“Ask Three Mentors” is a question-and-answer column, produced exclusively for Insights, that highlights the fact that members of AFCC are attorneys, judges, and mental health professionals.  Many of our most experienced members are committed to mentoring and passing on the wealth of knowledge they’ve acquired through years of work in the field of family law.  Each month we will pose a custody-related question to three members of our panel of exceptionally experienced and widely respected family law experts.  Our readers will then have the benefit of hearing the answer from the perspective of a judge, a mental health professional, and a family law attorney.  Please submit your questions for our Mentors here.  For biographies of our Three Mentors panel members, go to this page.

Judge Gould-Saltman

1.   Skimping on the analysis. If we break down a custody evaluation into 3 parts: narrative, analysis and recommendations, the analysis is really the part for which expertise is required. There may be a presumption that parents focus on the narrative (“Did the evaluator get what I told her correctly?”) and that an attorney will focus on any errors made there. In my experience, the “he said-she said” part of the report is in lieu of, or in addition to, any testimony that I am likely to hear as well. I appreciate that some expertise is required to know which questions to ask and how to follow up those answers. There may also be a presumption that judges just skip to the back to see what the result is that’s being recommended. Attorneys do that prophylactically because they need to let their clients know what was recommended before the client hears it from the other side. The real quality of an evaluation is demonstrated by the analysis. Once the facts are established in the narrative, I need to know what about those facts is relevant to parenting and how it is relevant to parenting. If you tell me that, I should be able to extrapolate one or more parenting arrangements that address those issues.

2.   Being unfamiliar with current social science literature. Sure, you’re focused on the family in front of you. But, “I’m an expert. Trust me,” is not an adequate answer to, “What do we know about parenting, given the facts you’ve uncovered, that supports the recommendations you’ve made?” An evaluator doesn’t need to be a researcher but, as an expert, an evaluator needs to know the difference between what used to be believed to be good or bad for children and what has changed over time about those beliefs. An evaluator needs to be able to meaningfully distinguish well-supported research from that which is not supportable (selective or inadequate population base, over-reaching conclusions from limited data, etc.). An evaluator should be able to identify the relevant literature that supports his or her conclusions but should also be able to identify research which controverts the conclusions (i.e. both sides of the issue) and explain why one way of addressing the issues in this particular case makes the most sense.

3.   When you’re a hammer everything looks like a nail. Sometimes an issue initially presents as significant and an evaluator explores hypotheses of what’s going on with this family based on that initial issue. A good evaluator creates multiple hypotheses about what’s going on with a family and explores each of them before trying to “line up the dots.” If an evaluator explores only one hypothesis, all incoming data will be seen through the prism of that pre-drawn conclusion. Data which comes in and confounds that pre-drawn conclusion is likely to be discarded or missed. A common mistake of evaluators is to follow only one path and build on the data that confirms that one path. Let the data drive the conclusions, not the other way around.

Dr. Philip Stahl

Evaluators are improving their data collection and recognizing the need for breadth in data gathering. For example, they are exploring critical issues such as the following:

  • Whether there is a history of domestic violence
  • Questions about the co-parenting relationship and how the parents have historically made decisions and resolve conflicts
  • Questions about parenting
  • Questions about the particular needs of the children, and
  • Questions about the issues specific to the evaluation, such as a relocation case, a refuse/resist case, or some other case specific questions.

However, from my work reviewing evaluations over the last 25 years, I have seen 3 critical and common mistakes:

1.   There is a lack of curiosity and depth to their inquiry. It is almost as if evaluators come armed with a set of questions ready to ask parents and children but fail to ask critical follow-up questions. Important questions to ask parents include:

  • Why do you find that important?
  • In what ways might you contribute to the problems (with the other parent or the child)?
  • Tell me more about that.
  • [if it is a relocation case] How would you suggest sharing parenting if the court rules in favor of the other parent?

These are just a few examples of the types of depth and curiosity questions one might ask and that will give the evaluator critical information about how a parent thinks about their family and the relevant issues at hand. Without depth and curiosity, an evaluator is at enormous risk of making the next mistake.

2.   Making assumptions about what the evaluator is being told. It is critical that child custody evaluators have a basis for their conclusions. Experts must avoid assumptions, yet I regularly see examples of this in my reviews. Recent examples of such assumptions I’ve seen include:

  • When talking to a pediatrician, and the pediatrician expressed an opinion that the child with a medical condition should not travel between 2 custodial home, the evaluator assumed that was related to the medical condition, but it turns out the pediatrician believes no young child should travel between 2 custodial homes. Assuming the pediatrician’s basis for her recommendations led to a potentially faulty recommendation by the evaluator;
  • Another evaluator was doing an evaluation pertaining to a relocation question and learned that Mother had rigidly applied the court order to limit Father’s parenting time. Without questioning Mother’s reasoning, the evaluator concluded that Mother was a Restrictive Gatekeeper. However, it turned out there was a lengthy history of Protective, not Restrictive Gatekeeping that court was aware of, which resulted in those rigid orders. Assuming that Mother was a Restrictive Gatekeeper led the evaluator to recommend against the child relocating with the mother, which was a problematic recommendation when the basis for the evaluator’s conclusion was based on faulty assumption of Restrictive Gatekeeping.

Although these are just two of the many examples I have recently encountered in my review cases, they outline why evaluators have to carefully maintain multiple hypotheses and avoid assumptions. One key way they can accomplish this is to maintain curiosity and depth of questioning.

3.   Succumbing to the heuristics of anchoring, confirmatory, or other cognitive biases. There is a considerable literature on cognitive biases that suggest all humans are susceptible to oversimplifying complex issues, such as we find in family law matters. These cases have many moving parts, with each parent’s allegations, children’s developmental and other needs, and complex issues such as relocation, refuse/resist dynamics, substance use/abuse issues, domestic violence, and others.

Evaluators must develop and maintain multiple hypotheses and maintain a healthy skepticism when parents tell us things. We must seek evidence of both disconfirmation and confirmation of the data before reaching conclusions. To do so requires curiosity, depth and breadth of data gathering, and avoiding assumptions.

How can professionals involved with high-conflict custody disputes compartmentalize / ensure that work stress and concerns do not carry over to one’s personal life? Professional who work within the systems of family and dependency court are at risk of taking on the trauma of the clients within the system. Judges, lawyers, and mental health professionals are all at risk and there is a growing literature on the impacts of vicarious trauma to participants in the traumatic experiences of our clients. These risks can lead to various symptoms including, but not limited to:

  • Feeling overwhelmed
  • Feeling burnt out
  • Numbness to other’s and our own pain
  • Using substances to aid in the numbing and blocking of our emotions
  • Treating our colleagues with anger and disdain
  • Depression

While we are at risk of such symptoms, there are many things we can do to avoid or minimize them. The first step is awareness – awareness of our emotions and our behaviors and taking the time to be mindful, mindful of how our client’s emotional responses and traumas and mindful of our own emotional responses. We must stop ourselves and think about what we are doing and why. When we get angry at fellow professionals we will want to stop and think about why we are feeling as we are. Are we developing symptoms of being burnt out, are we working too hard, and are we unable to problem solve? If so, consider the following antidotes to such experiences:

  • Exercise, eat healthy foods, and limit substances that numb your emotions
  • Focus on the spiritual meaning in your life
  • Develop feelings of gratitude for the good things in your life
  • Nurture your personal relationships with friends and loved ones
  • Travel and take regular holidays and time away from work
  • Laugh and be entertained
  • Do things that you find enjoyable, such as hobbies, and bring meaning to your life
  • Ultimately, balance your work and play, and stay focused on why you went into your own particular helping profession.

Attorney Leslie Shear

California child custody evaluators frequently conflate clinical and forensic paradigms, fail to fully understand the investigative dimensions of their duties, and fail to organize their data and analysis around the elements of a parenting plan. Here’s why they should avoid those mistakes.

1.   Conflation of clinical and forensic roles. A child custody evaluator is a court appointed officer of the court and the state. Once an order for a custody evaluation is issued, the process is compulsory not voluntary, and subject to the supervision and direction of the family court. All provisions governing a custody evaluation, including compensation of the evaluator, must be embodied in the court’s appointment order which is enforceable and modifiable by the family court. There is no place for private agreements or statements of understanding in a compulsory process, and such a private contract would require a separate civil judgment to enforce. Many contain provisions at-odds with the appointment order or the law. The same is true of “informed consent” forms or orders directly parents to sign releases and waivers that must be intelligently, knowingly and voluntarily given. Evaluators do have a duty to disclose the procedures they will follow. Evaluators should be mindful of the boundaries of state action and remember that they are acting on behalf of the state. For example, the state can’t make a “surprise” home visit – that is, in essence, a warrantless search. And the state cannot make decisions about child custody based upon information that is known to the evaluator but not disclosed to the parties and counsel. Follow the link below for a model CCE appointment order that addresses these issues in greater detail.

2.   Investigative duties. Evaluators often become preoccupied with co-parenting dynamics to the point where all other aspects of the child’s life get short shrift. Child custody evaluations began as investigations. A modern (since the 2000 amendments to the Family Code) child custody evaluation combines the historical social study model of child custody investigations with psychological evaluation of the child and family previously conducted by appointment of an expert under Evid. Code §730. Fam. Code §§3110 et seq. and Cal. Rules of Court, rule 5.220 include clear investigative mandates. Fact-gathering about the circumstances of the child’s life in the family and the community is as critical as psychological assessment of family members and family dynamics to development of a parenting plan that is most likely to help the child flourish. For example, evaluators often fail to engage in meaningful investigative interviews of collateral witnesses (rather than treating them as character references), observation of the child in school and with peers. Evaluators need to learn about the child’s life in the larger world, and the parents’ conduct on behalf of the child outside of the home.

3.   Focusing on allegations rather than the plan. The principle that form follows function should guide child custody evaluators. The purpose of a child custody evaluation is to assist the decision makers (parents and court) to develop, adapt or modify a parenting plan. The components of a parenting plan are encompassed in a few categories:

  • Information exchange and communication between parents
  • Decision making authority
  • Timeshare schedule of daily caretaking responsibility
  • Holidays, vacations and special days
  • Logistics, transitions, etc.
  • Other provisions which contribute to the success of the plan
  • Mechanism for review and adaptation

By organizing data collection, analysis, and report or testimony around the plan rather than around allegations, the evaluator sets a non-adversary tone for the process, gathers the information most relevant to the task, analyzes what the data means for developing the best plan, and explains what facts are relevant to the plan and why. Allegations and concerns are not ignored, but they get addressed contextually under this approach. (Thanks to Dr. Bruce Harshman for his work on this issue and the terrific outline in his slides for an AFCC-CA presentation in 2011.)