The Psychological Evaluation in Child Custody Cases

The purpose of this paper is to provide a framework for understanding this psycholegal situation that both sides now confront. To accomplish this, a historical context will first be presented to illustrate the increasing need for inclusion of psychologists and other mental health professionals in custodial and visitation determinations. Next, the difficulties involved with including psychologists and psychological findings and recommendations in the legal environment will be examined. The purposes and components of the psychological evaluation will then he discussed, along with how well it can meet the demands of custody cases. Associated with this are the factors considered most relevant to custody determinations by the courts.

The Psychological Evaluation in Child Custody Cases

Written by: David S Wachtel, Ph.D.

(Originally published in the Texas Academy of Family Law Attorneys Newsletter, May, 1995).
Initially posted on on 11/05/2006.


The relationships between the legal system and mental health care providers have become increasingly interconnected in recent years.  The increased strain on the family and the emergence of the “disposable society” have resulted in overwhelming numbers of divorces, re-marriages and blended families having become much more commonplace and acceptable.  As a consequence both legal and mental health care professionals have struggled to meet these families’ needs.

The purpose of this paper is to provide a framework for understanding this psycholegal situation that both sides now confront.  To accomplish this, a historical context will first be presented to illustrate the increasing need for inclusion of psychologists and other mental health professionals in custodial and visitation determinations.  Next, the difficulties involved with including psychologists and psychological findings and recommendations in the legal environment will be examined.  The purposes and components of the psychological evaluation will then he discussed, along with how well it can meet the demands of custody cases. Associated with this are the factors considered most relevant to custody determinations by the courts.

A Historical Context

Presumptions regarding child custody have undergone significant changes since the end of the 19th century.  As Munsinger (1991) has noted, prior to that time courts would automatically award custody to fathers based heavily on economic matters and the needs of the father.  By the end of the 19th century and continuing until the 1970s, the “tender years doctrine” emerged as the prevailing presumption in awarding custody.  This reflected a fundamental shift towards primary concern with the child’s needs rather than the parents’. It also presumed that mothers were intrinsically better parents–particularly for younger children–and were usually awarded custody.  By the l970’s the “best interests of the child” standard had adopted an “indeterminate” approach that rejected any automatic preference based upon gender and required examination of the child(ren)’s relationships with both parents in determining custody (Melton, Petrila Poythess, & Slobogin, 1987).

The increased concern for the child’s best interest is evident in various legislative acts over the past 25 years. This is first evident in the Uniform Marriage and Divorce Act developed and adopted in the 1970’s. This delineated some of the relevant factors to be considered in determining best interest.  As summarized by Ackerman and Kane (1993), these include: (1) the wishes of the parents regarding custody; (2) the wishes of the child; (3) the interactions and interrelationships of the child with parents, siblings, and any other significant person in his/her life; (4) the child’s adjustment to hone, school and community; (5) the mental and physical health of all parties; and (6) any other relevant factors.

A second significant legislative effort was the development of the Uniform Child Custody Jurisdiction Act (UCCJA).  Originally enacted by the Texas Legislature in 1983, it provided for the establishment of the Suit Affecting the Parent-Child Relationship (SAPCR).  This independent cause of action “requires the courts consider all issues associated with the children of a divorcing family separately from the divorce action itself” (Munsinger, 1991, p. 8).  Further as stated in section 11.51(6), it is intended to “discourage continuing controversies over child custody in the interest of greater stability of home environment arid of secure family relationships for the child”.

A third significant step in the efforts to better meet the needs of children in child custody disputes occurred in September of 1993.  As of that date, Psychologists were specifically included in the Texas Family Code for the first time.  These changes included: (1) access by managing and possessory conservators to psychological records in addition 10 medical, dental and educational; and (2) the right of conservators to consult with psychologists as well as other health care providers.  Bray (1993) notes three other significant changes that are relevant to this paper.  The first involves greater encouragement of contact between the child and the nonresidential parent to “optimize the development of a close and continuing relationship…” (TFC Section 14.032.(a)).  The second change is the explicit inclusion of stability of the home environment in the criteria for determining custodial arrangements (TFC Section 14.021.(a)).  And finally, consideration of develop-mental status of the child as a factor in determining terms of possession is now included (TFC Section 14.032.(c)).

Particularly as reflected by the recent changes in the Texas Family Code, efforts to act in the best interests of the child recognize and require the involvement of psychologists and other mental health care providers in child custody disputes.  It is the very factors that must be considered by the courts that are the focus of clinical practice and research (e.g., family dynamics, child development, trauma, normal and abnormal development, divorce, parenting, etc.).  At the present time, however, two major factors are frequently cited as continuing to limit the involvement of mental health experts in the legal system.  The first is most clinicians have little experience or training in dealing with legal issues and the courts (Munsinger, 1991).  A major consequence of this is the difficulty in effectively communicating relevant clinical material within a framework and language that judges and attorneys can understand and apply.

The second major factor centers around assessment issues. Training in clinical assessment and the most-frequently used personality tests tend to emphasize psychopathology rather than healthy functioning (Grisso, 1986; Melton et al., 1987).  The perceived lack of adequate measures for assessing parent-child relationships, parenting abilities, and child development–central issues in determining custody and visitation arrangements–also perpetuate the limited utilization of both professionals and findings in these cases (Munsinger, 1991; Pope, Butcher, & Seelen, 1993).  In addition, the reluctance of many clinicians to enter the adversarial legal context also limits the availability of many competent and caring professionals who could meaningfully contribute to the custody decision-making process.

The Psychological Evaluation

Despite the reservations discussed above, psychologists and other mental health care providers can make meaningful contributions in custody cases.  To do so, the psychologist must focus primarily on assessing the parent-child relationships, the developmental needs of the children, and the maturity of the parents (Gordon & Peek, 1989).  In order to answer these questions, any evaluation must be comprehensive (Melton et al., 1987).  To be comprehensive, however, any evaluation intended to assess the best interests of the child must range from an examination of internal experience to overt behavior.  The discussion that follows will be from the perspective of the author as a Clinical Psychologist and the frequent use of psychological tests in custody evaluations.

Ackerman and Kane (1993) suggest a three-stage model of psychological evaluations.  The first stage involves the gathering of information from all relevant sources.  The major activities of this stage include: (1) diagnostic interviews with all children and parents or caretakers, both individually and conjointly; (2) administration and scoring of age-appropriate questionnaires and tests; (3) interviews with extended family members, teachers, doctors, agencies, neighbors, etc., who may have useful information; (4) and collection of other collateral information (e.g., school records, previous evaluations, legal documents).

As noted above, an essential component of the psychological evaluation is the selection of appropriate psychological tests to help to determine the quality of parenting, the parent-child relationships, and the psychological functioning of the parents and the children.  A comprehensive battery accomplishes these objectives through the content and the structure of the tests.  The relevance of test content is more obvious. Parenting questionnaires, personality tests, structured diagnostic interviews, and specifically-designed custody-oriented assessment instruments will provide both factual and clinical information.

Test structure and its relationship to answering the important questions of custody determinations is less clear.  In a comprehensive evaluation the tests employed assess a range of behaviors (verbal, visual, perceptual, motoric) under varying conditions of structure and ambiguity.  The personality tests most-commonly employed in custody evaluations provide a useful illustration of this issue.  Tests such as the Minnesota Multi­phasic Personality Inventory (MMPI/MMPI-2) and the Millon Clinical Multiaxial Inventory (MCMI-II, MCM-III) are considered to be objective personality tests in that they require a specific response (true or false).  Tests such as the Rorschach Inkblot Technique and the Thematic Apperception Test (TAT) are referred to as projective personality tests because of their open structure and free-association character. Differences in the quality of performances on more-structured versus less-structured tests have been found to have implications for diagnosis and treatment of psychopathology.  They can also have direct implications for evaluating an individual’s capabilities for handling different types of stress in different situations such as is often required of parents.  More-detailed discussions of the advantages and drawbacks of psychological tests can be found in Ackerman and Kane (1993) and Pope et al. (1993).

The need for custody-specific assessment during this stage cannot be emphasized too strongly.  As Melton et al. (1987) point out, interviews that focus on all parties perceptions of their relationships, custody preferen­ces, and any special needs of the children must be conducted.  Other areas that should be covered include:  each parent’s perceptions of his/her strengths and weaknesses as a parent; knowledge of the child’s develop­ment and general child development issues; availability and accessibility to the child; discipline beliefs and strategies; values and standards around issues of achievement, religion/spirituality, sexuality, nudity, and profanity; effect of separation and divorce on the child; and handling dating and new adult relationships. Custody and visitation preferences and attitudes toward the other parent must also be examined.

The second stage of the evaluation is the processing of the information that has been gathered.  The critical element involved in this stage is the capacity of the psychologist to differentially weight the significance of the different data received.  As Hodges (1991) discusses with regards to consideration of testing, no custody evaluation should be based solely on test results (p. 127).  At the same time, singular factors such as sexual abuse or family violence obviously carry overwhelming implications for custody and visitation and should not be minimized.

The final stage Ackerman and Kane describe involves the preparation and presentation of findings and recommendations, usually in written report form. This typically consists of the referral information; the dates, procedures, and individuals evaluated, the findings about each family member; the relationships between the parents and the children; the relationships between the parents; and recommendations regarding custody and visitation.

In presenting findings in custody evaluations about the parents psychological functioning, it is essential to apply those findings to the critical issues of parenting capabilities.  I believe that to only report the parents’ test-taking attitudes, general personality organization and functioning, and psychopathology (if present) perpetuates the perceptions of limited utility of the psychologist, the testing, and the psychological evaluation.  Such misperceptions are more-seriously perpetuated by talking about the individual in the most-general of terms or by simply quoting from a computer-generated report.  As is true of any evaluation, the psychologist (as well as any other clinician) must present findings in ways that meet the specific needs of those who requested it.  Ackerman and Kane (1993) provide an excellent example of how MMPI findings can easily and effectively be presented in a relevant manner to addressing parenting concerns in custody disputes.

Munsinger (1991) provides an excellent outline for the preparation of evaluation findings in custody cases. He recommends developing formulations based on the factors identified by the Texas Supreme Court as relevant to the best interests of the child.  He suggests that the psychologist address those factors by asking:  (I) which parent is best able to meet the emotional and physical needs of the child now and in the future?; (2) does either home pose a threat to the child?; (3) which parent possesses good parenting attributes and abilities?; (4) is assistance available to the parent now and in the future?; (5) what are the parents plans for the child now and in the future?; (6) which family is more stable?; (7) are there parental acts or omissions that are detrimental to the child?; (8) which parent has been the primary caretaker in the past?; (9) what are each parents moral/ethical values?; and (10) is the family a good prospect for joint custody?

The recent changes in the Texas Family Code (1993) offer other guidelines for psychologists in preparing and presenting evaluation findings in a manner that judges and attorneys could easily use. These include: (1) to what degree does the parent support and encourage the child’s relationship with the other parent?; (2) how stable an environment does each parent provide?; and (3) how well can the parent respond to the developmental status of the child?

Concluding Comments

This paper has examined the changes in the psycholegal context of child custody cases.  The continued evolution of the concept of the best interest of the child reflects the courts’ needs for greater information regarding family dynamics, child development and the effects of different living arrangements on children and their parents.  Greater involvement of psychologists and other mental health care providers in child custody disputes appears essential in order to achieve these goals.  Areas of legitimate concern exist regarding the quantity and quality of the information clinicians provide, such as the limitations of current assessment instru­ments.  Efforts to address these concerns have been actively pursued.  With respect to ensuring that qualified professionals conduct these evaluations, Munsinger (1991) described the standards for child custody evaluators that have been proposed by the Interdisciplinary Committee on Child Custody (1986).  Ackerman and Kane (1993) reported on the efforts of the American Psychological Association Committee on Professional Practice and Standards to develop child custody evaluation guidelines.  Similarly, efforts continue to revise psychological tests frequently used in custody evaluations (Pope et al., 1993) and to create new custody-specific instruments (Ackerman and Kane, 1993; Gordon and Peek, l989).

As has also been discussed in this paper, a comprehensive evaluation conducted by a competent psychologist can address the issues of parenting abilities and the quality of the parent-child relationships and provide detailed recommendations for custodial and visitation arrangements.  Further, research findings are being utilized in the formulation of social policy, legislation, and programs specifically designed to help divorced families.  It is the joint responsibilities of the legal and mental health professionals to utilize the custody-specific assessment and report-preparation guidelines discussed in this paper and elsewhere to improve communication of needs and information.  In this way the families they serve can optimally benefit from their respective areas of expertise.

Copyright (C) l994, 1995, 2006 by David S. Wachtel, Ph. D.  All rights reserved.




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