Custody Newsletter #8

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.

In a previous article, Jack Schwartz referred to "parental attunement." Here he responds to my request to define this term in greater detail.

His response brings up a number of important issues.

For one thing, I do not believe this capacity-- a parent's ability to respond in nurturant and facilitative ways to a child-- is as "global" as Jack seems to imply. He makes the point that before a person is a parent he or she is simply a person-- a human with the capacity to relate warmly and "attunedly" to others or not.

My experience (and reading of the data) is that the typical person responds to the world in an enormously contextualized way. A person who is rude and aggressive with adults may be warm and empathic with children, a parent who can offer relaxed clear advice about homework can be angry and restricted offering dating advice, a parent who has an easy, relaxed attitude with very young children may be tense and indecisive dealing with teenagers, and an individual who is warm and capable on the job may be a sex abuser when alone with children.

Hence I would be very careful about coming to any "global" conclusion about a particular parent's capacity to act in an "attuned" way.

To me, the way to approach this is by conceptualizing the many different contexts in which parent-child dyads present themselves, and then thinking of the goodness-of-fit or "attunedness" that does or does not exist.

Second, there is the much bigger problem of just how one is to measure the degree of attunement.

These caveats aside, the concept is indeed an important one, and represents that which the BPS, PASS, PORT and PPCP, in fact, attempt to measure.

MORE ON PARENTAL ATTUNEMENT IN CHILD CUSTODY EVALUATIONS

Assessing parental attunement lies at the core of the custody evaluator's formidable task. Attunement speaks to the degree a parent's relationship with his or her offspring over time facilitates the child's physical, emotional, psychological, moral, and social development. Most custody evaluators, in some way, have in mind what it means to be a well attuned parent and correspondingly have a knowledge of what may be the impact of a poorly attuned parent. For the sake of focus, I will assume we are talking about parents who do not display any overt or severe psychological disturbance, where lack of attunement is obvious. Nevertheless, evaluators are often asked to make recommendations concerning parents whose character issues and various deficiencies and/or pathology is not very evident. It is in these cases that the evaluator must have a firm operational grasp of the concept of parental attunement so as to recognize it not only in its most manifest ways, but also in its subtle ways.

Two Basic Factors

I am first interested in who a parent is, and how this parent relates to the world in general. In my years of doing custody evaluations, I discovered a very important construct: a parent is a person first, before he or she becomes a parent. If a person is able to form satisfying, mature intimate, nurturing relationships with others, it is likely these qualities will be carried over into the parental sphere. And, likewise, if a parent is unable to maintain enduring, nurturing, intimate relationships with others, it is less likely he or she will be able to create these entities in parental roles. Attunement speaks to the idea that the quality of the individual's general interpersonal relatedness profoundly impacts on the individual's parental capacity. (Note from CN Editor: While I believe this is true in a "group statistics" sort of way, I would be reluctant to make this assumption-- in the absence of test-based confirmation-- in an individual case. Further, the types of individuals who pass t6

e3spension rather than a termination of custody, and only for the length of time necessary to assess whether his wife was recovering. The court granted the father's requests.

A second important rule in custody cases involving substance abuse is to relate the addiction to the custody issue by demonstrating that the child's health and general welfare are endangered by addiction. Specific examples would include driving while under the influence with the children in the car, blackouts or mood changes that result in the threat of physical harm resulting from violence or inattention, serious detachment or incapacitation that results in virtually leaving the children unattended, seriously out of control behavior which is potentially dangerous, such as bringing strangers into the home.

Third rule: in borderline cases where the substance abusing parent has good parenting skills, the important issue is whether the children are, on the whole, safe and well nurtured by that parent. Since not all bad parenting is the result of addiction and not all parental abuses (e.g., smoking around children) warrant a loss of custody, so too, the adequate substance abusing parent should not be denied custody. Meyers points out that the key in these borderline cases is the motivation of the challenger to help rather than punish the addicted parent.

Fourth, professional evaluations are essential, and an evaluation of the children by a mental health professional should be the first step taken by a parent who suspects the other parent of substance abuse. Only if the evaluation shows that the children are being harmed should the evidence of abuse be gathered and court assistance sought. Meyers suggests other important reasons for a professional evaluation. The testimony of the expert witness will be an important part of the case, but both client and lawyer should prove to themselves that the proposed change of custody is in the children's best interests. It can also help the client improve his or her parenting skills.

Meyers suggests that spot testing the abuser for drugs can be ineffective if he or she is sophisticated enough to prepare for the urine toxology screen. Negative test results could cause the challenging parent to lose credibility. Similarly, a "spot psychological examination" is not recommended by Meyers. He points out that the court may not order such an evaluation without prior evidence. Additionally, a mental health professional who has previously worked with the addicted parent may support that parent's case through a sense of loyalty to the abuser, a belief that the disclosure of records is unethical, or a failure to discern the harm to the children.

Meyers suggests certain evidence of damage to look for in evaluating the children, including low self-esteem, the assumption of a parenting role in his or her relationship with the abusing parent, anxiety or fearfulness when with the substance abusing parent, a sense the home is not safe or is unpredictable, or an unwillingness to show any feelings at all.

After the evaluations have been completed, it is important to find friends or associates of the substance abuser who are willing to testify. An important part of this effort is to help people recognize that their testimony may save the substance abuser's life.

A fifth rule is to evaluate any proposed rehabilitation program and carefully monitor progress during treatment. The addicted parent or his or her counsel may suggest one of the unethical programs which actually are fronts to prove that the substance abuser is receiving treatment when, in fact, little or no care is given. Therefore, a substance abuse expert should evaluate the suggested program. In order to monitor treatment, the substance abusing parent should sign release forms so that the challenging parent, a substance abuse medical expert, and the court can receive copies of test results. Regularly scheduled follow-up tests should continue after the parent's release from the rehabilitation program.

Meyer's sixth and last rule is more a reminder that court assistance should be sought only as a last resort after every effort has been made to persuade the substance abuser to voluntarily accept help. He suggests that a "created crisis" managed by a medical interventionist is an effective method which can force the abuser to recognize the addiction problem. In a surprise encounter, the substance abuser is confronted by a group of family and friends who each relate how the abuser's behavior is perceived and how it is harming the abuser and others in his or her life.

In summary, the custody proceeding where one parent's substance abuse is an issue must show that substance abuse seriously impairs parenting ability, that the purpose

of requesting court assistance is to help the addicted parent while protecting the child, that a plan for rehabilitation can be worked out benefitting everyone but especially the children, and that the goal of this action is to restore to the children two fit and competent parents.

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Two women lived together for fourteen years. During that time, they agreed that they wanted to co-parent a child and one of the women conceived a child through artificial insemination. Both women shared child care responsibilities and financial support. After fourteen years, the women separated, although they renewed their original co-parenting agreement and it was honored by the custodial parent for one year following the separation. Then severe restrictions on visitation led the non-custodial parent to file an action seeking joint legal custody and time-sharing. "The court entered an order stating that the parties had entered into a settlement agreement providing for dismissal with prejudice." After five months, the non-custodial parent petitioned to enforce the alleged settlement agreement or, alternatively, to seek visitation or shared custody. She claimed that the custodial mother's counsel refused to reduce the oral settlement agreement to writing and that "that agreement formed the basis for the dismissal of her action with prejudice." She said the custodial parent had fraudulently misrepresented her intentions to honor the settlement agreement after the

case was dismissed with prejudice. A district court affirmed the earlier dismissal and found that the non-custodial parent had no enforceable rights or standing. The New Mexico Court of Appeals reversed the dismissal, stating that the non-custodial parent had made a prima facie showing that warranted a consideration of her rights to a continuing relationship with the child. The Appeals Court further ruled that the district court had erred in its conclusion that as a matter of law the agreement was not enforceable because it was not in the child's best interests. The determination of whether the proposed visitation is not in the best interests of the child is a factual one and must be made on the basis of the evidence. Although there is no clear evidence that the two women had a lesbian relationship, sexual orientation or sexual activities can only be considered by the court in terms of whether or how they affect the child. The Appeals Court concluded that since the non-custodial parent has shown that she may be able to establish that she has been deprived of a legal right to maintain her relationship with the child, she can proceed with her action to enforce this right.

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A mother's children from her first marriage were designated by her as "children of the marriage" in her divorce proceedings from her subsequent husband, stepfather of the children. The trial court awarded joint custody to the stepfather, and the mother consented to this award. Later, she challenged this custody determination on jurisdictional grounds. The California Court of Appeal stated that the mother's consent to the joint custody determination precluded her from challenging the order. Further,

it found that the trial court did not lack jurisdiction to hear or determine the case, although it may have exceeded its statutory authority in awarding joint custody to the stepfather. It asserted that to allow the mother to have the power to undo an agreed upon custody arrangement by claiming lack of jurisdiction would violate state policy of continuing the established custody arrangement unless changing conditions indicate that a change in the custody would be in the child's best interests.

More on Relocation

The Vermont Supreme Court reversed an order requiring a divorced mother who had primary custody of the children to live no more than four hours drive from the father's home. It stated that the lower court had not shown sufficient deference to the mother's decision to relocate to Iowa. The state policy of maintaining maximum contact between both parents and the children does not nullify the custodial parent's reasonable decisions (in this case to relocate to

Iowa to attend law school). Concerning the custody modification action, the Supreme Court stated that the father must show that relocation would so compromise the children's best interests that primary custody should be awarded to him. Additionally, it dismissed the mother's claim that making retention of custody conditional upon restricting her ability to relocate was unconstitutional in that it violated her right to travel.

BRICKLIN PERCEPTUAL SCALES

CONSTRUCT VALIDITY STUDY

Request for Raw Data

A research project attempting to examine the construct validity of the Bricklin Perceptual Scales is seeking raw data from practitioners who administer the B.P.S. as part of a comprehensive custody and access assessment. The study is being conducted under the auspices of the University of Detroit-Mercy Clinical Psychology Department as part of a doctoral dissertation. This research project also has the support of Dr. Barry Bricklin and Village Publishing.

Necessary data include only the child's age, sex and raw B.P.S. scores, and total confidentiality of all data is assured. Copies of B.P.S. Scoring Summary sheets containing only age, sex and raw scores can be mailed to:

Timothy M. Baker, M.A.
2324 Woodlawn Ave.
Windsor, Ontario
CANADA, N8W 2H5

or call (519) 253-4501 evenings, Eastern time, for more information. Payment of $0.25 per Scoring Summary sheet (to help cover photocopying costs) and/or a brief summary of the study results will be returned to all contributors upon request.

PROFESSIONAL ACADEMY OF CUSTODY EVALUATORS

A private, non-profit membership and registration organization for Custody Evaluators ONLY. The corporations' Vanguard Period is now in effect. Request your free application and brochure.

PACE
211 Penn's Court
South Main Street
Doylestown Borough, PA 18901
(800) 633-PACE (7225)
(215) 794-8400
FAX (215) 794-3386 FAX

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