Does peer review have a place in child custody evaluations? - Special Report: Protecting Children's Rights

Children Today, May-June, 1989 by Stephen P. Herman, Alan M. Levy

Does Peer Review Have A Place in Child Custody Evaluations?

With the divorce rate in the United States close to 50 percent of marriages, about one million children per year are experiencing their parents' separation and subsequent divorce. Custody disputes and other litigation surrounding these children are now commonplace in our courts, approaching 15 percent of divorces.(1) Judges are turning to child psychiatrists and psychologists for help in evaluating these cases, and lawyers are hiring such experts in support of their client's position. Unfortunately, many of these evaluations and reports are substandard and do a disservice to both the families and the mental health profession.

Guidelines do exist for performing balanced, comprehensive, professional custody evaluations and for providing well-written reports. The Task Force on Clinical Assessment in Child Custody has published very specific recommendations.(2) This pamphlet, like the Diagnostic and Statistical Manual of Mental Disorders (DSM-IIIR), is often used by lawyers in the courtroom in both the direct and cross-examination of the expert witness. Others have written of specific steps to be taken by the clinician when doing such evaluations.(3)

Yet, in spite of such guidelines, supposedly expert witnesses submit reports that fall short of these recommendations. This article reviews several such cases which came to our attention because we were called upon by attorneys to review, report and, in some cases, testify on evaluations already submitted to the courts by other psychiatrists. We noticed certain patterns of evaluating and reporting which most likely represent common errors made by clinicians acting as court-appointed experts. Participating as a peer reviewer in these cases can enlighten the court and benefit families. There are certain caveats, however, for such peer reviewers; these are discussed following the case examples.

Case No. 1

One report focused quite appropriately upon parenting skills and the observed parent-child interactions. However, the report was directed toward finding one parent fit and the other unfit, with the evaluator pointing out the "lack of perfection" of one parent and ascribing certain symptoms in the child to the parent's "imperfection." Here, the evaluator was acting as a fact-finder, accepting what only one parent said about the child's symptoms and negating the statements of the other parent.

When a clinician begins an evaluation with only one option in mind--that of single-parent custody--he automatically places himself in a position of having to find a "good" parent and a "bad" one. If other options are considered, such as shared custody or joint custody, then the pressure to polarize might disappear. Any existing psychopathology could be evaluated in its true context and not used to automatically label a parent as unfit.

In this case, for example, a psychological test report on the father indicated that he was narcissistic and egocentric and used projection and denial as defenses. The report had contained mostly history and the father's view of past events. His affect was said to be "inappropriately angry"; the clinician apparently forgot that he was justifiably worried about losing his son.

The mental status examination of the mother consisted mostly of biographical data and her own views of the father and son. While a psychological report quoted in this evaluation stated "no mental disorder present," it noted a mixture of "hysteroid and obsessive" features in the mother as well as "cognitive functioning overly influenced by emotional factors." The report concluded by mentioning depressive features but offered no DSM-III diagnosis.

This psychiatrist relied heavily upon the psychological testing. Somehow, the father qualified for a diagnosis but the mother did not. In addition, both mental status reports contained history and allegations. It would seem that the examiner had chosen to believe the mother and not the father.

The evaluator recommended that joint custody be terminated and that the mother be given sole custody. No reason for this was given. Neither did the examiner present evidence that this joint custody arrangement was detrimental to the child, or explain how this proposed sole custody arrangement would benefit the child. In short, the report's recommendations were not based upon data presented and were not adequately explained or justified.

Case No. 2

A transcontinental custody battle arose over a 7 1/2-year-old girl, who was living in New Jersey with her mother. Her father in Oregon instituted the custody case after the mother's subsequent marriage had dissolved because he was concerned about his daughter's frequent moves with the mother. The case was being tried in Oregon, and the court there appointed a child psychiatrist to perform an impartial evaluation.

The psychiatrist submitted a 29-page report, including a 6-page description of the clinical evaluation of the father and a 2-page description of the mother. It contained only generalizations about the father's goals for his daughter--no discussion of his parenting skills nor his insight, if any, into the special needs of the little girl. There was no description of the meeting which was apparently held with the father, daughter and therapist.