry a
warning that they are not to be used without clinical correlation or for
forensic purposes to determine legal issues.
Psychologists need to make
these warnings known in every report where such tests are used. Without
the court knowing the limitations and published precautions on using psychological
tests in legal cases, too much reliance on these psychological tests can
result in injustice for parents and children. When a patient in a hospital
is talking to you while their EKG machine is showing a straight line you
throw out the machine and not wheel out the patient. So it is with psychological
testing. Reality trumps all the psychological tests known. Psychiatrists
can also misuse computerized test results. Psychiatrists as well as psychologists
have been known to simply repeat the narrative spun out by some of the
computerized tests, making their report simply a repeat of the limited
validity of isolated test data. In addition, although some psychiatrists
have had excellent courses on psychological testing during their training
as a psychiatric resident, it generally does not compare with the more
extensive knowledge of the psychologist in the field of psychological testing.
Lastly, to save their time, psychology evaluators have been known to breach
standard test administration protocol by having office staff administer
the psychological tests. They justify this invalid approach by saying that
they have trained their office staff to do the testing properly or by even
defending this unacceptable practice by saying "that's how everyone
does it." The charges for this nonstandard testing are often the same
as if the psychologist had done the testing.
This is not to say that all
tests are pointless. Several have good correlations with reliability and
validity, but must always be cautiously interpreted with clinical correlation
and reality facts prevailing. An over-reliance on limited validity psychological
testing results can violate the basic civil right to have judgments based
on one's behavior and not on propensities, thoughts or feelings.
4. Incomplete assessment by not addressing the "Goodness of Fit"
Several carefully done studies have determined the importance of matching
a child's temperament with that of a parent's temperament to promote the
best interests of a child. Research has shown that temperament is inborn.
It is also been confirmed that how good a fit there is between a parent's
temperament and that of a child's temperament can make the difference between
a comfortable accomplished child and one that is anxious and inhibited.
It is not that a parent may have an unhealthy temperament. A child can
have a normal range of temperament style as well as the parent having a
normal type of temperament. It is that the two temperament styles, the
parent and the child temperament mix, needs to be propitious.
When a child
is healthy and excelling in all areas, even when their primary caretaker
parent has problems, it is the "goodness of temperament fit"
that often accounts for this success. For this reason the dictum of "if
it ain't broke, don't fix it" is worth consideration. Conversely,
even when all the testing results and assessment favor one parent but the
child does poorly in the care of that parent, a change needs to be considered.
5. Crossing boundaries and extending services outside areas of training
Psychiatrist and psychologist evaluators too often ignore the expertise
of social workers. Social workers traditionally have more experience in
doing home studies, and charge less than psychiatrists and psychologists
for doing so. Often, a court-appointed psychologist or guardian takes the
liberty of doing home studies disregarding their lack of expertise in the
field. Their reports neglect all the subtleties detected by a capable social
worker who has an eye for important details. Guardians and psychologists
rarely test whether fire alarm systems are in place and working properly,
the amount of alcohol in the home, the safety devices for firearms, and
the risks of power tools accessible to children. Social workers can note
the age appropriate books available, the programs children watch, the hour
that is thereby indicated in determining their bedtime, nutritional needs,
attention to hygiene, and appropriate car seat for the age and weight of
Similar to the attorney who is court-appointed to be a
guardian ad litem but who charges the higher fees of an attorney ad litem,
psychologist evaluators can improperly charge psychologist fees for doing
home studies that should be done by a social worker, at much less cost.
In addition, another evaluation person adds to more reliable results because
group evaluation input is generally superior to a single input.
example of questionable practices is when psychologists and non-physician
guardians opine about medication, an area outside their training. Similarly,
psychiatrists can comment about psychological test results, without their
having sufficient training to do so.
Most importantly, evaluators can make
the terrible mistake of not acknowledging the limitations on clinical judgment,
and that actuarial data and reality should always be regarded with greater
respect. Clinical opinion is the least trustworthy in determining validity
and truth. Nothing compares to actual life reality. If a child is doing
poorly with the parent that all the clinical judgments say is the better
parent, consider a change. If the child is doing well with the parent showing
inferior testing, throw out the test and stay with the arrangement where
a child is healthy and thriving happily. Evaluators have been known to
do extensive and far-reaching assessments when the court has asked for
a simple question to be addressed. Because the resulting report of the
evaluator is so lengthy, it is assumed to be more valid and worthy of the
invariably high fees that it entails.
What even the court can lose sight
about is that the parents are saddled with sometimes enormous fees for
a question that could have been answered with far less global and extensive
psychological assessment. If there is a question about which parent would
be the better one to have major time in child care during school days and
the child is found to be excelling in school under one of the parents major
care, no extensive psychological test battery is needed. Reality prevails
and speaks louder than all the psychological tests. What is too often rationalized
as a basis for doing a "test battery" is really only greed. Addressing
and charging for unasked issues is financially unfair to parents. Parents
undergoing divorce and custody issues feel compelled to accept the extensive
but unrequired investigation and testing battery because of a fear of being
seen as uncooperative and losing custody.
6. Inequality of time spent, attitude, or focus on investigating one
parent over the other parent.
Because of favoritism that can develop by an evaluator, different amounts
of time and level of investigation can occur. An evaluator can always rationalize
why they allowed one parent privileges disallowed to the other parent.
An evaluator can become friendly with one of the parents, be sympathetic
to that parent, and not confront that parent about questionable parental
practices. Likewise, an evaluator can be abrasive with a disliked parent
and then report that parent as being nasty because the parent shows a normal
reaction to the affront. This inequality can extend to the types of tests
used and the attitude presented in doing the psychological testing or investigation.
An example of this is when a psychologist disliked the mother being assessed
and insulted her several times just before she took computerized psychological
tests. The test results came back indicating that the mother was hostile.
7. Referrals, without court mandate, to a close friend, partner, spouse,
especially with pressure on the parents to do so.
Evaluators need to be cautious when making any recommendation at all
when not asked to provide one by the court. Evaluators who compel parents
under evaluation to see a specific person, usually a close friend, partner
or spouse of the evaluator is obviously exploiting their power position.
The parent understandably fears not complying with the evaluator's referral
recommendation for fear they will lose favor of the evaluator who is making
the important assessment. If a recommendation is indicated, and approved
by the court, the proper method is to provide several names and suggest
that there are others who the parent may find acceptable as well. This
allows the parent to make a decision that may importantly affect their
life and not feel they are being exploited.
8. Omitting the all important issue of love
It is shocking to see how many evaluator reports never even mention
the subject of love. To be loved for oneself, or in spite of oneself, is
one of life's greatest gifts. For a child to have the conviction that their
primary child caring parent truly loves them is a blessing. Consequently,
the issue of what arrangement in child parent custodial care can best provide
a child with feeing loved is essential. This crucial factor needs to be
carefully assessed in every custody case. This critical question includes
that how the findings and recommendations regarding custody can best encourage
both parents to provide the offspring with the greatest sense of being
loved. It is not an easy puzzle with the myriad and often conflicting factors
involved in custody disputes. However, to not address this most important
subject is to neglect what parenting during dissolution proceedings should
be most about, giving a child the feeling of being worthy of love in the
midst of parental discord.
Sadly, along with the absence of the assessment
of love is the use of psychological jargon. This "psychobabble"
often obfuscates the glaring simple facts and truths available to make
an appropriate custody determination. Reverting to using jargon can mask
the evaluator's lack of real understanding and ability to explain complex
findings in clear "kitchen english." Evaluators are obligated
to make their findings known in such a lucid way that anyone can understand
them. In addition, psychological expert evaluators must know enough about
child developmental psychology to assist the judge in understanding how
evaluation results will affect children undergoing the stress of their
Children almost routinely feel they are somehow to blame
for the parent's divorce. They do so to avoid the worst feeling, of being
helpless. If they conclude that somehow they are responsible, it gives
them hope that by just doing something differently or better, that they
can have control of the frightening dilemma of their parent's divorce.
Therefore, every evaluator needs to assess how custodial arrangements can
best encourage disputing parents to be most loving to their child. Only
in this way can evaluators serve in the best interest of the child.
9. All black and white, good versus bad; no areas of grey, room for
human foibles, recognition of TMS type behavior
Any evaluator's report that sees one parent as all good and the other
as all bad is suspect. It is just not that common to have such a clear
dichotomy in human nature. Far more realistic is a portrait of all too
human parents experiencing a tragic deterioration in their relationship,
and showing the stress of a broken family.
In the current family law contested
divorce arena, each parent may feel compelled to bring out the worst in
the other parent. This damaging dilemma cannot only distort a parent's
generally acceptable nature into a picture of evil but can also cause distress
to children exposed to the discord. It has been said that in criminal law
you see bad people at their best and in family law you see good people
at their worst. For an evaluator to not see the basic healthy nature underlying
each parent is to do injustice to both the parents and their off spring.
It is a more accurate and therapeutic attitude to describe a parent's assets
as well as the weaknesses in their character. Such supposed character flaws
may actually only be a brief lapse in self-control because of extreme duress
or threat. The "Threatened Mother" Syndrome (TMS) type behavior
may be an apt description of a parent acting abnormally because the circumstance
is abnormally threatening. The TMS is merely a mother's excessive behavioral
reaction, as is found in the animal kingdom, to a threat to the bond she
has with young offspring. Theoretically, this reaction can occur with both
genders but is seen almost exclusively in mothers. In summary, it is easier
to believe in the accuracy of an evaluator's report when there is the feeling
that the entirety of a parent's personality is captured and not just reciting
indictments in areas of poorer parenting behaviors caused by abnormal custody
10. Excessive fees for unnecessary testing, unproven assessment tools,
phone calls, prolonged assessment maneuvers, home studies, unneeded guardians,
frequent travel time charges, undocumented and vague time costs.
Money is the unspoken factor hiding in plain sight. How often is it
seen that the charges in a dissolution case is proportional not to the
complexity of the assessment factors but to the financial assets of the
divorcing party? Similarly, an evaluator can somehow expand costly yet
unnecessary services when assets are plentiful. It is not surprising how
quickly assessments and even divorce cases can resolve or settle once the
financial means are expended.
Evaluators may even mean well but somehow
find areas that need extensive exploration when plenty of assets are available.
Furthermore, some evaluators actually take an extortionist position to
suggest to parents that to not cooperate with every promoted assessment
need is to be obstructionist or defiant.
Minor areas in a person's existence
can be seen as critical in the light of a need to expand a well-paying
assessment process. For example, to spend hours interviewing parties known
to be closely related and supportive of a parent is to only get the party
line, predictable and superfluous. Similarly, to get hours of interviews
with "hostile witnesses" is also a predictable outcome. This
time waste in repeated hearsay is better spent acquiring meaningful and
reliable data in how a child functions academically in school, and socially
with peers. Pediatric records showing weight changes and histories of injury
are more objective than hearsay upon hearsay reports by interested supporters
or detractors of a parent.
In summary, it is suggested that an appraisal of how questionable an
evaluator's report is can be graded by giving 10 points for each of the
10 suspect areas listed. It is hoped that assessments get at least a passing
grade of 70% or more. We believe that a failure in custodial assessment
quality also fails in providing for the best interest of children.
Joel V. Klass. M.D.
Diplomate American Board of Psychiatry and Neurology
Diplomate American Academy of Psychoanalysis
Joanna L. Peros, PsyD., RN
Psychologist Lic. #PY 7628
About the authors: Joel V. Klass, M.D. is a Florida Board-certified psychiatrist and
psychoanalyst who completed his Adult Psychiatry Residency and Child
Fellowship training at New York University Medical Center and Bellevue Hospital.
He has been a Professor of Psychiatry at the University of Miami School of Medicine,
President of the Broward County Psychiatric Society, Chairman of the Department of
Psychiatry at Hollywood Medical Center, and Hollywood Memorial Regional Hospital.
Dr. Klass has been a court-appointed Psychiatrist for the Dade, Broward, and Palm Beach
County courts, and contributor to numerous continuing legal education programs for The
Florida Bar. Dr. Klass has evaluated over 15,000 patients in his 30-year practice of adult
and child psychiatry. Joanna L. Peros, Psy.D., R.N. is a Florida licensed psychologist.