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By Dr Deborah Wilmoth MAPS, State Forensic Mental Health Service (WA)

The dissolution of a marriage is almost always a traumatic experience for the spousal partners. However, if children are involved, there is the additional trauma for both the parents and the children regarding maintaining separate relationships with each other. Approximately 90 per cent of families are able to resolve this difficult aspect of divorce (Melton, Petrila, Poythress & Slobodin, 1987). However, for a small percentage of families, many of the problems that led to the dissolution of the marital relationship are now manifested in the decision-making for the children and how the children’s relationship with their parents will be maintained. These are the cases that end up in the Family Court system and often require the input of a single expert witness. And this is where psychologists often become involved in Family Court matters. This is complex and challenging work, and there are many pitfalls for psychologists in providing psychological evaluations in the Family Court context.

Nature of child custody evaluations

The Australian family law system requires two areas of focus in single expert witness reports: what is in the best interest of the child, and a presumption that both parents will have equal shared parental responsibility for their children (Family Law Amendment Act 2006). The legal definition of ‘in the best interest of the child’ is vague and leaves a great deal of latitude for both the Family Court and the single expert witness. There is little to no research that answers the question of what is in the best interest of the child. The American Psychological Association (APA) has developed Guidelines for Child Custody Evaluations in Divorce Proceedings (1994), which note that “the child’s interest and wellbeing are paramount” and that “the focus of the evaluation is on parenting capacity, the psychological and developmental needs of the child, and the resulting fit” (APA, 1994).

Psychologists have the training and experience to provide meaningful information to the Family Court in deciding these very difficult issues. Psychologists also have the training and experience to provide important recommendations that can help these fractured families to achieve positive relationships post-divorce. In actuality, this is also one of the main functions of psychological assessments for child custody – to develop parenting plans that allow children to have positive and meaningful relationships with their parents.

Many of these cases involve a wide range of complex issues – allegations of sexual abuse, domestic violence, risk assessment and parental alienation. The psychologist must provide an evaluation that addresses these complex issues in a reliable and valid manner. However, the psychologist is not a judge of fact, even though the psychologist will have to evaluate the reliability of the information that is being provided and be able to discuss what underlying issues or motivations may contribute to what is being presented by the parents. Being able to hypothesise about these underlying motivations will assist the psychologist in developing an effective parenting plan for the Family Court.

Under the current Family Court guidelines, most terms of reference for child custody evaluations include an assessment of the positive aspects each parent provides in parenting the children. This requires the psychologist to evaluate the parenting
abilities of both parents. This can be done through interview techniques that focus on the values and skills the parent has, observing the parenting behaviour that is demonstrated, and investigating the type of parenting they were exposed to as children. It is helpful to include some type of normative comparison through use of appropriate psychometric instruments.

The child (or children) must also be assessed to determine what his/her needs are – developmentally, psychologically and cognitively – to inform the psychologist of the type of parenting that is required. Again, while most of this information can be obtained through interview, it needs to be corroborated in the developmental history, in school and physician reports, and through appropriate psychometric and psychological testing.

The psychologist must also be able to provide the Family Court with information on the effectiveness of the parenting for the child. An effective parent must have the capacity to provide love, empathy, structure and limit setting, and to have flexibility and good impulse control. The evaluation of the parent requires investigation across all of these domains. Use of collateral information, clinical interviews, observations and reliable psychometric testing are invaluable in completing this phase of the evaluation.

After completion of these three areas of investigation – parents’ attributes, the ability to be an effective parent, and the needs of the child – along with the specific terms of reference from the Family Court, the psychologist must then draw conclusions and use those conclusions to provide an opinion on what is in the best interest of the child in terms of residency and contact arrangements.

These conclusions and opinions provide the basis for the parenting plan. Parenting plans address how the child can have a positive and meaningful relationship with the non-resident parent. The plan can also address how to assist the resident parent in coping with the child having contact with the non-resident parent, if this has been an issue for the resident parent. If the child is now alienated from the non-resident parent (regardless of the reason for this alienation), the parenting plan provides the basis for the child to begin developing a relationship with the alienated parent in a safe manner that addresses his/her emotional and psychological needs.

Complaints regarding psychologists in Family Court matters

As presiding officer of the Western Australia Board of Psychologists, I have been increasingly concerned with the rising number of complaints being lodged against psychologists in relation to Family Court evaluations, a concern also shared by other Psychology Boards in Australia. At least in terms of Western Australia, many of the complaints centre on issues of the competency of the psychologist to provide such reports, the perceived bias of the psychologist, the methodology of the evaluation, and the existence of dual relationships (the psychologist as both expert witness and therapist).

The APA guidelines emphasise that psychologists who undertake child custody evaluations need to be aware that special competencies and knowledge are required, such as understanding the role of developmental history and developmental issues in evaluating children for the Family Court. Psychologists have to be not only mindful of their own biases that may influence the conclusions at which they arrive, but must “actively seek information that will differentially test plausible rival hypotheses(American Psychology-Law Society, 1991). As noted by Koehler (1994), the accuracy of people’s judgments is improved when they actively generate and consider a plausible alternative explanation for the event supporting a different outcome. In terms of methodology, psychologists need to ensure that the methodology employed is reliable and trustworthy as related to Frye/Daubert analyses.

Often psychologists come to the notice of Psychology Registration Boards when taking on the role of both single expert witness and therapist. This generally happens when the psychologist is already engaged in therapy with one or more members of the family and has been asked to write a report for the Family Court about residency and contact issues for the family. This then causes difficulty for the psychologist in terms of who is the client, what is the goal of the evaluation relationship, and the bases of information (Greenberg & Shuman, 1997). Another area that causes problems for psychologists is undertaking therapy with a child without obtaining permission of both parents, or completing an evaluation on the child for the Family Court without involving both parents.

Need for Australian-based guidelines

The number of complaints against psychologists involved in Family Court evaluations indicates the need for Australian guidelines for conducting child custody evaluations. Such guidelines would assist psychologists in deciding if they have the competencies to undertake this work, and provide direction in avoiding the many ‘landmines’ that are generated by complex Family Court evaluations. While the Family Law Act has provided guidelines from the Court’s perspective, it is time for the APS, through its Colleges, to support the development of Australian-based guidelines for conducting Family Court evaluations.

Providing single expert witness reports for the Family Court system can be challenging work for psychologists. It can be stressful and even traumatic if this specialised area is entered into without sufficient training, education and experience in the competencies required for such work. But undertaking Family Court evaluations also offers many rewards. It provides the opportunity for psychologists to contribute reliable and trustworthy information to the Family Court, and also to offer much needed direction and recommendations for families in rebuilding relationships following family breakdown.

The author can be contacted on drwilmoth@iinet.net.au

References

American Psychological Association (1994). Guidelines for Child Custody Evaluations in Divorce Proceedings. American Psychologist, 49, 677-680.

American Psychology-Law Society (1991). Speciality guidelines for forensic psychologists. Law and Human Behavior, 15(6), 655-665.

Family Law Amendment (Shared Parental Responsibility) Act 2006. Commonwealth of Australia.

Greenberg ,S.A., & Shuman, D.W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28, 50-57.

Koehler, D.J. (1994). Hypothesis generation and confidence in judgment. Journal of Experimental Psychology: Learning, Memory and Cognition, 20, 461-469.

Melton, G.B., Petrila , J., Pythress, N.G., & Slobogin, C. (1987). Psychological evaluation for the courts: A handbook for mental health professionals and lawyers. New York: Guilford Press.