AUSTRALIAN FAMILY LAWYER, v. 6(3), 1991, p.8
Mental Health Professionals in Child Custody Disputes:
Advocates or Impartial Examiners?
by Kenneth Byrne
Some months ago I received a telephone call from a seasoned family law solicitor. He requested that I evaluate his client, the mother of two young children, and her new partner. The woman's husband had made claims that she was inadequate as a mother, and custody litigation was unfolding. He also requested that I examine his client's new partner, and made it clear that there would be no question about his client's ability to pay my fees.
I responded by asking whether the father of the children would be invited to participate in the evaluation. The solicitor responded that he did not want the father evaluated by me. After further discussion he conceded that perhaps the father could be invited to participate later on, after I had seen his client and her partner.
The solicitor seemed genuinely surprised and somewhat irritated when I refused to participate on this basis. I explained that I was not prepared to become involved in a custody dispute as an advocate from the outset. The telephone call did not permit the necessary time to fully explain my reasons for this decision. The conversation lingered in my memory, and provided the stimulus for this article,
The purpose of this article is to explain the reasons why I believe an impartial approach by mental health examiners is preferable in child custody and access litigation, and to describe features which make such an evaluation impartial.
Advocate or impartial examiner?
Some mental health professionals choose to serve as an advocate. As an advocate, the professional sees one parent and the child (or children). Occasionally a step-parent, or possible step-parent, is also evaluated. The examiner usually communicates with only one solicitor. A report is then submitted. Those who are more cautious will limit their findings to describing the assets of that parent (and possibly their partner) as a prospective primary care-giving parent. Those professionals who are more reckless will actually go so far as to say that the parent who has been examined is the one with whom the children should live, despite the fact that only one parent has been interviewed.
I believe that this approach suffers from several limitations. Firstly, in many cases it then encourages the other parent to obtain a report from an advocate of their own choosing. This usually extends the litigation and often leads to the proverbial "battle of the experts". Often one report simply serves to cancel out the other. Perhaps most importantly, having an expert witness as an advocate for each side invariably polarises the parents further.
Secondly, most judges will place little weight on a report of an advocate because they fully appreciate that there are two sides to the story, and the other side has not been heard by the mental health professional.
Thirdly, since the findings can be at best equivocal, such an evaluation does little to shorten the litigation process. This is a very important consideration for two reasons. Firstly, litigating for the custody of one's child is an extremely stressful experience. It often creates psychopathology in one or both parents. The longer the litigation is drawn out, the more likely this is to be the case. Secondly, whilst litigation is going on the children involved must endure a considerable degree of stress and anxiety. The longer a case and the more court appearances that are involved, the greater the potential for psychological damage to the children.
Aims of impartial examiner
The impartial examination is quite different. The impartial examiner makes every effort to do four things:
The examiner attempts to remain as neutral as possible in his or her relationship with each solicitor.
The examiner requires in advance full co-operation from all parties. The evaluation of parents and children in the context of custody litigation is an extremely difficult exercise. The results of such an examination can have very significant consequences for everyone concerned. Therefore, it behoves the examiner to do as much as possible to be sure that all relevant information and necessary procedures are utilised.
The impartial examiner makes every effort to remain as objective as possible in the assessment of each parent. This means that each party should have the full opportunity to express their concerns in as much detail as necessary (within reason). By the end of the evaluation each party should feel that they have had the opportunity to express all of the issues that they feel are important. This not only assists the examiner in making sure that no issue has been overlooked. Of equal importance is the perception each parent will have of the examiner and of the evaluation process. Either one party (and sometimes both) will be unhappy with the final recommendation. The examiner is concerned not only with the what the recommendation will be, but with the likelihood that each party will be able to comply with whatever arrangements are finally decided upon. If each party feels that they have had a chance to tell "the whole story", they are more likely to follow the final arrangements. Those who feel that the examination has not -been sufficiently thorough, or that the examiner has been biased toward the other parent, are more likely to ultimately sabotage the custody and access agreement.
The examiner does whatever possible to avoid causing or aggravating psychopathology in the parents and children who are involved. For example, it is obvious that both parents will be extremely anxious about what the final opinion will be. It is, in my opinion, unwise for the examiner to prepare a report and then simply mail it to the solicitors. Rather, I believe it is more humane to invite both parties to a conference with their solicitors, once the evaluation is completed. They can then hear at the earliest opportunity what the examiner's recommendation is. They will also have an opportunity to question the examiner about any distortions they feel may have intruded into the final opinion. This opportunity is not usually available in a courtroom when the expert is testifying. In this way, both parties hear the expert's opinion "straight from the horse's mouth", and are spared the additional burden of having to wait to find out what the examiner will say. Often, custody and access arrangements can be worked out at this conference, limiting the need for further custody/access litigation.
Considerations for the solicitor
For an impartial examination to be arranged, both solicitors need to agree that such an approach is desired. They also need to agree on which examiner they will select. Obviously, both solicitors must recognise that the opinion of the expert is not binding. Each party retains the right to request a court hearing and to have the opportunity to vigorously cross-examine the expert, if they feel the opinion is biased or incorrect.
If both solicitors agree on an impartial examination, it behoves them to encourage their respective clients to participate. At the same time, they should also encourage their clients to assess the examiner themselves, and to form their own view about whether the evaluation is sufficiently thorough and fair.
The solicitors should make every effort to refrain from telling the expert their view of the case. Whilst from an advocate's point of view this is a natural impulse, doing so can introduce some bias into the process even at the very early stages.
Similarly, the solicitors should be certain that the expert has had no contact with either parent prior to the examination. Choosing a mental health professional who has treated either parent or any of the children is a particularly unwise course in most cases, because it is very difficult for such a professional to "switch gears" and change from being the treating person and move into the approach of an impartial examiner.
The provisions document
Some years ago when I first began conducting custody evaluations, I began by seeing both parties. I assumed that they would then co-operate with the requests I made. I quickly learned that this was a naive expectation. There are no greater possessions than one's own children. Parents who are faced with the possibility of losing physical custody of their child are not famous for their objectivity or their cooperation with someone who they may perceive as assisting in that process. In these situations it is common for parents (and some solicitors) to use a variety of strategies to compromise the thoroughness of the evaluation.
Using my own experience and that of my colleagues, I have developed a document which sets out what each party must agree to in advance. Some lawyers have told me that the detail of this document is "a bit over the top". However, each part of the document has been included for a specific reason, most often evolving out of a situation in which someone tried to "get around" what was required. For example, the document states that each parent will agree to take "any and all" psychological tests. That choice of words is not accidental. An earlier version simply mentioned psychological tests. In the middle of an evaluation, one parent agreed to take an intelligence test, but refused to take a test of personality functioning, thus compromising the effectiveness of the evaluation.
The question of payment is an important one for several reasons. If the examiner is unsure that he or she will eventually be paid, this gives the party who will be paying for the examination a certain degree of "leverage" over the examiner. Naturally, the party who is not favoured has a powerful form of retaliation available against the examiner through the non-payment of accounts. This situation naturally causes the party who is not paying to question how objective the examiner can be. To avoid this bias, I have included in the provisions document a detailed description of how fees must be handled.
I am aware that solicitors must adhere to a court calendar, and at times there is pressure to get a case on during a particular listing. However, a custody evaluation is not something which can be rushed, and I believe it is a mistake to do so. Some professionals conduct these examinations in as little as two to three hours. I do not believe it is possible to do a thorough or comprehensive examination in such a short time. Typically, I allow a minimum of six weeks to evaluate two separated parents and one child. I then add about one week for each additional person to be included in the evaluation. If there are two children and a third adult to be evaluated, evaluation generally takes about eight weeks. However, it can be longer depending on several variables, and it is very difficult to say in advance what issues may emerge to lengthen the evaluation.
Occasionally, I will be asked by a solicitor to see only their client. I will agree to that request under two conditions. First, I must see in writing that the other party has been invited to participate and has declined. Secondly, it must be understood that I will see their client for one or perhaps two consultations, with no promise beforehand that I will participate as an advocate. Only then will I be able to determine whether I feel I can be of assistance to the children by participating as an advocate.
I also realise that an evaluation which requires as much candour as possible from each parent goes against the very spirit of an adversarial approach. From the advocate's viewpoint, it is often better to withhold certain information, or to try and "dress up" certain fact situations. I can only state that the solicitor who can step back from an adversarial approach in matters which concern the children will thereby be doing as much as they can to serve the children's best interests.
On occasion, children will state openly which parent they want to live with. In other cases, the parent will advise the solicitor that the child has stated clearly that he or she wants to live with that parent. Sometimes a solicitor will interview a child, and ask directly what it is the child wants. The matter of a child stating his or her preference is an extremely difficult one. The verbally stated wish of the child is one of many possible scenarios. Children will sometimes state a preference for living with one parent, but they often do so for the wrong reasons. For example, one parent may have long-standing psychological problems; the child will (usually unconsciously) want to be with that parent in order to look after the parent emotionally. This is sometimes an undesirable outcome because it places an unreasonable burden on the child.
At other times a specific preference is expressed due to one parent having brainwashed the child [see Byrne, K, "Brainwashing in Custody Cases: The Parental Alienation Syndrome" Australian Family Lawyer, Vol 4, No 3, March 1989: Ed)
In other cases children accurately perceive that one parent is better than the other at meeting their needs.
Due to the complexity of the problem of children stating their wishes, I would suggest that solicitors not actively endeavour to elicit the child's preference. When it is stated, the solicitor is well advised to note this, but to treat the information cautiously, as just one part of a larger process.
The impartial examiner is in the strongest position to acquire the most in-depth and accurate information about what custody and access arrangements would be in the best interests of the child. Unlike the solicitor who generally hears only one side of the story, the impartial examiner has the opportunity to interview everyone, and to do so in various combinations. The examiner has the opportunity to watch children interact with both parents. It is also possible to interview both parents together and to question or cross-question each about significant allegations against the other.
The advantages of this approach greatly outweigh examinations conducted by an advocate for only one side. Whilst more difficult to arrange, initially more expensive, and more time consuming, such examinations can go a long way towards shortening litigation, reducing the ultimate cost to clients, and easing the strain of litigation for both parents and children.
Dr Byrne is a Clinical and Forensic Psychologist in full time private practice in Clifton Hill, Victoria. He is an Honorary Lecturer in the Department of Psychological Medicine, Monash University; a guest lecturer in the department of Forensic Psychology, Monash University; and an instructor in the Victorian Bar Reader's Course.