Custody Newsletter #2

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WELCOME

Welcome to the Custody Newsletter. Our tone is informal; we WANT contributions based on your clinical experiences, as well as more formal presentations.

Second, we solicit input from members of all professions. This is why it is not mandatory that any specific References format be followed e.g., the bibliographic notation system of the American Psychological Association, the American Psychiatric Association, etc.

In general, we favor brief articles, contributions ranging from one-half of a typewritten page to about eight typewritten pages.

The Custody Newsletter received so many articles on what constitutes a "good" custody evaluation that it would be impossible to publish all of them -- especially since most of them cover the same territory. A belief expressed over and over is that one should never evaluate just one parent (with or without the children). I disagree with this assertion, even though it indeed is the ideal situation. The trouble is it's not always possible to achieve this ideal. I believe we professionals still have something to offer even in less than ideal circumstances, SO LONG AS ONE MATCHES THE SCOPE OF ONE'S EXTRAPOLATIONS TO ONE'S DATA-BASE (see also the article below by Dr. Warren). Dr. Zuckerman's beliefs are typical of those of many others.

ETHICS IN CUSTODY EVALUATIONS

(SHOULD ONE EVER SEE JUST ONE "SIDE"?)

To accept a referral, except in those cases where severe neglect or physical or sexual abuse is suspected, without first requiring that your position be neutral, is to risk being manipulated by the referral source and potentially offering skewed information to the court. Generally, I believe that the assessor should require that he have equal access to each party and attorney, and that the information he is to gather and analyze should be available to both sides, as well. Ideally, both parties should agree to participate equally in the

evaluation, and there should be agreements on how payments will be made and how the

results are to be used (i.e., they should agree that they will abide by the recommendation, consider it, etc.). This implies that each party would be able to present the psychologist to the children in a relatively equal way, so that the children do not view the assessor as allied to either parent.

It is important to see the children with each parent. My experience has been that children can often act quite differently with each parent, thus reflecting each parent's often differing view of how he or she thinks the children feel (i.e., with regard to who they want to live with, for example).

Further, especially in cases (and there are many such cases) where the other parent does not know the children are seeing the evaluator, the psychologist and the children both are drawn in to a conspiracy of sorts against the non-knowing parent, and having to keep such a secret from that parent can raise the children's anxiety. Thus, the process has the potential to make it more difficult for the children to maintain the necessary close and supportive relationships with both parents.

In some cases it is agreed that each party

should make themselves available to two evaluators (each hired by a different side). This seems to be at least a passable arrangement, insofar as the evaluator's ability to obtain a more three dimensional view of the family is concerned. There are problems here, however. Besides the fact that the potential for each evaluator to slip into an advocacy role still exists, it also changes the equality with which each party views each assessor, so that even when you get to see and evaluate the other attorney's client, you are seeing a person who is more likely to view you hostilely.

AUTHOR: William B. Zuckerman, Ph.D.
Licensed Clinical Psychologist
Burke Professional Center
8987 Cotswold Drive
Burke, VA 22015
(703) 764-0700

(Editor's note: Dr. Zuckerman implied, in a deleted section, that BPS or PORT data may vary in accordance with who brings the child to the evaluator's office. We have never found this. Should it occur, make sure to follow the specific recommendations in chapter VI of the PORT manual, and BPS Test Manual Supplement 6, 6/30/88. We conducted several mini-experiments in which half of the BPS items were administered to some children in the presence of one parent, and half in the presence of the other. While there were item number differences, in no case was the Parent-of-Choice different in the two situations.)

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In the following, Dr. Warren makes some very important distinctions among the roles a mental health professional may encounter in a custody dispute. Additionally, he believes, as I do, that one can evaluate only one (or a few) of the major participants in a custody dispute (e.g., one parent) so long as one appropriately limits the scope of one's conclusions.

ROLES AND DILEMMAS OF MENTAL HEALTH

PROFESSIONALS IN CHILD CUSTODY EVALUATIONS

Getting Caught in The Legal System

Many mental health providers find them- selves in court when an adult or child in treatment becomes involved in a family law matter such as divorce or custody. A professional may be compelled to testify about an adult or child patient if a judge believes the information to be relevant to the situation.

In these "involuntary" circumstances the role of the professional is that of a treating professional who can provide the court with relevant (in the Court's eyes) information. Certain dilemmas result from this unintentional involvement. Perhaps most often the treating professional (and the person receiving treatment) perceives a deposition or testimony as a conflict to the doctor - patient relationship. The professional may also find herself in the position of being perceived as an adversary to the other party(ies), neither a familiar nor therapeutic role.

In cross examination designed to depict a professional's client, it is not unusual for a psychologist to feel attacked for being an advocate for her client. However, the role of information provider is credible, especially when a client's weaknesses as well as strengths are elicited by the engaging attorney. Outside the courtroom, with appropriate releases of information and well before the hearing, it is appropriate for a treating professional to confer with an attorney in order to present appropriate strengths, weaknesses, and recommendations for possible questioning.

The Gun For Hire

A particular dilemma results when a mental health provider enters a family law dispute as an advocate of one parent or another. Shapiro (1984) notes that because of poor cooperation, legal posturing, or other factors it is often impossible for a professional to evaluate all parties to a custody conflict. However, the psychologist can note clearly that the evaluation is limited to the parties examined and any recommendations cannot exceed this scope (italics added by editor).

Attorneys can assist the professional in avoiding the hired gun stereotype, for example, asking the Court to order a multi-version evaluation, encouraging the litigants to sign a consent agreement, etc.

Defining One's Role Can

Avoid Dilemma's

Numerous mental health providers (Blau, 1984; Shapiro, 1984; and Weiner & Hess, 1988) have noted appropriate roles of professionals in child custody matters. Generally, there are three accepted roles for most professionals in the judicial -legal system.

The first role is that of an expert. Experts serve as investigators, evaluators, and communicators of information and opinion which are "true to the data" regardless of the retaining party in litigation. In

child custody matters, the mental health expert must be concerned with the child. The role is that of impartial evaluator. No matter who retains the expert, the wise professional attempts to avoid dilemmas by contacting all interested parties to be a part of the evaluation. The role of expert allows the psychologist to provide quality data to the Court, attorneys and clients involved in the case.

A second appropriate role for professionals in the custody case is that of consultant. Consultants assist parents, attorneys, judges, and others in identifying particular aspects of a case. Consultants are typically "allied" with a particular person or persons, such as a parent or attorney, helping to identify strengths, weaknesses, and nuances in an area of special subject matter. Importantly, this alliance should be recognized as such. If a consultant should testify as an expert, he or she should carefully delimit the area of testimony. In addition, a "consultant" may be used to plan, strategize, or evaluate relevant professional elements related to the family setting.

A third appropriate role is that of re-searcher. Psychologists in particular are trained as scientists, and research con-ducted within a subject realm can provide extremely valuable information to parties in litigation. The authors custody litigation research has ranged from investigations about a specific topic such as the effect of anorexia/bulimia on parenting, to presentations of scientific data which would seem to contradict "common sense," ideas such as the notion that the healthiest parent stays in a marriage no matter what.

The role of the researcher may coexist with the role of expert or the role of consultant, while the roles of overall expert and consultant must be mutually exclusive. For the attorney in family litigation, it is helpful to plan and ask for a specific role from the mental health professional, thus avoiding some unnecessary dilemmas.

ENDNOTES

1. Uniform Child Custody Jurisdiction Act, 9 U.L.A. 116 (1968).

2. D.L. Shapiro, Psychological Evaluation and Expert Testimony: A Practical Guide to Forensic Work (1984).

3. T.H. Blau, The Psychologist as Expert Witness (1984); Shapiro, supra note 2; I.B. Weiner and A.K. Hess, Handbook of Forensic Psychology (1987).

BIBLIOGRAPHY

American Psychological Association. Casebook on Ethical Principles of Psychologists. Washington D.C.: American Psychological Association, 1987.

Blau, T.H. The Psychologist as Expert Witness. New York: Wiley and Sons, 1984.

Brooks, A. "Divorce and Child Custody." In Law, Psychiatry and the Mental Health System. Boston: Little, Brown and Co., 1974.

Ewing, C.P., ed. Psychology, Psychiatry and the Law. Sarasota, Fla.: PRE, Inc., 1985.

Freed, D.J., and H.H. Foster. "Family Law in the Fifty States: An Overview." Family Law Quarterly (1984): 365-450.

Gardner, R.A. Family Evaluation in Child Custody Litigation. Cresskill, N.J.: Creative Therapeutics, 1982.

Keilin, W. and L. Bloom. "Child Custody Evaluation Practices: A Survey of Experienced Professionals." Professional Psychology: Research and Practice 17 (1986): 338.

Knapp, S.J., and L. Van de Creek. "Psychotherapy and Privileged Communications in Child Custody Cases." Professional Psychology 16 (1985): 398-407.

Langelier, P. "The State of Child Custody Decision-Making." Presented at the Family Evaluation in Child Custody Disputes Symposium, Institute of Law, Psychiatry and Public Policy, University of Virginia, 1983.

Lowery, C.R. "Child Custody Decisions in Divorce Proceedings: A Survey of Judges." Journal of Professional Psychology, 12, no. 4 (August 1981).

Musetto, A.P. Dilemmas in Child Custody: Family Conflicts and Their Resolutions. Chicago: Nelson Hall, 1982.

Scott, E.S., and R. Emergy. "Child Custody Dispute Resolution." In L.A. Wiethorn, ed. Psychology and Child Custody Determinations. Lincoln, Neb.: University of Nebraska Press, 1987.

Shapiro, D.L. Psychological Evaluation and Expert Testimony: A Practical Guide to Forensic Work. New York: Van Nostrand Reinhold, 1984.

Smith, S.R., and R.G. Meyer. Law, Behavior and Mental Health: Policy and Practice. New York: New York University Press, 1987.

Stromberg, C.D., et al. The Psychologist's Legal Handbook. Washington, D.C.: The National Register of Health Service Providers in Psychology, 1988.

AUTHOR: John F. Warren, III, Ph.D.
Licensed Practicing Psychologist
7990 North Point Blvd. #204
Winston-Salem, NC 27106
(919) 759-2430

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I love Mr. Sprengelmeyer's opening line. You can tell he's been around the block several times, attempting to solve the dilemmas one encounters in doing custody evaluations.

PERSONAL CHOICES FOR THE GOOD EVALUATION

One can never underestimate the intensity and lengths of a former spouse to discredit the other parent in any way possible. For these reasons, measures concerning personality, hostility, self-acceptance, depression and anxiety are administered to both parents under controlled conditions, as well as instruments such as the Family Environment Scale or the Parenting Stress Index. The assessment of the children includes use of the Bricklin Perceptual Scales, Family Drawing, an Anxiety Inventory, Depression Inventory, a thematic test and possibly a self-report personality instrument.

I never do an assessment on only one parent. My largest problems come not from issues of assessment, but the amount of misleading information allowed by judges to be introduced by attorneys which cannot be evaluated.

In my use of the Bricklin, I discovered it was necessary to paint the outside of the card holder black, as a seven year old I evaluated used the symbols on the side and the writing on the stylus to measure her responses so her mother and father would score approximately the same on the various questions. I have had another child fill out the scales in an idealized fashion, making other measures and the interview

then carry more weight.

So far in six evaluations using the Bricklin and other instruments, there has been overall agreement between all aspects and instruments.

REFERENCES

"Bricklin Perceptual Scales", Barry Bricklin, Village Publishing Inc., Doylestown, PA 18901.

"Child Anxiety Scale", John S. Gills, Western Psychological Services, Los Angeles, CA 90025.

"California Psychological Inventory", Harrison G. Gough, Consulting Psychologist Press Inc., Palo Alto, CA 94303.

"Family Environment Scale", Rudolf H. Moos, Bernice S. Moos, Consulting Psychologist Press Inc., Palo Alto, CA 94303.

"Minnesota Multiphasic Personality Inventory", Starke R. Hathaway, J. Charnley McKinley, National Computer Systems, Minneapolis, MN 55440.

"Parenting Stress Index", Richard R. Abidin, Psychological Assessment Resources Inc., Odessa, Florida 33556.

"Reynolds Child Depression Scale", William Reynolds, Psychological Assessment Resources Inc., Odessa, Florida 33556.

"Self Rating Depression Scale", W.W.K. Zung, Archives of General Psychiatry, 12:63 (Jan) 1965.

AUTHOR: Steven J. Sprengelmeyer
MA, MSW, ACSW, LSW
2919 Illinois Avenue
Dubuque, IA 52001

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In this extremely interesting article, Dr. Saylor tackles a very important issue: just where does one draw the line in deciding what should constitute custody evaluation data?

WHERE TO DRAW THE LINE?

The range of material which clients or their attorneys wish to introduce can vary widely. One can become confused and overwhelmed by the volume of affidavits, depositions, tapes, medical records, and other sorts of testimonials which clients wish to bring in to prove their points.

The simplest way to deal with this dilemma is to review all materials that the clients or their attorneys might wish to offer. The problem with this approach, it seems to me, is that it can place us, the mental health experts, in an inappropriate role, trying to interpret various documents without having access to all the facts.

A recent case illustrates the problem. Each parent informed me that the other had used and sold drugs both during the marriage and currently. Each denies the charges. Both claim to have witnesses. Personality test data, the statements of the child, and clinical observations do not conclusively support or disconfirm either version. Both parents furnish lists of people who will testify to their own innocence and the ex-spouse's guilt. They invite me to read the affidavits and/or to call these individuals.

At this point in time, I have chosen not to take these sources into account, but to recommend that the court consider all the evidence. I made this decision based upon my feeling that if I were to take on the job of trying to prove the issue one way or the other, I would bog myself down in detective work and hopelessly complicate the assessment task at hand for me.

In cases like this, I feel the clinician could easily become entrapped in an endless chain of accusations and counter accusations which could lead far afield from the areas in which we have our real competence, i.e. personality assessment, child development, and interpersonal dynamics. An additional consideration for me is the time and cost of reviewing stacks of statements made under varying conditions whose accuracy we cannot verify. While I realize that cost-cutting should not be a limiting factor in performing such a serious task as a comprehensive custody evaluation, the fact is that for many clients taking ac-count of every document introduced into the case file could greatly inflate cost without contributing a meaningful increment of reliable information yield.

In addition it can perpetuate or encourage the misperception which many clients have that we are the final judge of the truth, and they must argue their case to us. I have found that when clients persist in this inappropriate perception, they become more resistant to the evaluation process, and the likelihood of my obtaining helpful, reliable information is reduced.

AUTHOR: C. Barton Saylor, Ph.D.
Licensed Clinical Psychologist
Charleston Psychiatric Associates
669 St. Andrew's Blvd.
Charleston, SC 29407

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Dr. Gasparrini describes what he calls the "hidden agenda" evaluation. I rarely encounter this. I wonder how many of The Custody Newsletter's readers do?

THE HIDDEN AGENDA CUSTODY EVALUATIONS

On some occasions, a parent may bring in a child with some complaint or other as the reason for evaluation (e.g., concern about possible sexual abuse) when the real intention is to gather ammunition for a custody dispute. The issue of whether a custody dispute is in progress should be considered early in the evaluation process, perhaps even during an initial telephone call when the appointment is being scheduled.

Instead of simply testing the child and hearing the viewpoint of one parent, it always seems preferable to get complete psychological evaluations with the child, both parents, any step-parents who will be involved in caring for the child, and it is

also appropriate to get interview data from any siblings who will be living in the home.

As part of the testing in a custody evaluation, I like to include the Bricklin Perceptual Scales for children who are old enough to understand this material. I also find it useful to have each parent complete an MMPI and the Child Abuse Potential Inventory.

I often find a projective family drawing useful with children of all ages. A very important part of this procedure is a detailed inquiry about who the characters in the family drawing represent.

AUTHOR: William Gasparrini, Ph.D.
Applied Psychology Center, P.C.
2472 Pass Road
Biloxi, MS 39531
(601) 388-9303

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SOME BRICKLIN REFLECTIONS ON THE

"GOOD" CUSTODY EVALUATION

1. The "hired gun" is seen as "bad" for the wrong reason. The hired gun is not bad because he or she was hired by just one side. The badness comes about when the scope of any evaluator's testimony exceeds its data-base.

2. One can evaluate just one parent, provided one can name the specific data-base used to reach conclusions i.e., the normative statistics. Interviews and "free-form" (no data-base) observations have insufficient data-bases to permit meaningful custody recommendations.

3. The reason most evaluators like to see all parties is to hear both sides of the story. Since I rarely believe either side of any "story," this reason is not a very compelling one for me.

4. I think most psychologists overestimate their ability to learn important things from interviews. Zygmunt A. Piotrowski (with Nolan Lewis) told me of a study in which test diagnoses were compared with intake psychiatric interview diagnoses. The agreement rate was 65 percent. (This research project was first reported in the Rorschach Research Exchange, 1945, and again in a series of articles, during 1955, in the American Journal of Psychiatry.) Three years passed. Now, based on 3 years of follow-up data, the psychiatrists re-diagnosed these same cases. The agreement rate between the 3-year follow-up diagnoses and the original test diagnoses was now 95 percent. The tests beat the interviews by 3 years. Psychologists, in their zeal to imitate psychiatrists (i.e., depend on interview data for diagnoses) have moved away from an area of great scientific strength, data-based tests.

5. A main reason I am willing to see only the child (when efforts to secure a non-adversary scenario have failed) is the goodness-of-fit principle which underlies most of our research efforts.

A parent has a set of styles with which he or she interacts with a given child. The style may vary from context to context,

e.g., offering information, giving advice, demonstrating competencies, offering love, offering support and encouragement, demanding obedience to rules, a way of behaving with neighbors, a manifestation of integrity (or non integrity) in a wide arena of areas (dealing with businesses, employees, etc.). A style that works well with one child may work devastatingly poorly with another. Long involved explanations, for example, may be very informative and nourishing to certain children, and a decided burden to others who interpret these long explanations as a sign of a lack of confidence in the child.

Hence, the most meaningful piece of information a custody evaluator needs is not what a parent does, but the goodness-of-fit between what is done and its usefulness to a given child at a particular time (the kind of information yielded by the BPS and PORT).

6. The problem with using standard psychological tests in custody cases is not that they fail to detect what they are supposed to-- but rather that there is no accurate way to "weight" one's findings. Is depression better or worse than obsessiveness? How much depression is too much depression? What if depression in a parent depresses one child but forces another child to fall back on his or her own resources and hence literally blossom with self-discovered strength? What if one parent is anxious and the other depressed? Which is worse? Again, an evaluator's prime need is not to find out what parents do, but rather the impacts-- positive and negative-- of these behaviors on particular children at particular times. ( A dissenting viewpoint will be featured in the next CN, in the form of an excellent article by Dr. Carl F. Hoppe.)

CUSTODY COURTS AROUND THE COUNTRY

Our legal system extends wide discretion to the judges and other critical decision makers who deal with custody disputes. No single ruling, regardless of its origin, imposes extensive restrictions on these decision makers. A practitioner seeking guidance in any phase of custody decision making must look beyond individual statutes and rulings. Familiarity with custody law as a whole, paying special attention to discerning the intentions of the lawmakers, is where guidance can be found. Hence the following is in commentary form, and in no instance is a report EVER intended for legal use.

RESIDENCY RESTRICTIONS: ARE THEY ENFORCEABLE?

There is a growing tendency in custody settlements for a parent to agree to remain in a specific locale. My feeling is this is often with the parent who has the lesser power in the relationship. For example, if a wife depends on money from a husband, and the husband has his business in a particular city (so that he can find some peg to hang his hat on to justify his request), he will make her agree to keep the children in this area if she wants primary custody. In a recent ruling, the Mississippi Supreme Court found that this is unenforceable. It instructed state divorce courts to withhold approval of such agreements. The Court said that there is no way anyone can look into the future to the degree that this kind of agreement pre-supposes. It pointed out that a court cannot ignore the fact that a custodial parent may have genuine better opportunities for advancement in another community. It therefore ruled that a custodial parent who had agreed to a

residence clause, could indeed move the children from this designated city to another city where there were better opportunities.

Reading between the lines, there is much to consider in a case like this. It is undoubtedly the fact that many parents have "skipped" from a locale claiming that there were better opportunities in another city, when in fact the desire was to withhold visitation to the other parent.

My reading of several cases in this area indicates that the consensus is to move toward giving an individual court more discretion in deciding individual merits of a particular case. The Mississippi Supreme Court, however, was saying that on the face of it, asserting that a child has to spend his entire minority years in a given locale makes no sense (see the next summary).

LANDMARK DECISION ON RELOCATION

In what I believe will be an exceedingly important decision, the Pennsylvania Supreme Court recently put forth a decision which allowed a custodial parent to relocate. My belief is that a short time ago this would not have been possible, and the reasoning advanced by the court would not have been easily accepted.

In the particular case in point, following the divorce, the mother was given primary custodial care of three children and the father had visitation on alternate weekends and numerous holidays. The mother became increasingly depressed and argued that she felt isolated because she was unable to live with her brother and sister who were in Illinois. The father petitioned the court to prevent the mother from removing the children from the state. She then petitioned for a modification of the order which would allow her to move.

The trial court had ordered that the children should not be removed from the court's jurisdiction and that should the mother move from Pennsylvania, the father would gain legal and primary custody during the school year; the mother would have custody during the summer. The mother appealed. The Pennsylvania Superior Court argued that the best interest standard should indeed apply but one must not look at this narrowly. It reviewed several other cases from around the country trying to glean the guiding principles. It went on to reason as follows. After a divorce, two new families are formed. The one which is far more important to the child is the family of which he becomes a member, that is, the family formed with the primary caretaking parent. It argued that it is within this family that most of the important psychological interactions take place which will forge the child's mental health. It argued that in determining the best interests of a child, major attention must focus on the primary custodial family. "What is advantageous to the family as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interests of the children..." (This was quoted from a prior case.)

In a long argument, the court considered how difficult it really is to balance the needs of the custodial parent with those of the noncustodial parent in relation to the effects on the child. It was obviously grappling for a way to assign a "weighting" here. The presumption obviously is that anything that can appreciably enhance the quality of the custodial parent's life will have a direct benefit to the child. It went on to say that this will be tough to call, and certainly the court must consider whether it is being used as a ploy to get the children away from the noncustodial parent.

This case was interesting to me because it

wasn't even claimed that the mother would appreciably enhance her income, which is usually the reason given when a parent seeks to relocate. That is, it is usually argued that the parent who wishes to relocate has to do that in order to get or maintain a job. In this case, the mother merely claimed it would help her to get over a depressed mood.

My interpretation of this is that the door is being opened ever wider for a possibility of relocation. There is a greater awareness that the mental health of the primary caretaking family as a whole must be taken into account to a greater degree than has been the case in the past.

MORE ON "PRIVILEGED" COMMUNICATION

An attorney apparently knew that a non- custodial parent was going to leave the area and not return a child to the custodial parent. Somehow the court got wind of this and ordered the attorney to reveal her client's intention. She refused on the basis of the fact that this would divulge confidential information which should be considered privileged. The Illinois Appel

late Court argued this was not so. It pointed out that the United States Supreme Court has repeatedly ruled that attorney-client privilege does not create an umbrella over communications between a lawyer and his or her client in which part of the purpose of this communication is to further "a crime."

THE AIDS VIRUS: DOES HAVING IT

INDICATE "CHANGED CIRCUMSTANCES?"

A mother tested positive for the HIV virus, which may cause Aids. The father apparently claimed that this changed the circumstances of their custody agreement, and called for a modification of the order. The New York Family Court disagreed. It argued that there was no immediate threat to the child which could be proven. It reminded us that the consensus of medical

experts is that this virus is not spread casually, including close contact between members of the same house. It pointed out that HIV-infected children are allowed to attend public schools. It held that there was no finding in this particular case that the mother's condition had indeed moved into a range where she would be dangerous to the child.

WIFE CHALLENGES AWARD TO FATHER BY CLAIMING

HE WAS NOT REALLY THE FATHER

The two participants got married about a year following the birth of a son. The husband was told the child was his, and was named the child's father on the birth certificate. They were divorced within half a year. The husband sought custody of the child. At this point, the mother revealed that the child had been fathered by someone else other than her husband. She was able to show genetic blood testing results which concluded it was not possible for the husband to be the biological father. The court gave permanent custody of the child to the husband, and the wife appealed. The Rhode Island Supreme Court upheld the trial court's determination. It said that paternity is established by nature of the behaviors in which the participants engaged e.g., the husband married the wife after she gave birth to the child she said was his, and he agreed to be named as the father on the birth certificate.

The Supreme Court was quite concerned about a situation in which a mother can tell a man he is the father of a child, marry him, and then make the child illegitimate during a divorce proceeding by attacking the presumption of paternity that her own actions brought about. "...Under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as father of the child." Where this so-called "equitable estoppel doctrine" is in operation, whether or not genetic blood tests tell a different story is irrelevant.

The wife also based her appeal on the fact that the trial court's awarding the child to the father was not "in the best interests of the child." The Appeal Court did some fancy footwork here by defining several factors that should be considered in coming to a "best interest of the child" decision and essentially said that it really should be left in the hands of the trial court. The implication here, although they worded this in a legally vague way, was that this is an amorphous kind of decision and there was no legal basis to challenge it. The presumption was that the trial court did consider all of the factors. This is an instructive case in the latter regard; one cannot appeal a case merely because one feels the decision was unfair. There has to be a far more serious matter involved, almost always that some legal mistake was made in the procedure.

ARE WORKING MOTHERS VIEWED MORE

NEGATIVELY THAN WORKING FATHERS?

There are many confusing elements in the present case in which the Appellate Court overturned a trial court's decision. The interesting and operative statement from the New York State Supreme Court was that a mother is certainly allowed to pursue outside employment so long as this does not result in neglect of the child. The New York State Supreme Court felt that the trial court had erroneously allowed itself to be thrown off the track in applying a more rigorous standard in evaluating the negative effects of a mother's being away from home than was the case in evaluating the father's situation. It singled out the fact that this had been mentioned, that is, that the mother can pursue outside employment only so long as it does not result in neglect of the child. This was not mentioned in regard to the father.

The adult participants were married in 1974. The husband was in medical school and the wife had received a degree in nursing. At some point, they both argued that each had been more responsible for the child's early rearing.

The Appellate Court did not feel the facts set forth at the trial supported any contention, which the father's side had made, that the mother was a "remote control mother" and didn't play much of a role in raising the children.

Also, the trial court had allowed a lot of testimony about a relationship the mother had had with "a lover" while this was not allowed in reference to the father's outside activities. Apparently, what had happened was the attorney for the mother tried to question the housekeeper and father about these activities and this was disallowed by the trial court. The Appellate court went on to say that in a custody dispute the sexual behavior of a litigant is only pertinent if there is proof that it is having a negative effect on the child. Also, mothers and fathers should not be held to different sexual standards.

At some point in their written opinion, the Appellate Court quoted another case that involved a working mother: "There is no question...that the mother, because of her needs in relation to her employment, does not devote full time to her son, but in this day and age, a woman is entitled to her own career so long as such pursuits do not result in neglect of the child."

Reading between the lines, my interpretation is that the father had a good bit more money than the mother and could afford a housekeeper and a really nice house. The mother, on the other hand, had more modest assets and was probably away from the child a good bit of the time, but not much more than the father was.

The Appellate Court apparently felt that the trial court had applied a more stringent standard to the mother's working behavior than to the father's. This certainly parallels my own feeling, having taken part in literally hundreds of custody disputes in the courtroom.

THE REAL RIGHTS OF HOMOSEXUALS

IN CUSTODY BATTLES

David and An had two children, one 4 and the other 17 at the time of the hearing. The marriage was very stormy and included frequent separations, drinking problems on the part of the husband, and infidelity on both sides. An met a woman named Phyllis, who eventually moved into David and An's trailer home with her own son. A short time later, at An's request, David moved out and An and Phyllis began having sexual relations. Neither filed for divorce.

A while later, David, along with his mother and stepfather, filed a complaint against An, saying that she smoked marijuana in front of the children, neglected their health, and conducted herself in an immoral manner with Phyllis. At the time of the trial, An had no job and no money. She and Phyllis were living with one of Phyllis' relatives. She admitted that she used marijuana and also that she sometimes slept until late in the morning and that the children might be outside and unsupervised. There were arguments about whether the children were truly neglected e.g., outdoors in cold weather with poor clothing, becoming sick because of a result of this, going hungry, etc. An claimed nobody ever complained about how she was raising her children until she began her relationship with Phyllis.

The trial court decided that An was morally unfit. It awarded custody of the children to the paternal grandparents. An was

ordered to pay support money. Interestingly, the father was also found to be unfit and was also ordered to pay support. His mother and stepfather were awarded the children. An appealed on several bases. One was that natural parents have precedence over non-parents. Her main argument was that the court was prejudiced by her lesbianism.

In advancing arguments on the first basis, she claimed the children cannot be taken from parents simply because they can provide more financial advantages.

On the second issue, she argued that nobody has shown that her behavior in fact had any detrimental effect on the children.

Reading between the lines, it is obvious that An was saying that her lesbianism prejudiced the court and their determination was made on this basis. The higher court held that the trial court did not err, and it backed this up by pointing to behaviors other than the lesbianism which was detrimental to the children.

The argument was a long and tortuous one. My own reading of this and several cases is that in many states there is definitely a bias against homosexuality and while the courts are smart enough now not to acknowledge this in the open, they are deeply prejudiced by it. The present case took place in Mississippi.

A CHILD'S RIGHT TO HAVE HIS OR

HER OWN ATTORNEY REPRESENTATION

In the present case, there was an allegation of sexual abuse. However, the interesting thing about this situation was what the Connecticut Appellate Court had to say about any hotly contested custody battle. The critical concept was that wherever there is a hotly contested contest, especially if there is an allegation of abuse in the picture, the child must have his or her own representation.

There is a growing tendency among court systems to know that when parents are

caught up in a battle, their attorneys end up representing them-- the parents. The child's best interests go down the drain. There is subsequently a growing recognition that the child have separate attorney representation.

MARIJUANA SMOKING

The Kentucky Court of Appeals recently said that the "past" occasional use of marijuana by guests in a custodial mother's home does not constitute "serious endangerment." The father was trying to prove that the discovery of such conditions constitutes a change of circumstances, and claimed this

was serious endangerment.

The court went on to condemn the use of legal substances, but said that the fact that the mother occasionally had allowed a friend to smoke marijuana in her home did not meet the criterion of "serious endangerment."

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IN THE NEXT ISSUE OF THE CUSTODY NEWSLETTER

DO CONVENTIONAL PSYCHOLOGICAL TESTS

HAVE A ROLE IN CUSTODY EVALUATIONS?

Dr. Carl F. Hoppe of Beverly Hills, California says they definitely do.

Even though CN's editor has some reservations, I wrote to Dr. Hoppe saying that to argue psychologists should have faith in psychological tests is like arguing surgeons should have faith in scalpels. I thought I was the odd-ball, that indeed most psychologists do have faith in the contribution of conventional psychological tests to custody evaluations.

Au contraire, says Dr. Hoppe: "Unfortunately, telling psychologists to have faith in psychological tests is not like telling a surgeon to have faith in scapels. The impetus for my article was the statement by a Ph.D. to family law attorneys that psychological tests were of little or no value. Too many psychologists are eager to decry the use of psychological tests, in the erroneous belief that interviews or observational methods--for which there are no external scores or criteria, and for which no validity coefficients are in existence--are somehow more valid and less biased than the other kind of interview and observational data which have come to be known as tests--for which the expected range of responses has been specified in advance.

Also, the identification of parents who are psychologically ill is not easy in a litigation setting. Many parents argue there has been a change of circumstances, such as a full recovery. While as clinicians we may have one opinion about it, convincing the court otherwise can be a problem. There also are numbers of people whose spouses allege that they have major psychological problems which have never been treated in any treatment setting or which may have been treated in private circumstances masquerading as medical illnesses. Sometimes individuals who are alleged to have mental problems argue that they are recipients of projections from the other spouse, who is actually the actively ill one. Further complicating the demonstration of parental psychopathology is the fact that some seriously mentally ill persons are wildly successful financially and can be very influencial in the community and can muster formidable legal forces in an all-out custody war."

THE RIGHTS OF STEPFATHERS

I took part in a case where I was asked to evaluate a young lad and the stepfather who was seeking primary custody of this 12 year old boy. The boy had been living with his mother and stepfather. He had lived with them for many years, when the mother developed a tragic illness and died at a very young age. The boy was much heavily bonded to this stepfather and had an excellent relationship with him. He had seen his biological father only sporadically over the years. The biological father now moved to gain full custody of the lad. The lad, who was quite articulate and quite healthy, made a very persuasive argument that he really loved the stepfather far more, considered him his real father, and did not want to be with the biological father. The attorney representing the stepfather was told by the trial judge that the stepfather had no standing to move for primary custody; that if there is a biological parent in the picture, that biological parent automatically gets the nod.

In the present case, the Utah Supreme Court held that a stepfather does have standing

to seek custody of a child, that a stepfather is entitled to a hearing.

This case of course had several unique elements. The stepfather resided with the biological mother when she conceived the child, but he was not the biological father. The mother later abandoned the child and her parental rights were terminated. So were the rights of the biological father.

What's interesting here is then the fact that the stepfather was given standing to pursue custody, but it seems from a common-sense perspective that there may not have been any other "biological" competitors. The only competition was the state.

It does show, however, that there are situations in which a stepfather (or stepmother) would have standing to pursue custody. My own interpretation is that the circumstances would have to be exceptional if this were being contested by a biological parent. Further, statutory regulations on this vary from state to state.

TRIBAL COURTS IN ALASKA

The U.S. Court of Appeals claimed that a child custody decision made by a Tribal Court in an Alaskan native village may be entitled to full faith and credit in state courts.

The court reasoned that if a native village

can trace its origin to a sovereign entity that was in existence before non-natives in North America arrived, the village retains an authority to exercise control over its members. This is contained in the Indian Welfare Act.

CAN A PARENT ENGAGE IN BEHAVIOR WITH A CHILD

THE OTHER PARENT CONSIDERS DANGEROUS?

Apparently so. A mother was upset that a child's father took the child flying during his visitation time with the child. The mother objected that this was dangerous and a trial court found for her. It was overturned by the Mississippi Supreme Court, which ruled that a custodial parent cannot put restrictions on the recreational act-

ivities in which a child engages during visitation with the other parent without showing that there really is a clear and present danger to the child. Apparently, the State Supreme Court did not feel this behavior, flying, was against the child's best interests.

THE RIGHTS OF GRANDPARENTS TO SEEK VISITATION

This write-up summarizes many court proceedings. The gist is that the "best interests" standard should not be applied in regard to grandparents seeking visitation with a child over the objections of parents. In one such case, the appellate division of the New York Supreme Court ruled that for a grandparent to petition for visitation there must exist some circumstance (re the parents) that would cause harm to the child. A grandparent can seek visitation with a child over the objections

of parents when some vitally compelling reason involving the child's well-being is at stake: it cannot be argued simply on the basis that it would be "in the child's best interest." In custody cases where, say, one parent objects and the other one does not, this is not an issue, since presumably the child will have time with the non-objecting parent and the child can see his grandparents during that particular time.

THE PRACTICE OF GIVING VERY YOUNG CHILDREN TO MOTHERS

OVER FATHERS SIMPLY BECAUSE THEY ARE MOTHERS IS NOT YET DEAD

The Oregon Court of Appeals did not overturn the trial court's decision to give a 17 month old child to the mother, but did take exception to the wording of the trial court's finding. In the decision, the following phrase occurred: "All things being equal, the infant children go with the mother..."

The Court of Appeals said that the

statement should have been more properly stated as: "All things being equal, small children should go with the caretaking and more nurturing party..."

In the above case, the court did find that the weight of evidence showed that the mother was the more appropriate primary caretaking parent.

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