CUSTODY EVALUATIONS : Presenting the Data to Court

CUSTODY EVALUATIONS Presenting the Data to Court

Carole Brown

In presenting the evidence to court, a custody evaluator has to consider three distinct audiences: the judge, the legal representatives, and the family. Each will look for different things in the evaluation report, each may interpret what is written differently, and each may have different expectations. Consequently, the evaluator h m a number of roles and has to adopt a variety of strategies that are sensitive to the needs of the court and the client. At the same time, the evaluator must be able to withstand the constraints and scrutiny that are part of the legal process. This article examines the dificulties this poses for the evaluator in preparing for and presenting evidence to court and looks at some of the ways problems can be avoided.

Custody evaluations have different meanings for each of the audiences they will reach. For the family involved, the custody evaluation represents a highly stressful event, something that will have a lasting impact on their lives and is an unwelcome intrusion into their otherwise private world. For the adults, it is aprocess during which their capacities as parents and as individuals will be scrutinised with a clarity and objectivity that they probably will not have experienced before. The children in these families are caught up in a whirlpool of allegations and counterallegations, they are often struggling with the expectation of both sides that they will favour one parent over the other, and sometimes they are bewildered and confused by their parents’ separation and about the events accompanying the fully contested custody dispute. For them, the evaluation has the potential to disorganize their protective functions and turn an otherwise secure and nurturing environment into a hostile one.

The judge hearing the case, like the evaluator, is a neutral, nonpartisan participant in the custody dispute. Like the evaluator, the judge will take care to preserve that neutrality both in appearances and in the way the case is conducted. Judges have certain legislative constraints that, where statutes exist, either define the scope of the inquiry or dictate certain legal presump- tions that form the starting point for the inquiry (Schultz, Dixon, Lindenber- ger, & Ruther, 1989). Because the decisions of trial judges are subject to

Author’s Note: This article was presented as a paper at the First International Symposium on Child Custody Evaluations, November 5-7, 1994, Tucson, Arizona.

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review on appeal, they tend to conduct themselves with a view to the possibility of such an appeal, hence the way they receive, interpret, and integrate information in their decision is a specialised area that the evaluator must be cognizant of.

Lawyers representing the parties have a complex function. There is no doubt that they must represent the party who has engaged them, but they, like the judge and the evaluator, must have regard to the best interests of the child. They are nonneutral and partisan. Their view of the child is, in the first and formative instance, through the eyes of their client, though later a further window is provided by the evaluator, and the legal representative for the child if the child is separately represented. The evaluation report will be viewed by the lawyers as either favourable, unfavourable, or a combination of each. This will determine what they will want to highlight or to refute. In a sense, their task will be to elaborate on or challenge each evaluative statement depending on whether it assists or detracts from their client’s case.

All in all, this makes for a diverse audience, each looking for something different from the custody evaluation, each with different sets of assumptions and constraints, and each bringing a different orientation and perspective when it comes to understanding, evaluating, and making use of the information in the report.

In this difficult milieu, the needs and constraints of the evaluator cannot be ignored. The evaluator is bound by a professional code of ethics and professional standards and has to deliver amessage to amixed audience. This necessitates the translation of complex psychological concepts into a readily understandable language without loss of meaning and without leading to misunderstanding because of lack of clarity or because of ambiguity. All of this is against the background of a societal and/or legal mandate to keep the welfare of the child paramount.

Additionally, the report has to be written with the knowledge that it will live on long after the case is determined by a judge or settled among the lawyers. Some clients will carry these written and spoken words for years to come, and in some cases this will serve to keep their anger alive if they feel the process has been biased or their perspective not conveyed or understood by the evaluator. Children also will have to live with the comments they have made or not made to the evaluator and the recorded observation of the affection they showed to the other parent in the evaluator’s presence.

Given the characteristics of these differing audiences and given the context in which the evaluation is done, the task of presenting the data often requires that the evaluator perform a number of different roles and adopt a variety of strategies that are methodologically sound but at the same time are

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sensitive to the needs of the court and the client and in accord with the constraints that the legal process imposes.

EDUCATIONAL ROLE OF THE CLINICIAN

In avery subtle way, evaluators educate judges, lawyers, and parents about the postdivorce needs of children, about positive parenting styles, and about factors that need to be taken into consideration in future arrangements for children. To do this effectively, the evaluator needs to be appraised of current research so that in making an assessment of the potential impact of alternative arrangements on the child, the advice given is consistent with empirically validated findings wherever possible. This is not to suggest that in writing the report, research evidence should be quoted to support a conclusion, but rather that knowledge of the relevant research should be evident in the reasoning that leads to the conclusion.

For example, in evaluating visitation options in a high conflict family, the evaluator could say with confidence that “the level of conflict in this family suggests that a visitation schedule involving less transitions between resi- dences and less interchanges between the parents would be more beneficial to this child,” provided the evaluator had assessed that the child had been adversely affected by the parental conflict. Embedded in this statement is a comment about the impact of conflict on children and the likelihood that this conflict will be vented within the visitation context.

However, the critical element in deciding to make such a statement in a particular case is whether or not the evaluator has found evidence of the harm being done by the parental conflict on the child.

FACTORS THAT AFFECT THE LONG TERM ADJUSTMENT OF CHILDREN

Perhaps the most important outcome of both the long-term and short-term effects of divorce on children is the variability in their responses to their parents’ separation. Hence, in determining the best possible outcome for the child, the evaluator has to be careful not to generalise beyond the particular characteristics of the child and the child’s situation. However, knowing the factors that can cause adjustment problems in the child will help formulate the hypotheses that then have to be meticulously tested with information from the parents, school teachers and other professionals, psychological tests, and observations.

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What follows is not an extensive review of the research on the effects of divorce on children. For more detailed reviews, see, for example, Melton, Petrila, Poythress, and Slobogin (1987), Bonney (1993), and Brown (1994).

TBE IMPACT OF CUSTODY AND ACCESS ARRANGEMENTS ON CHILDREN

Perhaps the three most important factors in the child’s adjustment to separation are (a) the parent’s psychological functioning, (b) the level of conflict between the parents, (c) and the quality of the parent-child relationship.

There are a number of studies that show that parents who are anxious and depressed and who suffer from substantial emotional or personality distur- bances are likely to have disturbed children (Emery, 1982; Guidubaldi & Perry, 1985; Kline, Tschann, Johnston, & Wallerstein, 1989; Wallerstein & Kelly, 1980). Furthermore, intense conflict between the parents has a high likelihood of disorganising the protective functions of the parent as caregiver, but, more fundamentally, it impairs their basic judgment in their caregiving role (Johnston, Campbell, & Mayes, 1985). This is true of nondivorced high-conflict families and divorced high-conflict families (Emery & DiLalla, 1984; Emery & O’Leary, 1982; Ochiltree & Amato, 1985). Indeed, Emery (1982), in reviewing the literature, suggests that interparental conflict, not the separation, may be the primary reason for the association found between divorce and long-term problems in the child. The negative effect of interparental hostility on children’s behavior adjustment has now been well docu- mented and, as authors such as Johnston (1994) point out, this is even more pronounced when children themselves have been abused.

Where the quality of the relationship between the parent and the child is mutually satisfying, this seems to serve as a buffer for the stress and disorganisation surrounding the separation (Heatherington, 1989). During the divorce transition, parents may be less available to their children emo- tionally and less consistent in applying standards. Yet their ability to provide a loving and supportive environment and the quality of the parent-child relationship assists the child to adjust to the divorce (Hess & Camara, 1979; Heatherington, Cox, & Cox, 1978).

Frequent visitation between the child and the noncustodial parent has been considered important to the well-being of the child. However, there has been some research support for the proposition that frequency of contact between the child and the noncustodial parent is not related to any child outcome measures (King, 1994).

It has long been the experience of clinicians that visitation works well for some children but is distressful for others. Clinicians will also say that for high-coflict families, access is difficult for children. This has been demon-


strated empirically by Johnston, Kline, and Tschann (1989) with a sample of children between 1 and 12 years old and by Buchannan, Maccoby, and Dornbusch (1991) with a group of 522 adolescents. Both studies revealed that more frequent access led to distress and behavioral adjustment problems in highly conflictual families.

Conflict aside, however, there are several studies that show that for the majority of families, visitation is seen as a positive experience by both children and paents alike (Gibson, 1992; McDonald, 1990; Wolchik, Braver, & Sandler, 1985). One conclusion that can be drawn from this conflicting data is that there are two distinctly different sets of circumstances operating for high-conflict families compared with moderate- to low-conflict families. Children can be caught up in and can witness parental fights in making transitions between their parents’ homes to such an extent that visitation is a destructive experience (Benedek & Benedek, 1979; Wallerstein & Kelly, 1980). Frequent visitation arrangements are beneficial for children in low- conflict families, but such arrangements can have the opposite outcome for children in high-conflict families. This is an important consideration that should be taken into account in decisions about what is in the best interests of the individual child.

Similarly, joint custody has been found to be beneficial for children whose parents are highly cooperative but not where there is a lack of cooperation between the parents (Buchannan et al., 1991). Maccoby and Mnookin (1992) also note that where there is high conflict between the parents in joint physical custody arrangements, there is a high degree of legal conflict as well. This led them to caution against “the use of joint physical custody incircumstances where there is a great degree of conflict between the parents” @. 293).

DRAWING CONCLUSIONS

Each case and each child is different. Hypotheses about the impact on the child of possible alternatives need to be carefully evaluated in terms of all of the evidence. Like developmental guidelines, evidence of children’s reac- tions to divorce suggest what can be expected given certain sets of circumstances, but the research findings cannot be viewed as a formula.

THE EVALUATOR’S RESPONSIBILITY TO THE COURT: WHAT WJLLTHE JUDGE LOOK FOR IN THE REPORT?

The evaluator and the judge may not always share the same views as to what is important in determining the best outcome for a child in a custody

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dispute. Given their knowledge of the research discussed above, most evaluators would consider that the relationships between the child and other family members or other significant people are priority factors to be taken into account in decisions about children. Settle and Lowery (1982), in a study that may now be a little dated in some respects but nonetheless worth mentioning, took the ten factors identified in state statutes that must be taken into consideration when making custody decisions, expanded these, and surveyed 57 judges and 23 commissioners on the importance of these factors.

The two items that judges considered to be significantly more important than the others were the mental stability of each parent and each parent’s sense of responsibility to the child. In terms of family relationships, it is interesting to note that placing the child with the parent of the same sex was considered the least important, and being the child’s natural parent was considered more important than the parent’s affection for the child. However, the parent’s affection for the child, keeping the child with siblings, and keeping a young child with the mother were ranked as relatively important.

Another interesting finding in the study was that in awarding custody to a father or a mother, the judges applied different criteria in assessing the parent’s moral character. Whereas some characteristics such as drug and alcohol abuse, dishonesty, and the abuse of the child were commonly seen as faults in both sexes, fathers were deemed to be morally deficient for not providing for their families, for committing rape, for incest with the child, and for lewdness or exhibitionism. Adultery and prostitution were cited as evidence of a mother’s moral deficiency.

Overall, judges were most concerned that the custodial parent be mentally stable, responsible, and have conventional values. They responded that they found it very difficult to ascertain which parent was the more suitable custodian of the children and that they frequently felt helpless in making a really good decision. Many of the respondents indicated that after taking everything into consideration, the final decision was made on their gut reaction to the individual case.

Lowery (1985) gave a similar, but expanded, version of the Settle and Lowery (1982) items to a group of psychologists and social workers. Like the judges, this group saw the parents’ sense of responsibility to the child and the parents’ mental health as important in their recommendations. They differed with the judges, however, in giving lower importance to the parent’s biological relationship (when the parent was a stepparent) and lower importance to keeping young children with the mother. They also gave the parent’s moral character and the parent’s ability to provide stable community involvement less priority than did the judges.


In a Canadian study (Parry, Broder, Schmitt, & Saunders, 1986), a small group of clinicians were surveyed (14 in all). They cited the quality of the child’s attachment to the parent, the child’s wishes, and the need for continuity of care as being the primary factors that influenced their custody recommendations.

In an Australian study, 249 judgments in fully contested cases in the Family Court of Australia were examined to determine what factors influenced the custody outcome (Family Court of Australia, 1992). As expected, and in line with a custody study by the court 10 years earlier, mothers were granted sole physical custody of all children in the family (in 60% of the cases) more often than were fathers (in 31% of the cases). Joint physical custody (l%), splitting the children between the mother and father (5%) and awarding custody to someone other than the parents (3%) accounted for the remainder of the decisions.

The maternal-preference presumption was not supported, in that women were less likely to be given custody by the judge than indicated by the general distribution of custody by the consent of the parties, which is predominantly with the mother. However, the study did give some support for the tender- years presumption, as the results indicated that younger children (8 years and under) were more likely to be retained by the mother, and this was particularly so of children under 4 years, where custody orders predominantly favoured the mother.

The sex of the children, size of the family, socioeconomic factors, and cultural factors, where there was a cultural mix in the marriage, did not influence custody outcomes. However, the existence of established custodial arrangements did influence the decision. Judges preferred to maintain the status quo in 68% of judgments. Furthermore, the longer the custodial arrangements were in place, the less likely they were to be changed by the court.

For an evaluator writing a report for a judge, it is important to know the likely outcomes. This will serve as a starting point from which to argue the case for or against certain options depending on whether they would be in the child’s best interests or not. For example, in preparing a report for the Family Court of Australia, I collated and reviewed the data on the child-his wishes; his relationship with each of his parents; his emotional and social adjustment; his progress at school-and reviewed the existing joint physical custody arrangements between the parentsaeir proximity to each other and to his school; their capacity as parents; the level of conflict; and the degree to which they were able to cooperate-and came to the view that a joint physical custody arrangement would suit this particular child and family. The

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knowledge that joint physical custody was an option that was not favoured by the court influenced the issues that needed to be addressed and argued in the report, influenced the evidence that had to be put forward for and against the custody options, and influenced the prominence that had to be given to that evidence.

The studies and examples cited in this section merely serve to illustrate the point that what the evaluator may rank as important is not necessarily what the judge sees as important to the decision about the child nor what either group sees as the best outcome for the child.

Lowery (1984) summarises the difference well. For the mental health professional, the evaluation question becomes ‘Which parent is a better match for having primary responsibility for the child?’ The judge, on the other hand, is more likely to ask ‘Which parent is a better adult?” To be persuasive, the mental health professional must convince the court that the qualities of the relationship between the parent and the child have a greater impact on the child’s well-being than do the qualities of the adults as individuals. This may require “educating” the court about the needs of the child as far as what qualities in the parent will be the most beneficial to the child’s adjustment and future development.

INFLUENCE OF LEGISLATIVE REQUIREMENTS ON THE ASSESSMENT REPORT

In recent years, the presumption that the custody of a young child should normally go to the mother has largely disappeared from legislation. State, province, and national legislation (United Kingdom and Australia) charac- teristically provide that custody disputes between parents must be resolved through a case-by-case determination of what constitutes the child’s best interest, with no preference being given to either parent simply by reason of gender (Maccoby & Mnookin, 1992). In the last decade, a number of states have taken the additional step of authorising and even encouraging joint custody, and there have been changes to the language of the legislation in some states in the United States and in the United Kingdom (UK Children Act, 1989)-and in Australia, reforms are being considered in Parliament (Family Law Reform Bill 1994)-in an attempt to break with the traditional notion that one parent would be the child’s custodian and the other parent would simply have visiting rights.

While keeping the best interests of the child as the paramount consideration, most legislation in the United States, Canada, the United Kingdom, and


Australia now specifies factors that must be taken into consideration in determining this (see, for example, Brown, 1994; Schultz et al., 1989; Weithorn & Grisso, 1987). Section 402 of the federal Uniform Marriage and Divorce Act (1979) is cited frequently for specification of those factors guiding judicial consideration of the child’s best interests, in part because it has served as the model for the statutes of many states (Schultz et al., 1989, Wyer et al., 1987; Weithorn & Grisso, 1987).

The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including: (1) the wishes of the child’s parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his

siblings, and any other person who may significantly affect the child’s best interests;

(4) the child’s adjustment to his home, school, and community; and (5) the mental and physical health of all individuals involved.

The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.

Commonly, what is required to be considered in determining the best interests of the child in the United States, as exemplified by the state of Michigan (Sec. 3. Child Custody Act of 1970, Michigan State), considered a leader in this field, is

(a) The love, affection and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care and other remedial care recognised and permitted under the laws of this state in place of medical care and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of any existing or proposed home or homes. (f) The moral fitness of the parties involved. (g) The mental and physical health of the parties involved. (h) The home, school, and community record of the child. (i) The reasonable preference of the child if the court considers the child is of

sufficient age to express preference. (j) The willingness of each of the parties to facilitate and encourage a close and

continuing parent-child relationship between the child and the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.


(1) Any other factor considered by the court to be relevant to a particular child custody dispute.

Australian legislation (Family Law Act, 1975), which closely resembles the UK legislation, requires the following:

The welfare of the child must be the paramount consideration. The court shall consider any wishes expressed by the child and give those wishes such weight as appropriate in the circumstances of the case. The court shall make the order that is least likely to lead to the institution of further proceedings.

In making the order, the court has to take the following into account:

the nature of the relationship of the child with the parents and other significant persons; the effect of separation of the child from either parent or person with whom the child has been living; the effect of any changes to existing arrangements; the parent’s attitude to the child and to the responsibilities of parenthood, the capacity of each parent to provide adequately for the needs of the child, including the emotional and intellectual needs of the child; the need to protect the child from abuse or behavior that psychologically harms the child; any other fact or circumstances the court sees as relevant to the welfare of the child.

In addition to these factors, changes to Australian legislation before Parlia- ment would require the following to also be considered:

any family violence involving the child or a member of the child’s family; any family violence order that applies to the child or a member of the child’s family; the need to protect the child from physical or psychological harm caused, or that may be caused, by:

(i) being subjected or exposed to abuse, ill-treatment, violence, or other

(ii) being present while a third person is subjected or exposed to abuse,

the child’s age, sex, and background and any other characteristics of the child that the court thinks relevant.

behaviour; or

ill-treatment, violence, or other behaviour;

The last of these criteria requires the court to take into account the cultural background of the child. This is becoming increasingly important in Australia


THE GROWING IMPORTANCE OF CONSIDERING THE WISHES OF THE CHILD

In recent years, Canada, the United Kingdom, and Australia have all become signatories to the United Nations Convention on the Rights of the Child (signed in New York on November 20, 1989). Article 12 of this convention has heralded a new awareness and obligation in these countries to take the wishes of a child into consideration in any judicial or administrative proceedings, given that they are sufficiently mature to express a wish.

Article 12 states:

1. State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

The United States has not ratified the Convention on the Rights of the Child. However, the principles articulated in Article 12 are nonetheless challenging for countries that have not ratified the Convention as well as for those that have.

THE STRUCTURE OF THE REPORT

Given the common themes being expressed in these statutory requirements, or in the absence of such statutory requirements, in the light of case law themes, it is appropriate that the evaluation address these fundamental issues as important to any consideration of the child‘s best interests. Often it is helpful to the court and to the lawyers if the report follows a predictable format under easily identifiable headings, such as the following:

background and issues; present family groupings and locations;

0 theparents; the parents’ present relationship; the parents’ relationship with the children; the children’s developmental level and degree of adjustment; the children’s needs, attachments, wishes (where appropriate), and perceptions;


sibling and peer relationships; the extended family and significant others; the parents’ plans for custody andfor visitation; options; summary, recommendations, andlor conclusions.

Though these are the sorts of headings that are sometimes used, there is also a substructure to the report that flows from a formulation of the key questions that need to be addressed. The answers to these questions form the conclusions that are drawn from the data presented in the report.

The report should maintain a focus, it should have internal coherence and consistency, it should be clear and succinct. It should be complete in that it should not leave questions unanswered or omit important data. Most important, it should be as reliable and as valid as the fluctuating behavior of the family in transition permits.

CONVEYING THE INFORMATION TO THE FAMILY

It is important to clarify at the outset with the clients that any information obtained during the evaluation can be reported to the court. It is also important, on the other hand, to point out that the purpose of the report is not to record word for word what is said during interviews. Instead, the report is an evaluative assessment that is based on, and supported by, what the reporter hears, observes, and deduces from psychological tests. Off-the-record comments cannot be honoured. Deliberately omitting important information from a report can create significant problems. Likewise, recommendations made with inaccurate or insufficient information are neither credible nor useful.

On reading the evaluation report, the parents should not be surprised by its contents. Just as important as writing the report is giving parents feedback about what conclusions and recommendations will be made. This can be linked with educating them about any professional assistance that may be required for their children after the hearing.

The use of language is very critical to the way the report is perceived. When labels are attached to behaviors, they need to be carefully thought through, as they can be challenged and they can have a significant emotional impact on family members. Take, for example, the positive-negative differ- ences between “spontaneous” and “chaotic” and “structured” and “rigid” to describe combinations of observed behaviors in family groupings that could be interpreted either way. Is the household a flexible one or a laissez-faire one? Does the parent have a firm parenting style or is the parent an authori-


tarian parent? What evidence led to this particular conclusion rather than the alternative? Can these labels be avoided?

Meyer Elkin (1982) also drew attention to the impact of language in a broader sense:

One of the harsh aspects of divorce law are the words used. A word is a symbol; a symbol has the power to generate strong emotions and attitudes that can heal- destroy. A symbol may offer hope-or despair. It is therefore time for the law toreassess its symbols in family law and to askitself, “Does this symbol help or hurt the family?” (p. 52)

In presenting the data to the family, the evaluator will need to ask the same questions. “Does this help or hurt the family?” Whereas it is not acceptable to leave important information out of the report for “therapeutic” reasons, it is possible, in most instances, to lessen the impact by careful wording.

The evaluator’s responsibility to the child is one of the things that creates the most difficulty during the writing of the report. This responsibility commences with the first interview with the child where the ground rules are laid. It is particularly important that the child understands that what is discussed will be seen by the parents as well as by the judge.

It is sometimes a temptation for the evaluator, with children who are not forthcoming about their perceptions and wishes, to encourage them to go beyond their comfort zone in revealing feelings about their parents and their situation. This temptation should be avoided at all costs as it may cause undue stress to an already traumatized child. This information can be gained in lots of ways: observations, tests, and less direct questions that focus on activities the child likes doing rather than on the parent the child likes doing them with.

Because of the power of the written word, children’s statements should rarely be quoted verbatim. Rephrasing what the child has conveyed, apart from being more evaluative or interpretive and hence of more use to the court, will lessen the potential for recrimination from a disappointed parent.

WHAT THE LAWYERS WILLLOOK FOR

The potential for a clash between the lawyer and the evaluator exists throughout the assessment process. However, it is perhaps most obvious when the evidence is presented and tested or challenged in court. Weissman (1991) makes the point that attorneys are advocates trained to be skillful in persuasion and committed to advancing clients’ causes. Although governed by ethical, legal, and professional codes of the legal profession and obligated to uphold principles of fairness in child custody disputes, attorneys are not

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obligated to know either mental health law or the rules that govern the conduct of mental health professionals.

In presenting the data, the evaluator will be mindful of the impact of his or her assessment on the parents and children and will be concerned that the protective functions that assist the children and the parents to adjust to the divorce are preserved. The lawyers, on the other hand, will be concerned with biases, ambiguities or imprecise language, and the validity of the evidence.

Often, bias is inferred merely from the amount of time spent in interview- ing each parent. This information is often presented by listing the interven- tions at the commencement of the report. Bias may also be inferred from the amount of space devoted in the report to presenting the views and expectations of each parent. Hence interviews have to be balanced, as does the presentation of both parents’ views. If one parent has been seen more often than the other, the reason for this should be acknowledged in the report.

The rational-logical emphasis of the legal system means it is not an easy atmosphere in which to work for the clinician who has taken on the role of evaluator. Like the judge, the lawyer will look for internal consistency, validity, and conclusions and recommendations that are supported by the evidence. If the evidence is incomplete, the lawyer will make a feast of refuting the conclusions if they have gone beyond the scope of the investiga- tion. If it has not been possible to cover all aspects in eliminating competing hypotheses, then it is best to say so by qualifying the conclusion. It may also help the lawyer to elicit the missing information from the parties or other witnesses in court. Not to acknowledge limitations detracts from the overall credibility of the evaluation. Not to support the conclusion through the development of a logical argument that is supported by the data in the body of the report detracts from what may be a sound assessment. The point is that the evaluation report has to look sound. It has to progress logically if the overall impression it is to leave on the reader is that it contains a sound assessment.

SUMMARY

In conclusion, Skafte (1985) captures the difficulty of the report-writing task and some of the dilemmas the evaluator experiences in distilling, synthesizing, and presenting the evidence:

Writing a custody evaluation report seems difficult only because it is difficult. We must summarize several weeks of intensive analysis into a few pages of words. We must express complicated, convoluted realities in simple, straight- forward terms. We must address three distinct audiences simultaneously. When

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it is finished, we are usually left with the feeling that the report could have been better if we had two extra weeks to polish up the style, or if we had five more years of experience in the custody field, or if the issues in this particular case had been more black and white. As it is, we have the best document we could produce under the circumstances. This feeling of mild discomfort underscores the reality of custody work. We feel unfinished because the human dramas we participate in are unfinished. We experience dissatisfaction because the court system we operate within is not satisfactory for solving these issues. Our skills seem incomplete because each family who touches us will add something else to our storehouse. (p. 200)

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Buchannan, C. M., Maccoby, E. E., & Dornbusch, S. M. (1991). Caught between parents:

Child Custody Act of 1970. Compiled Lavs Annofafed, 722.23. Elkin, M. (1982). The mission links in divorce law: A redefinition of process and practice.

Journal of Divorce, 6, 37-63. Emery, R. E. (1982). Interparental conflict and the childrenof discord and divorce. Psychological

Bulletin, 92,310-330. Emery, R. E., & DiWa, L. F. (1984). Divorce, children and social policy. In H. W. Stevenson

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Emery, R. E., & O’Leary, K. D. (1982). Marital discord and child behavior problems in an nonclinic sample. Journal of Abnormal Child Psychology, 12,411-420.

Family Court of Australia. (1992). Submission by the Family Court of Australia to the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Acr (b). Sydney, Australia: Author.

Gibson, J. (1992). Non-custodialfathers and access patterns (Research Report No. 10). Sydney, Australia: Family Court of Australia, Office of the Chief Executive.

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Carole Brown, Ph.D., is Principnl Director of Court Counselling with the Family Court of Australia, where she has worked for the past 15 years in clinical, policy, and management positiom.

Documents

CUSTODY EVALUATIONS : Presenting the Data to Court