Custody Newsletter #1

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WELCOME

Welcome to the first issue of the Custody Newsletter. There are two features that make our Newsletter special. First, the tone is informal. We WANT contributions based on clinical experience (although we will accept data-based articles).

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 the following article, Dr. Michael B. Leach tells what he does to arrive at a decision on how much "visitation" a young child should be allowed with a noncustodial parent. Dr. Leach's article is exactly the kind we most avidly seek in the Custody Newsletter; he tells his rules of thumb for arriving at some important decisions. And while Dr. Leach tries his best to honor what child development research offers on this issue, he is not afraid to create a system of rules to make decisions where in fact there is no clear set of guidelines to be found in the literature.

VISITATION WITH YOUNG CHILDREN

My general position for normal children upto the age of three or so is that visita-tion should, ideally, be frequent but not necessarily extensive. Brief visits on a two to three times a week schedule are preferable to long weekend visits. Certainly, consistency of visitation is important to these young children and weekly contact, at a minimum, should be maintained.

As to the question of overnights, there is no exact proper time when these visitations should be introduced. Psychologists are, I believe, far more helpful in recommending how overnight visitation should proceed than predicting when it would be appropriate.

As a general rule of thumb, normal children are ready for overnights away from their primary home and primary parent by the time they reach the age of three. There is, of course, fairly wide variation here, and some children do well with overnights earlier while others need to move more slowly. It helps to facilitate comfortable overnight visits if the following guidelines are followed.

1. The child should have several days of preparation for the overnight (but not more than a week of preparation, so as to not increase anticipatory anxiety). Even before an actual overnight visit is planned, preparation should be done by both parents by letting the child know of the potential routine "when you are big enough to sleep over at daddy's house." The visitant parent can assist the child by showing the room and bed the child will sleep in "when you are big enough" long in advance.

2. The custodial parent should be available for phone calls throughout the night during the first few visits. Ideally, the child should be sufficiently verbally expressive by the time of these first visits so that she can communicate her needs, her worries and her wishes clearly to all. The verbal maturity of the child is a particularly good standard for when overnight visitation should commence. It should be explicitly understood between both parents that the goal is to make this

a positive experience for the child, not to unduly increase anxiety. The child should be encouraged by father to "call and say good night," and it is good for the nighttime telephone ritual to continue as long as the child appears to want it. Particularly on the first few visits, several calls are not uncommon and can be reassuring to the child attempting to adjust to a new nighttime plan. If the child turns out to be too young to withstand a full overnight visit, the visit should end and the child should be returned to the care of the primary parent.

3. On the first visit, the child should be sent with familiar "transitional ob-jects" -- e.g. stuffed animals, favorite dolls, a picture of the custodial parent, her own pillow or blanket. On later visits, the child will want to take some of these objects along and she should be given that option. It is imperative for the child's continued sense of security that, at the end of the visit, these special objects be returned to the child's primary residence. An exception is the picture of the primary parent which can stay.

I generally recommend that separations from the primary parent for children under 7 last no longer than one day per year of the child's age. That is to say, most one-year-olds can comfortably stay apart from their primary caretaker for about 24 hours at a stretch. The "average" five year old should be able to withstand a five day separation without difficulty. When two weeks' continuous summer visitation is ordered for six year olds, I strongly recommend the child be returned to the primary caretaker for the intervening weekend.

AUTHOR: Michael B. Leach, Ph.D.
Clinical Psychologist
Center for Effective Living, Inc.
24700 Chagrin Blvd. #300
Beachwood, OH 44122
(216) 464-7555

WHAT TO DO WHEN ONE PARENT WILL NOT COOPERATE

The language of the statement is as follows: "I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct." Executed on (date) at (Place), followed by my signature. My declaration is viewed by the court as evidence that is equivalent to sworn testimony provided by me in person in a court room.

I make it quite clear to the parents, the attorneys and the court that this declaration is limited and constrained by the fact that one parent did not provide input into the process. The declaration has explicit statements in it that make it clear as to what was done, what was not done, and what still needs to be ascertained with regards to the questions at hand. The declaration includes a careful description of the process that was attempted before it was decided to do a declaration rather than an evaluation. The declaration has specific language in it that explains that it is limited in comparison with a full evaluation because one parent did not provide information or because the child was not observed with both parents.

The following examples should indicate the value of a declaration. In a recent case where the mother was in another country and refused to have any contact with the father I included the following statement: With the understanding that I am acting as a consultant to Attorney's name and not as a neutral evaluator I am prepared to report on my observations of Mr. Clients name. I have not spoken to Mrs. Other parent's name. Through my work as a neutral evaluator for the court I am quite aware of the limitations of any assessment performed on one party without access to the other party. This assessment is done with the understanding that a full neutral evaluation needs to follow.

In another recent case in which the father initially refused to participate, I wrote a detailed description of my contact with the lawyers for both parents, the child's mother, the child in question and the issues raised in my observations of the child, as well as the mother's allegations about the father. I also indicated the good faith efforts I made to obtain the father's cooperation with the evaluation. This declaration was presented in court by the attorney for the mother, and this led to the court ordering the father to be involved in a neutral evaluation. The father has chosen to proceed with a neutral evaluation with me based on the declaration.

Through the declaration process from a credible psychologist the court is provided some valuable information regarding the child or children which sets the stage for the court to ask questions regarding the best interest of the child. This partial data provides a starting point for obtaining more information from the non cooperating parent. The court now has a set of hypotheses about the child that would require the non cooperating parent to reconsider a neutral evaluation with me or another evaluator. By providing a declaration, which admittedly is incomplete, the court process of finding out what is in the best interest of a child is not compromised by non cooperation of one parent. Through careful description of the procedures and the limitations of the data, the psychologist demonstrates his integrity to the court, and the child's interests are not thwarted by the non cooperation of one parent.

AUTHOR: Michael Hahn, Ph.D.
719 Colorado Avenue
Palo Alto, CA 94303
(415) 321-0332

IN RE JOINT V. SOLE CUSTODY

The specific definition of joint custody differs from jurisdiction to jurisdiction. Furthermore, the "legislative enactments run the gamut from simply recognizing the legality of joint custody orders to creating a strong presumption favoring joint custody whether or not the parents agree and requiring judicial finding if joint custody is not decreed."[2] However, for the purposes of this discussion, joint custody is defined as that situation where divorced parents have joint physical custody of their children (wherein they jointly provide for their children's day-to-day care) and the children spend approximately half the time in each parent's household. [3]

In practice, joint custody is implemented in a number of ways. In some instances the children split the year between parents or alternate years between parents, thus appearing quite similar to divided custody. In other instances the children spend half a day, half a week, or half a month with each parent. These latter methods appear the most typical and are the usual arrangement of those families studied in the scientific literature.[4]

There has been much speculation as to the advantages and/or disadvantages of joint versus sole custody, with much heated discussion by proponents and opponents of each. The purpose of the present article is to present the results of recent research on this issue.

Advantages of Joint Custody: Luepnitz reports that children--[whose parents have] joint custody [appear] to have retained two psychological parents in their lives. Whereas half of the children in single parent custody never [see] the other parent at all, all of the joint custody children [have] regular contact with both parents. Moreover, the interviews with them elicited descriptions of their lives in both houses which revealed that "business as usual" went on with both parents. In single custody families, in contrast, a visit with the non-custodian [is] more likely a holiday or a "date." Furthermore, contrary to the warnings about children having to "serve two masters," the vast majority of children in joint custody [are] pleased and comfortable with the arrangements.[5]

This scientist also found that joint custody families demonstrate much less custody relitigation than single custody families and that the fathers in joint custody arrangements are more apt to pay their child support.[6] Other advantages noted are more reliance by the parents on each other for childcare and prevention of parent "burnout" via more time off from the duties of parenting.[7]

Richards and Goldenberg found that "fathers in [joint custody families} make themselves much more available to their young children than do fathers in traditional families." [8] Fathers in typical intact families spend about fourteen hours a week with their young children whereas joint custody fathers average about twenty-four hours of waking time a week. Other studies confirm that fathers express a high level of satisfaction with joint physical custody in comparison to maternal custody.[9] In explanation these men report that they have a closer father-child relationship.

Finally, research data indicates that neither a child's adjustment nor a divorced family's "emotional climate" is related to custody type.[10] Further, there is evidence that children in families that have joint custody actually have higher self-esteem and display adjustment superior to children in maternal custody.[11]

Disadvantages of Joint Custody:

Although it is often assumed that the primary motivation for making joint custody arrangements is a desire to nurture the child in continuing close contact, this is not always the case. Wallerstein and McKinnon report there are several reasons parents seek joint custody. Some of these reasons are conscious and appropriate; other are not.[12] Likewise, over time parents' motivations and desires can change, which may have negative impact upon the continuing satisfactory implementation of joint custody.

First, a parent may seek joint custody as a way of "holding onto" the ex-partner and a marital relationship that he or she did not wish to end. Next, some mothers may agree to joint custody out of guilt over leaving the husband and/or because they are not fully committed to being full-time mothers. Finally, joint custody might only represent the desire of both ex-partners to avoid being full-time parents.

These diverse motivations can result in problems. For example, sole custody is thought to be a better decision where the ex-husband has physically abused the wife and might continue to do so. Also, where severe parental hostility and bitterness continues unabated the constant stress placed on the children by joint custodial parents is felt to be harmful. Likewise, a "number of single custody mothers and fathers stated that joint custody would have seriously constrained their ability to move out of a particular neighborhood, county, or state."[13] Furthermore, remarriage can be a problem. Not only can conflicts arise between a single ex-spouse and the newly married ex-partner and their new spouse but also newly remarried parents can lose interest in their children as they develop a new home life. Another problem involves one or both parents attempting to use the child as a replacement for the lost marital partner. "In some families [Wallerstein and McKinnon] observed, the child not only slept with the parent [on a regular basis] but appeared to have inherited emotionally the role of the marital partner. These youngsters seemed profoundly troubled psychologically. Such eroticized relationships may become overtly incestuous..."[14]

Recommendations:

Although the data provide no clear cut answers, some conclusions and recommendations can be made. First, "there is [only some] evidence to suggest that joint custody protects the young child against the stress of divorce. At the same time, there is no evidence that [in general] these young children would have been better served in single parent custodial arrangements."[15] Likewise, "it is reasonable to conclude that joint custody at its best is superior to single parent custody at its best."[16] Furthermore, children in divorced families with continuing parental conflict have more emotional and behavior problems than children in divorced families

that have less conflict.[17] Finally, there are instances when sole custody may be more appropriate than joint custody even when both parents agree to joint custody.

Critical components in the success or failure of joint custody which should be assessed by the judge and mental health professional are (1) the motivation of the parents in seeking joint custody, (2) the investment of the parents in the child, (3) the parents' ability to keep interparental conflicts separate from those issues involving parenting, (4) the regard that each parent has for the other's ability to fulfill the parental role, (5) the willingness of parents to make compromises such as living in close proximity to each other, (6) the willingness of each parent to provide the children continual access to the other parent regardless of whether it is convenient or comfortable, (7) the similarity of the parents' values and attitudes regarding parenting (if they are quite dissimilar it is important to consider whether both parents have the ability to tolerate their differences), and (8) the personal and emotional stability of each parent in the context of both past and future relationships.[18]

END NOTES 1. The four most popular forms of custody arrangements are sole custody, divided custody, split custody, and joint custody.Sole custody...awards the child to one parent, usually the mother, who maintains both legal and physical custody. Divided custody, also called alternating custody, divides the ultimate control and responsibility for the child between the parents, who each have this control when the child is in his or her physical custody. Each parent in this arrangement has the child for a part of the year or on alternating years, with the noncustodial parent retaining visitation rights during that period... Split custody...apportions the children between the parents, with each having ultimate control and responsibility for one or more of the children who are in that parent's sole custody. The other parent may retain visitation rights. ....[J]oint custody may mean that both parents simultaneously have legal custody with one parent being the primary physical custodian, or it may refer to a sharing of both legal and physical custody. This sharing of physical custody does not assume, however, half-time with each parent. Hagen, Proceed With Caution: Advocating Joint Custody, Social Work 26-27 (January-February 1987).
2. FOLBERG, JOINT CUSTODY AND SHARED PARENTING 6 (Washington, D.C.: Bureau of National Affairs, 1984).
3. This definition also includes those situations where the parents have joint legal custody so long as the children spend approximately half the time in the company of each parent.
4. There is also the arrangement, sometimes termed "nesting", where parents alternate living in the house where the children reside.
5. Luepnitz, A Comparison of Maternal, Paternal, and Joint Custody: Understanding the Varieties of Post-Divorce Family Life, 9 Journal of Divorce 4-5 (1986).
6. Accord, Ilfeld, Ilfeld, & Alexander, Does Joint Custody Work? A First Look At Outcome Data of Relitigation, 139 American Journal of Psychiatry 62-66 (1982).
7. Luepnitz, supra note 5 at 6-7.
8. Richards & Goldenberg, Fathers With Joint Physical Custody of Young Children: A Preliminary Look, 14 The American Journal of Family Therapy 156 (1986).
9. LUEPNITZ, CHILD CUSTODY (1983); Steinman, The Experience of Children in Joint Custody Arrangement: A Report of a Study, 51 American Journal of orthopsychiatry 403 (1981); ROSENTHAL & KESHET, FATHERS WITHOUT PARTNERS: A STUDY OF FATHERS AND THE FAMILY AFTER MARITAL SEPARATION (1981).
10. Luepnitz, supra note 5 at 4.
11. Schiller, Loyalty Conflicts and Family Relationships in Latency Age Boys: A comparison of Joint and Maternal Custody, 9 Journal of Divorce 35-37 (1986); Schiller, Joint Versus Maternal Custody For Families With Latency Age Boys: Parent Characteristics and Child Adjustment, 51 American Journal of orthopsychiatry 403 (1986); Wolchik, Braver, & Irwin, Maternal Versus Joint Custody: Children's Postseparation Experiences and Adjustment, 14 Journal of Clinical Child Psychology 8 (1985); Steinman, supra note 9.
12. Wallerstein & McKinnon, Joint Custody and the Preschool Child, 4 Behavioral Sciences and the Law 172 (1986).
13. Luepnitz, supra note 5 at 7.
14. Wallerstein & McKinnon, supra note 12 at 178.
15. Wallerstein & McKinnon, supra note 12 at 182.
16. Luepnitz, supra note 5 at 11 (emphasis added).
17. E.g., Johnston, Gonzalez, & Campbell, Ongoing Postdivorce Conflict and Child Disturbance, 15 Journal of Abnormal Child Psychology 493-509 (1987).
18. These criteria are based on those provided in the following articles: Hagen, supra note 1; Luepnitz supra note 5; Wallerstein & McKinnon supra note 12; Hauser, Custody in Dispute: Legal and Psychological Profiles of Contesting Families, 24 Journal of the American Academy of Child Psychiatry 581 (1985); Volgy & Everett, Systemic Assessment Criteria for Joint Custody, Divorce Therapy 90 (1985).

AUTHOR: John A. Call, Ph.D., J.D.
5100 North Brookline, Suite 700
Oklahoma City, OK 73112
(405) 949-9235
(c)1988 John A. Call, Ph.D., J.D.

THE TEAM APPROACH

After the initial part of the evaluation is completed the case is discussed, and at that time we may decide to have further interviews with the parents or further observational sessions with the parents and children. On one occasion we had the social worker and the adult psychologist observe both parents with all of the children together to see how they could cooperate when it came to dealing with their children. On occasion we will, as a team, interview each parent separately, or both of them together, depending on our needs.

We have found that this method of conducting evaluations provides a broader and hopefully more objective input. Although we have not testified in court as of yet on any of our cases we feel that evaluations done using a team approach will be more difficult to attack on the basis of individual bias. We would be interested in receiving input from any other groups who are doing team custody evaluations.

AUTHOR: Richard B. Madsen, Ph.D.
Clinical Psychologist
Pueblo Psychiatric Professional Corporation
A Mental Health & Counseling Center
202 West 21st Street
Peublo, CO 81003
(719) 542-5250

THE EFFECT OF SPINAL CORD INJURY ON CHILDREARING COMPETENCE

Buck and Hohmann (1981) compared 45 adults reared from an early age by SCI fathers with 36 adult children of able-bodied fathers. Utilizing data from psychological tests, these researchers found no difference in emotional stability, body image, sex role identification, or maturity be- tween the two groups of children. Both groups exhibited similar patterns of health behavior and, interestingly, the children of disabled fathers reported greater enthusiasm for and participation in athletics. Children of SCI fathers described their parent as having been both physically and verbally affectionate. In a subsequent article, Buck and Hohmann (1982) analyzed their results further to explore whether level of injury (i.e., paraplegia versus quadriplegia) had any effect on children's adjustment. No significant differences between these two groups were found in psychological adjustment, quality of family relationships, social skills, or athletic participation. They concluded that there was no evidence of disturbed development in either group.

A further analysis of the data (Buck and Hohmann, 1984) indicated that the employment status and level of income of SCI fathers was not significantly related to the psychological adjustment of their children.

These studies, although limited to examining the effects of only paternal SCI, can be a helpful source of data in formulating child custody recommendations for those who work with a disabled population.

REFERENCES

Buck, F.M. and Hohmann, G.W. Personality, behavior, values and family relations of children of fathers with spinal cord injury. Archives of Physical Medicine and Rehabilitation, 1981; 62: 432-8.
Buck, F.M. and Hohmann, G.W. Child adjustment as related to severity of paternal disability. Archives of Physical Medicine and Rehabilitation, 1982; 63: 249-53.
Buck, F.M. and Hohmann, G.W. Child adjustment as related to financial security and employment status of fathers with spinal cord injury. Archives of Physical Medicine and Rehabilitation, 1984; 65: 327-33.

AUTHOR: Richard L. Wanlass, Ph.D.
Chief Psychologist - Assistant Clinical Professor
UC Davis Medical Center - Dept. of Physical Medicine and Rehabilitation
2315 Stockton Blvd. / Dept of PM & R, Rm. G-512
Sacramento, CA 95817

CREATIVE ADAPTATION OF KINETIC FAMILY DRAWING

The method is a variation of the Kinetic Family Drawing technique. I ask each parent and each child to jointly draw a picture of their family with each of the people in the drawing "doing something." Thus, I may meet with several pairs, e.g. mother-daughter, mother-son, father-daughter, father-son, etc., and observe them in the process of doing this task.

I find it valuable for several reasons. First, it is a standardized interview technique, and I can more easily make inferences and comparisons because the situation is similar for all participants. Secondly, I can observe the process by which these parents decide what to draw. I can observe how much or how little direction and what manner of direction is given by the parent and whether that is appropriate to the age or ability level of the child. Important also is the willingness of the child to make suggestions about the drawing and the ability of the parent to accept these. Thirdly, I can use the content of the drawing to further understand the dynamics of the family and compare the information, as well as the above data, with that obtained from personal interviews and from informants.

It is interesting also to observe the degree of flexibility of parents when faced with this request. Most children are quite eager to engage in a drawing task, but the anxiety and resistance of parents can sometimes offer information about how able a parent is to go with the flow of a child-related task.

In the short time that I have been using this with families, I have only discerned one common pattern. That is the preference for children to want to designate their siblings and the parent they are doing the task with as the "family" for the picture, and then modifying the task in like manner when asked to draw it with the other parent.

AUTHOR: Robert A. Zibbell, Ph.D.
Psychological Associates of Framingham
One Franklin Commons
Framingham, MA 01701
(508) 872-6610

USING THE BRICKLIN PERCEPTUAL SCALES (BPS) WITH YOUNGER CHILDREN, DEVELOPMENTALLY LIMITED CHILDREN, AND UNCOOPERATIVE CHILDREN

When testing younger children I have altered the question format to more exactly fit the particular child's life style. For example, with the question, "If you had a pet, how well would Mom/Dad do at taking care of it if you had to go away for a few days?" a child without a pet and/or who has operatonal difficulty imagining having a pet, lacks a reference. This can be remedied by asking the child what he or she cares about more than anything else prior to asking the question or beginning the test, and using this response in restating the question.

Since the primary problem with young children is their understanding the concept of degree which is a necessary component of the test's linear ranking, I present the scale as "good", "not so good", or "in the middle". This reduces the scoring scale from sixty to three but presents more reliable weights of response. In explaining the test results I cite the child's preference and discuss some of the comparitive items as they might relate with the child's perception of each parent in the trait measured.

EDITORS NOTE: The above is a highly abridged version of a contribution which will appear in its entirety in the current BPS-PORT Test Manual Supplement ("Update").

AUTHOR: J. Grzebienak, Ph.D.
Columbiana County Mental Health Center
40722 State Route 154
Lisbon, OH 44432
(216) 424-9573
Here's some good advice.

EVALUATORS

Your personal stress level may exceed those of your clients after a day of receiving subpoenas (who is this?!), angry patients, dissociative needy clients, a leaky sink, and an emergency at lunch. But, just like any machine, you need care and consideration to be able to do your job.

So....
- Don't write custody reports late at night or without adequate nutrition.
- Don't think you need to have an answer for every question from a lawyer, judge, whomever. It is ok to not know.
- Remember, these situations are not personal.

- If you cannot decide - don't.
- Ask for help from colleagues (have a monthly luncheon and share cases - confidentiality respected, of course). An individual practice may leave you isolated and, at times, overwhelmed.
- Eat well and nutritionally
- Allow your needs to also be focused upon
- Exercise (walk! keep a bike you can pedal when you have no-shows)
- Set goals for yourself for achievement
- Be certain to schedule sleep (the only way most of our schedules work is to also book those 8 hours.)
Finally, if you are trying to win at Candyland, you need a vacation!

AUTHOR: Diane Marshall-Reed, L.L.P., C.S.W., A.B.C.M.P.
Hillsdale Counseling Center
108 E. Sharp Street
Hillsdale, MI 49242
(517) 439-1844

HONESTY AND THE BEST INTERESTS OF THE CHILD

If given a chance, I can make this clear to a judge. Timid people, who are not sure of themselves, are often involved with demanding people. Timid people rarely make accusations of child abuse or incompetency. They also tend to "put the best construct-ion" on everything and are easily led to believe that the domineering person couldn't have done what they think they have done. On the other hand, very domineering people often affirm they are right about a lot of things. Also, perpetrators or persons who have their own best interests at heart in visitation and custody battles, care only about what they want and not about what the child wants or needs.

Sometimes, I wonder if there shouldn't be a workshop or seminar on how to sound believable in court.

AUTHOR: Joy L. Baker, Ph.D.
Olney Prof. Bldg / 202 E. Main
Olney, IL 62450
(618) 393-6826

CUSTODY COURTS AROUND THE COUNTRY

CUSTODY JURISDICTION

AWARDING CUSTODY TO GRANDPARENTS

GRANDPARENTS RIGHT TO VISIT

MOTHER BANNED FROM SMOKING IN CHILD'S PRESENCE

GUARDIAN ENTITLED TO TESTIFY IN A CUSTODY DISPUTE

GOOD NEWS FOR COURT APPOINTED EXPERT WITNESSES

PLACING A CHILD WITH A NONPARENT

AWARDING A NONPARENT CUSTODY

A recent case involving these issues was where an unmarried mother of a 3 year old child apparently attempted to get the child back from a married couple with whom the child had been living and the married couple requested permanent custody of the child in court. In this case, it was decided that the unmarried mother of the 3 year old did not have the right to automatically take the child back, since the child had lived with this other couple almost from his birth. There is a continuing debate about whether the Ruppel interpretation is consistent with the contents of the Uniform Child Custody Act. This Act permits a third party (nonparent) with physical custody of a child to initiate a custody action. (Solomon V. Lewis; Mich Ct App, No. 122812; 8/6/90, released 8/23/90)

AN INCESTUOUS MARRIAGE CANNOT BE GROUNDS FOR DENYING CUSTODY IF INCEST IS LEGAL WHERE THE MARRIAGE TOOK PLACE

PSYCHOLOGIST IMMUNITY IN CUSTODY EVALUATIONS

If one reads between the lines in the following case, it will be easy to see the kinds of cases that often come to litigation. We will devote a special article at some point to the fact that this is most likely to occur when there is the perception of ungracious and uncaring professional help or evaluation.

Here is the background on this case. The mother initiated an action in which she sought to have her former husband prevented from seeing their 9 year old son because of the son's accusations that the father had abused him physically, emotionally and sexually. The parents apparently entered into a stipulation that provided a psychologist with the duty to perform an evaluation of themselves and the child. The stipulation was such that the psychologist was authorized to provide written reports, but only to the two parents, not to the court. However, either parent could call the psychologist to testify in the custody hearings; the court could not.

The mother claimed that the psychologist personally attacked her, yelled at her, made fun of her, accused her of lying and making up evidence and threatened that she would lose custody of her son if she persisted in believing his allegations about his father. The mother also claimed the psychologist misrepresented the fact of what previous doctors and experts had said, namely that they did not believe the child had been abused. She also claimed the psychologist did not disclose a lack of expertise in the area of child and sexual abuse, as well as the fact that she and the biological father had had a prior professional relationship, having given a professional seminar together. She also did not disclose that she was a close personal friend of the wife of one of the partners in the law firm that represented the biological father.

The court prevented this action and gave several reasons. California courts have in the past extended judicial immunity to persons other than judges if these people acted in a quasi-judicial capacity.

The psychologist asked the court to go beyond California's up to now limited application of this rule and apply it to people whose work product enters into the judicial process. The argument was put forth that this is what is done with, for example, probation officers who prepare reports, and social service workers and psychiatrists who work in cases involving the termination of parental rights. The court was impressed with the need to be able to bring help to an overburdened judicial system, e.g., independent and impartial services based upon true expertise. They wrote that nonjudicial people who fulfill quasi-judicial functions should be given this kind of immunity for damage claims arising from their performance of processes that aid the judicial process. They argued that without this immunity people of good qualification would be reluctant to accept court appointments or provide materials for the court's use. Also, the threat of civil liability could effect the manner in which they perform their jobs.

The psychologist also argued that in this day of crowded courts and long delays there is increasing reliance on dispute mediation and resolution by processes outside of the court, which also spare the participants the pain and torment that go with formal legal hearings.Here, however, we come to a critical part of this ruling. The mother had tried to argue (on a basis that did not seem very powerful) that she could sue the psychologist for professional negligence, using a duty to the public vs. duty to a client approach. She argued that like an attorney who can be held liable for professional negligence because of a specific duty to the client, so too could this psychologist. She argued that the psychologist was negligent in doing her duty for her client. The court, however, said that this focus is incorrect and is more correctly placed on a nonadvocate vs. advocate analysis. Hence, that while a criminal defense attorney, paid with public funds, has a duty to the public not to waste those funds, it is his or her job as an advocate for the defendant that makes him or her responsible and liable to later civil action.

The court pointed out that in contrast, a psychologist mediating a custody dispute, whether by court appointment or not, is not an advocate for either parent, even if paid by them. It went on to say that the job of third parties such as mediators, conciliators and evaluators involve impartiality and neutrality-- the same position as that of a judge, commissioner or referee.

Summarizing, the court extended quasi-judicial immunity and said this is properly done so for neutral third parties for their performing dispute resolution services that are connected to the judicial process and involve either the making of binding decisions, the making of findings or recommendations, arbitration, mediation, conciliation, evaluation or other similar activities.

Note here the importance of having obtained the stipulation that spelled out the psychologist was hired by both sides. (Kaufman v. Drapkin; Calif Ct App 2nd Dist, No. B041669, 7/31/90)

A PLEADING DARE

Here is where you share what you really feel, fear, think and believe about your work in the custody field. (continued on page 16)(continued from page 15)

Here is where you will tell what you really use and depend on and do in your work-- the rules of thumb, the decision trees, the secret gimmicks-- those things that make your custody work tolerable and do-able.

This is what we plead/dare you to send us.

A Sampling of Topics to be Covered In The Custody Newsletter (Please send us your thoughts on any of these matters.)
- The evaluator's nightmare: The long, bitter, never-ending battle
- Split up siblings?
- What to do when one parent is clearly better than the other in certain key areas, and clearly worse than the other in other vital areas
- Do conjoint arrangements ever really work?
- What to recommend when the primary caretaker wants to move far away from the other parent
- What to do when the child's deeply felt and expressed wishes are based on wish-fulfilling fantasies rather than reality (including the "absence-makes- the-heart-grow-fonder" phenomenon)
- What should be done when one parent (possibly the one favored by the judge) wants the child only for support money
- What to do when one parent will not cooperate
- When the test conclusions differ from the child's: practical recommendations
- What to do when the parent not favored by the test data has more money, a more stable family, a better home in a better neighborhood and access to better schools than the favored one
- What to do when the test favored parent has a mental health history that doesn't "sound good" to the untrained ear
- How to deal with biased judges (a scenario more frequent than one would wish, usually where the judge is being unduly influenced by some over-valued trait possessed by a particular parent)
- What to do when a parent mounts a (successful) campaign to win the child's (and the judge's) ffections, and the impetus for increased access to the child is coming not from this parent, but from his/her parent (the child's grandparent)
- What to recommend when a test-favored parent has a prior history of physical and/or sexual abuse
- The child who refuses to visit a particular parent
- The coached or bribed child
- What to do when a particular parent is better able to handle a child's important special problem, (e.g.,attention-deficit disorder) but handles everything else poorly or markedly less well than the other parent
- What to do when you encounter a geographical legal area that follows its own (poorly thought out) rule-of-thumb, e.g., Never change a custody arrangement unless there is blatant evidence of catastrophic harm to the child
- What to do when the test data seem at odds with the clinical data
- Hidden agendas: Are they always bad?

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