Custody Newsletter #10

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An INFORMAL forum for professionals in the custody field ISSUE # 10

WELCOME

Welcome to the Custody Newsletter. Our tone is informal; we WANT contributions based on your clinical experiences, as well as more formal presentations.

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.

Dr. Stephen S. Honor is on the National Board of Advisors of the Professional Academy of Custody Evaluators, Inc. He has written what I think all custody evaluators will consider important, timely, and somewhat controversial.

Dr. Honor calls upon us to standardize the comprehensive custody evaluation. He feels strongly about what should be included in anything that is referred to as a comprehensive custody evaluation.

He speaks about "informed" consent. While all "consent" procedures imply the person giving consent knows what he or she is consenting to, "informed consent" originates in a surgeon to patient model. In it, the surgeon spells out to the patient just what will be involved in an upcoming operation. Benefits and risks are spelled out in detail. In this way, the patient can make an "informed" decision about the prospective operation. This would imply that when we seek consent of a parent, or of a parent for a child, for participation in a custody evaluation, we should spell out in great detail exactly what each participant will be in for. Do any of us do this?

Perhaps of greatest controversy are Dr. Honor's thoughts on certain limited forms of participation in the custody evaluation.

It seems that most of the disputes we run into of late in our field which have to do with the expanded participation of a mental health professional in a custody evaluation, deal with a certain continuum. On one end of this continuum are those who have great faith in our adversary legal system. On the other end, are those with less faith. Members of the former category would favor expanded participation of the mental health professional, even in quite limited roles. This follows from the very definition of due process. Due process extends to any participant in a legal dispute the right to put forth his or her best case. This, in turn, extends the right of a participant to assert each and every fact that the participant feels is important to make this "best" case.

The other end of the continuum is populated by those who seem to believe more in aspirational idealisms. They seek some kind of normative "fairness" (and of course, as in Dr. Honor's thesis, want to make sure that no comparative statements are made from insufficient data).

I, personally, have always favored expanded participation of the mental health professional since to me, this is what due process is all about. I have always been greatly concerned with the influence of very personal and subjective biases in the way custody data are aggregated. A "neutral" bilateral evaluation offers no protection against this. While I certainly do not want to see a return to the "one-sided" evaluation, I favor a participant being allowed to bring forward any fact that he or she thinks is important. Hence I agree with Dr. Honor's main thesis of what should constitute a comprehensive evaluation, but I would not like to see our participation limited to this role.

These are important themes and deserve our careful consideration.

Dr. Honor, who is in the independent practice of forensic and neuropsychology on Long Island in New York, is board certified in Clinical Psychology, Forensic Psychology, Clinical Neuropsychology, and Behavioral Medicine. His article deserves diligent thought and response.

In writing his contribution, he claims it is neither a "scholarly pursuit" nor based on research on statistics. He depends on his own experience. And while shortly hereafter the Custody Newsletter will become the Custody Journal, based in part on refereed materials, Dr. Honor's piece demonstrates EXACTLY why the Custody Newsletter was founded to begin with: to provide a forum for experienced custody evaluators to communicate with one another without statistics.

CUSTODY EVALUATION: IS SOMETHING MISSING?

For those of us who have worked in the area of forensic custodial evaluations for at least several years, one cannot help but make observations "along the way" concerning the legal process, involvements with attorneys, and generally, "how the game is played."

The purpose of this article is to share with my colleagues some of my thoughts, observations and concerns. I will discuss the following areas:

- standardization of custodial evaluations

- the competent custodial evaluation

- the level of court awareness of forensic issues

- "ultimate issue" issues

- the expanded use of rebuttal "experts"

- working with attorneys

The basis of my data is both personal experience and the sharing of information from/with colleagues experienced in forensic custodial evaluations.

This article is neither a "scholarly pursuit" nor is it based upon research or statistical information; rather, it is a compilation of observations, thoughts and feelings developed over time while working in the area of forensic custodial evaluation.

STANDARDIZATION OF
CUSTODIAL EVALUATIONS

One of the important factors that one becomes aware of with experience in the area of custodial work is that there is in fact no "one way," or "right way" to do a custodial evaluation. We prize the prerogative or individual practitioners, whatever their professional discipline or philosophy, to conduct custodial evaluations in a manner consistent with their beliefs, training and experiences. Whether or not we use psychological tests, the specific selection of those tests as well as the nature of our interviewing is left to us to determine. This is in the same tradition as conducting psychotherapy, psychological and neuropsychological examinations: the practitioner determines the basis and manner in which he/she pursues his/her professional objectives.

At the same time that we support such individual prerogatives, those of us experienced in custodial work recognize that there are certain areas that must be explored if we are to conduct a complete/compre-hensive evaluation and to obtain the information necessary to provide an objective, well thought out opinion to the court. After all, it is the trier of fact who is ultimately responsible for the legal decision as to custody determinations, and it is our job to assist these individuals by providing the kind of information that will make their job more meaningful and manageable.

It is my belief that some form of standardization in custodial evaluation is necessary in order to bring a sense of order and completeness to a crucial and difficult area of forensic practice. Such standardization would more reasonably allow for the assessment of the quality of one's work by those who may consider and/or review custody evaluations in an attempt to determine their completeness and competence (e.g. reviewing professionals [i.e. a psychologist asked by an attorney to review a custody report done by another professional], rebuttal psychologists, the court). Clearly, one of the most important goals in custody work is to have the court both accept our work and recognize its importance in the decision making process; standardization would better allow for this. Without a standard model, a judge has little data to help him/her to determine whether or not a professional has met the objective of conducting a complete/competent and objective evaluation. This will further be discussed later in the article.

THE COMPETENT FORENSIC
CUSTODIAL EVALUATION

There are certain basic elements that are necessary in order to meet the objective of complete/competent evaluation. I will confine my thoughts and observations to those custody evaluations that allow for the assessment of all relevant parties. While most of us recognize that there are times and circumstances when an evaluating psychologist may not have access to all parties involved in the action (e.g. when we are asked by an attorney to evaluate his/her client and the children, or to only evaluate the lawyers' client), we also recognize that such evaluations cannot lead to a comprehen-sive/objective assessment, and that there are significant limitations on the opinions we can offer based upon such evaluation (e.g. it is widely recognized in the field of custodial evaluation that an evaluating psychologist cannot appropriately come to a conclusion about fitness of a parent whom has not been examined, or make a recommendation for placement of children when all parties have not been evaluated [unfortunately, there are still practitioners who conduct such "one sided" evaluations and feel competent to make such recommendations]).

As acknowledged above, there are different ways to approach and conduct custodial evaluations. However, I, and other experienced colleagues, feel that there are certain "essential ingredients" that are necessary in order to conduct a thorough, comprehensive and objective evaluation. The following procedures, to the extent deemed appropriate by the individual practitioner, are strongly recommended (if not "mandatory"):

- a thorough discussion of informed consent, preferably with a signed document attesting to these factors

-interview of all primary parties, including both parents, step-parents, siblings and step-siblings in the homes being considered

- interview of secondary parties, including, but not limited to: grandparents, friends, neighbors, relatives, co-workers and supervisors

- obtaining records from the school and possibly interviewing teachers (if permitted by the school which may seek to avoid direct involvement because of the legal process)

- medical and psychological records, both past and present, for all relevant individuals (e.g. children, parents)

- past and present legal and court records (e.g. police complaints, arrest reports, etc.)

- work records or data from parents' jobs

- interviewing and observing the parents/step-parents with each of the children who would be in the home (including step-children)

- an on-site visit to each of the homes being considered

- psychological testing (which is the technique that sets us apart from other disciplines engaging in custody evaluations) of primary parties (the nature and extent of such testing is based upon the background and expertise of the practitioner, but would best include objectively [e.g. MMPI, MMPI-2, Millon tests, PAI, etc.] rather than subjectively interpretive tests)

- any other appropriate and necessary assessment (e.g. neuropsychological screening/examination when appropriate and within the expertise of the evaluating psychologist)

- a complete and objective report of findings and recommendations

Most of us would recognize that including all of the above elements would lead to a very comprehensive evaluation. However, conducting such an extensive evaluation is both time consuming and costly. In my experience, many practitioners do not utilize all of the above procedures. On some occasions the evaluator is simply not aware of the need for all of the above information. In some cases the evaluator does not conduct an extensive evaluation for practical reasons such as time and/or cost (I recall a recent case where the evaluating professional [not a psychologist] admitted that he had information provided by one parent that he did not read because of "time constraints" and his belief that such information would not be "useful" - on the stand it became evident that this information was crucial to a competent evaluation).

Custody evaluations are typically expensive when conducted by a private psychologist. However, in my opinion "cost containment" at the expense of a comprehensive evaluation decreases the competence and value of such evaluations. If one is going to do the job, then it must be done in a manner that is consistent with good practice and meets our ethical obligations for practice at the "highest level." Cutting corners to decrease costs is not acceptable - if the financial burden on the individuals responsible for payment is too great, one can choose to lower the per hour fee, or even in some cases provide a pro bono evaluation. Compromising the competence of the evaluation does little for the reputation of the individual practitioner, decreases the worth of custody evaluation in general, reflects poorly on forensic psychology, and increases the probability that the evaluator will be unable to adequately defend his work during testimony.

COURT AWARENESS OF
FORENSIC COMPETENCE

Related to the thoughts expressed in the previous section is my consistent observation that courts are typically not aware of what constitutes a competent custody evaluation. In the rebuttal portion of my custodial work, I have had the opportunity to read custody evaluation reports prepared by a number of professionals as well as to observe the courtroom testimony of many of these individuals. By the same token, I am aware that the reports that I write and my own courtroom testimony are also scrutinized by other custody evaluation professionals.

Sadly, I find that the level of competence and expertise of many custody evaluators, even experienced individuals with "excellent reputations," is often inadequate. The most egregious errors I have encountered include (in part) professionals using psychological tests without proper training (in one case a professional on the stand during a custody trial admitted that he used an objectively based psychological test for which he had received no training, had no knowledge of the psychometric properties of the test, and did not utilize or even understand anything other than the narrative portion of a computer generated report), offering opinions concerning placement of the child(ren) without evaluating all parties, treating psychologists becoming involved in the forensic evaluation process, and evaluation reports that do not appear to be objective and seem to be prejudiced in the direction of a particular parent in the absence of information corroborating that position.

While many of the errors specified in the preceding paragraph "leap out at me," I have read judges' opinions extolling the virtues of professionals who have been less than competent and objective. I can only conclude that these judges simply do not know what constitutes a competent evaluation.

This situation is one which I believe can only be remedied by professionals such as ourselves. At least in theory we know what kind of evaluation is competent and thorough. While I do not argue for a "canned" or dictated approach to custody evaluations, I strongly believe that standardizing the kind of data that is necessary in order to come to reasonable conclusions is a requirement for professionals doing custody evaluations if we are to be valued as part of the legal process contributing to appropriate placement of children.

Perhaps the most viable approach to educating the court about such procedures would be through a specific educational program. In Suffolk County on Long Island (New York), several professionals who are involved in custodial litigation are considering doing just that. In the absence of such education, almost arbitrary acceptance of less than competent work will continue to be accepted by hard working judges who simply do not know how to assess the information that is provided to them by custody evaluation professionals. I can recall one trial where I appeared as a rebuttal witness for the exclusive purpose of advising the court as to what constitutes a thorough and competent evaluation. In that case, a treating psychologist had offered an opinion about the placement of a child based upon treatment of that child in relation to educational problems. The psychologist had not been asked to do any kind of forensic evaluation, had not done any formal evaluation, had not interviewed either of the parents and had only met one parent for minutes when the parent brought the child to the psychologist's office. Yet, that psychologist apparently believed the he/she was competent to offer an opinion of placement of the child to the court.

"ULTIMATE ISSUE" ISSUES

Much has been written about the "ultimate issue" with respect to expert witnesses. Certainly this encompasses forensic work including, but not restricted to, forensic custodial work. A lot of this work has been thoughtful and scholarly. Both sides of the question have been amply and adequately represented - yet, as is true in so many areas, definitive guidelines have not been forthcoming. My work in custodial as well as other types of forensic assessments has led me to conclude that the court, the trier of fact, wants me to offer an opinion about the "ultimate issue." Perhaps I am part of that group of forensic experts that believes that if I do not offer such an opinion, that gap will be filled by individuals whose opinions are based upon less information and possibly less rigorous standards. My position is based upon the belief that if I have done a careful, thorough and comprehensive evaluation, I am in a position to offer an opinion and to support that opinion with information that is of probative value. Included in this belief, with respect to our ethical standards, is the inclusion of data that considers alternative hypotheses, admits to the weakness and shortcomings of our methods, and recognizes that the court will make the ultimate decision. I believe that it is the job of the court to assess the weight to be given to such testimony; it is not my job to "deprive" the court of my conclusions after many hours of extensive and intensive work. Once again, I do not argue for all custody evaluators to take this position, but include this section as representative of an important issue, one that we are faced with each time we complete a custody evaluation.

THE EXPANDED USE OF
REBUTTAL EXPERTS

I can recall several years ago when a forensic expert was retained by the court, or by the attorneys, and that expert was the sole individual to conduct the custodial evaluation and to provide testimony to the court. In most recent years, there appears to be a trend whereby a second expert is retained by the attorney of the client to whom the custody report is not favorable. The role of this second expert varies:

- The second expert may be asked to review the report of the court appointed psychologist and to offer an opinion as to whether or not the report is "fair."

- The second expert may be retained because the attorney of the "unfavored client" believes that the report and findings of the court appointed psychologist are questionable or lacking.

In the later scenario, believing that the appointed expert has not done a proper job leads to the following options:

- The second expert may be asked only to work with the attorney in terms of reviewing the report and helping the attorney develop rebuttal questions for court without ever having seen any of the clients and without appearing in court.

- The second expert may be asked to help the attorney develop rebuttal questions and to be in court during the testimony of the appointed expert without any intent of testifying.

- The second expert may be asked to become involved in the evaluation process directly, either interviewing or evaluating the "unfavored parent" and/or the children.

- The second expert may be asked only to testify as to how to conduct a competent/thorough evaluation without being directly involved with any of the parties to the custodial action.

During my professional life, I have been asked to engage in all of these practices. For the last few years, I have noted that in each case where I have been court appointed, or retained with the agreement of both attorneys, upon testimony I have been "confronted" by a colleague (usually someone whom I know) sitting in the courtroom when I am providing testimony. Whether or not a second expert is asked to provide testimony would appear to be based upon the belief that the appointed psychologist did not do a "proper" or competent evaluation.

Obviously, if the originally appointed expert has done less than a competent or complete evaluation, it would seem reasonable to retain a second expert to challenge the testimony/findings of the originally appointed expert. Of the possibilities specified above, the only one that I find questionable is retaining a second expert to directly evaluate the children without this being sanctioned by the court. It is my belief that if there is evidence that the evaluation has not been competent/complete, it would be the job of the attorney of the "unfavored" client to present this data to the court, and to petition the court to appoint a second expert. Engaging in what amounts to a "second evaluation" (even though this evaluation would most probably be incomplete since the attorney of the "favored" parent is not likely to allow or encourage his/her client to undergo such a second evaluation) without court sanction or approval is, in my opinion, a questionable and possibly even unethical practice.

When asked to review the work of other custodial evaluators, I have unfortunately found that the evaluation that has been conducted is either incomplete or less than competent. When asked to review such work, I will approach this task critically, and typically base my opinion on whether the criteria listed earlier have been satisfied. In too many cases it would appear that the evaluator has omitted a crucial element or has written a report that appears to be biased.

I believe that if the evaluator has not done a thorough/objective evaluation, he/she invites the use of a rebuttal witness, with the reasonable probability that in the process of testifying this expert will be confronted by vigorous cross examination focusing on areas of their work that do not meet a "reasonable standard."

Again, this focuses on the confusion and lack of sophistication as to what constitutes a compe-tent/proper evaluation. Not too long ago I testified as a rebuttal witness in a case where the appointed evaluator had not reviewed all of the material provided to him/her (which in this case turned out to be very important information), had not made an on site visit, and had engaged in the use of a psychological test about which he/she had not training. The report appeared to me to be biased towards one parent, substituted "clinical opinion" for objectively verified data, and in the use of the psychological test specified above quoted verbatim from the computer based report without any attempt to integrate this data with interview findings. Guess what? The judge not only followed the recommendation of this custody evaluator, but in his written opinion extolled the virtues of this evaluator (who actually had more than ample credentials), pointing out how fortunate the court was to have an expert with his/her experience and training. The judge did not cite or discuss any of the areas brought out on cross examination or any of the information that I provided during rebuttal testimony. (It is of interest that in a subsequent custody evaluation by this same "expert," a different judge found this professional's work was not credible, citing the use of psychological tests for which the expert was not trained, and for providing what the judge believed to be a biased report and presentation.)

WORKING WITH ATTORNEYS

I realized early in my forensic career that attorneys want what they want. They always advocate for their clients. In custody work, my experience has been that regardless of the findings of the custody evaluation, in almost all cases attorneys will continue to advocate for the placement of the children with their client. Our task however, must be to advocate for our opinions based upon our evaluation. The information that we present to the court is hopefully objective, and based only upon the "best interests of the child(ren)."

One of my areas of interest with respect to dealing with attorneys is related to the role of the (forensic) psychologist in cases where the psychologist has

been court appointed, and, following the completion of the forensic custodial evaluation, now has a definite opinion as to the placement of the child(ren). On what basis does this psychologist now deal with the two attorneys? In many cases, as alluded to in an earlier section, the attorney representing the parent considered to be less favorable for placement retains another expert to review or rebut the findings of the court appointed psychologist. But what is our role with respect to the attorney representing the parent whom we find more adequate with respect to placement? Prior to court appearance (assuming that the case is not settled based upon our findings and recommendations) do we meet with this attorney to prepare us for direct examination? Are there any ethical constraints to doing so, since our court appointment theoretically places us in a non-adversarial, totally objective role? I have discussed this matter with several experienced colleagues. One of my observations based upon such discussions is that, once again, there is no standard or "approved" approach in dealing with this issue; thus, each forensic practitioner is "on his/her own" to determine how this situation is to be handled. Some practitioners will meet with neither attorney following the completion of the report and they will not be prepared by the attorney of the "favored" client. These professionals believed that, given their experience, it was not necessary for them to be prepared by either attorney, in this way scrupulously maintaining their position of objectivity. For some psychologists, once committed to an opinion favoring a particular parent, they now felt free to meet with and be prepared by that client's attorney. These psychologists believed that since they were now advocating for their opinion based upon their evaluation, there was no ethical concerns as to the propriety of such meetings or preparation.

I believe that this is an area that warrants further consideration and discussion. Recognizing that it is not only what we actually do, but the appearance of what we do that is also of significance in forensic situations, I would hope that as a specialty area in psychology our theoretical position and our actual behavior would be consistent, and would reflect on our specialty in the most positive manner.

CONCLUSIONS

In the preceding pages I have shared some of my observations and concerns. My own approach to forensic custodial evaluation is not a "hard and fast one." I try to evaluate each case on its merits, and to provide an evaluation that is thorough, competent and objective. This is not a simple task considering frequent time constraints, demands made by the courts, attorneys and clients, and the ever present economic considerations.

Over time it has been my observation that the legal profession has become more aware of the existence and value of forensic specialists. Our services seem to be in great demand, and the area of forensic custodial evaluation is one area in which we may often become involved.

If we are to continue to evolve as a specialty within the larger profession of psychology, if we are to maintain and further develop the respect of the legal system, and if the information that we provide is to be given serious "weight," it is my opinion that we are obligated and responsible to better develop our approach to such evaluation. I believe that we cannot get away with "seat of the pants" evaluations. I do not believe that we can compromise the objectivity and completeness of our evaluations based upon pressures of time, money and/or people. As I have outlined above, I would like to see us develop a flexible, but standard manner of conducting custody evaluations. Furthermore, the courts need to be educated as to such procedures in order for judges to assess the competence of the forensic evaluation.

AUTHOR: Stephen Honor, Ph.D.
222 Middles Country Road #215
Smithtown, NY 11787
(516) 979-6226

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CUSTODY COURTS AROUND THE COUNTRY

Our legal system extends wide discretion to the judges and other critical decision makers who deal with custody disputes. No single ruling, regardless of its origin, imposes extensive restrictions on these decision makers. A practitioner seeking guidance in any phase of custody decision making must look beyond individual statutes and rulings. Familiarity with custody law as a whole, paying special attention to discerning the intentions of the lawmakers, is where guidance can be found. Hence, the following is in commentary form, and in no instance is a report EVER intended for legal use.

A DIRTY TRICK BACKFIRES

The husband always believed that he was the father of the child. When they separated, joint custody was the agreed upon arrangement. They further agreed that neither party would move away from the state of Maryland without the other parent's consent.

The mother moved away, and the father petitioned for temporary and exclusive custody, which was awarded to him. The mother then countered with the fact that he was not the real father to begin with.

She had always told him that he was, even though she was pregnant when they got married. His name was on the birth certificate as the father and he always openly acknowledged the child as his daughter.

The mother claimed that this finding, that the father was not really the father, was sufficiently compelling to overturn the award of custody to the father.

The courts found against the mother. A number of interesting issues came up during this legal process.

One involved whether or not the blood tests could be legitimately admitted as evidence. A trial court had allowed this to happen. A Court of Special Appeals held that the mother should be estopped from using the blood test results to "bastardize" the daughter. The court was clear that it was not in the child's best interests to have a blood test reveal that the person the child had depended upon all of her life as her father to be not her father.

Since the case also involves a "third party" as opposed to a biological parent, it is interesting that the Maryland court found that establishing paternity is not a necessary factor in determining custody.

DIFFERENT STANDARDS IN INTERPRETING WHO HAS "POWER"
TO MAKE DECISIONS IN JOINT CUSTODY ARRANGEMENTS

In a recent case involving a situation where the parents had joint legal custody, the mother decided the child should have elective surgery. The father tried to stop her, claiming that these decisions must be made jointly. The New Jersey Superior Court found that in interpreting other case law there was an "unarticulated premise" that a residential parent is really in the better position to decide important questions if there is an argument between the parents. They claim that courts should be very hesitant to try to substitute their own limited knowledge of a child's day to day life for all of the data possessed by the parent who lives with the child on a day to day basis.

The exact opposite was found in Michigan. There was an argument over which school the child should go to. The court here said that it is the court's job to make a decision when parents with joint custody cannot decide something that is truly important. They said that by definition, joint custody means that the parents share decision-making about important matters and where they cannot do so, the court must step in.

It is interesting that in the other state they saw this kind of process as resulting in a tremendous backlog of cases for the court.

CRITERIA FOR RELOCATION

Supporting my view that relocation issues are a real pandora's box, in which there is not even agreement on the interpretation of standards within a given jurisdiction, we find recent happenings in Florida to illustrate this. Presumably, the precedent had been to seriously discourage removal of a child. In one particular case, the mother sought to move from Florida to California with the young child in spite of the fact that at the time of their divorce the court had ordered that neither parent may move without the expressed permission of the court. About five years later, the mother did in fact seek permission to move with the child claiming the father was not paying his child support payments in any event, that she had an offer of a better job in California, and that the child's grandfather, her own father, would be there to provide support. The father opposed the move. The court found for the mother.

There were dissenting opinions in that the precedent had always been to discourage such a happening.

Here are some of the guidelines suggested in a case that was reviewed for purposes of the present case.

1. The trial court is supposed to consider whether or not the move would improve the general quality of life for both the primary caretaking parent as well as the involved children.

2. It is very important that the motive for the move not be to deny visitation to the other parent. This is always a key issue in such cases.

3. The likelihood that the moving parent would make reasonable and well-founded efforts to provide substitute visitation.

4. The trial court is instructed to consider whether the substitute visitation would be adequate to allow the child to continue having a meaningful relationship with the noncustodial parent.

5. The trial court is to consider whether the move is affordable by one or both of the parents.

6. Overall, it must be considered whether the move is in the best interests of the child.

MORE ON HOMOSEXUALITY

The father has custody of the child. The mother felt that the father's attempt to poison the children's minds against her because of her homosexuality constituted changed circumstances, and sought to modify the custody arrangement. The North Dakota Supreme Court, however, decided that putting aside the mother's homosexuality, there was sufficient evidence to say that the child should remain with the father for a whole variety of reasons. They further said that the father's intolerance of the homosexuality was by no means the sole cause of the child's discomfort with the mother and her partner. They also did not believe that

"bigotry as a matter of law transcends all other factors..." that might be applied to determining what is in the best interests of a child. They also said that the trial court should not have temporarily terminated the mom's visitation (although it was allowed to resume once again) saying that a child's exposure to this does not endanger his or her health to a level that a denial of visitation would be considered. However, one (dissenting) justice pointed out that if in fact the father did poison the children's minds against the mother with his intolerance, a change of custody would be required.

THE ROLE OF THE PRIMARY CAREGIVER

It has seemed to me that many, many courts around the country are very predisposed to allow children to remain with whoever has been their primary caregiver at any age. This is so in spite of the fact that this is not a governing principle in the Uniform Marriage and Divorce Act.

At least one state made it quite clear that being the

primary caregiver is not to be interpreted to mean that the nod should go toward this parent. The Washington Supreme Court rejected the idea that that state's Parenting Act requires that a child be placed with the primary caregiver unless there is evidence of harm coming from this decision. It made very clear that this may be considered an important but not determining factor in deciding custody.

HIV-POSITIVE STATUS

The Alabama Court of Civil Appeals decided that a divorced father's being HIV-positive plus a "gay lifestyle" indeed constituted a change of circumstances which was sufficient to remove his daughter from his custody and place the child with his mother. They specifically pointed out that this was not done simply on the basis of his homosexual orientation. They pointed out that the fact that he did not disclose the HIV status until the very day of the hearing had a very adverse effect on his credibility which they took to reflect a general suspiciousness about the truthfulness of any of his testimony about his own lifestyle.

Apparently, the mother had not been much of a parent in the past and this is why the father had custody to begin with. The court pointed out that she had attended parenting skills courses and improved her skills from what they had been in the past. They

further indicated that the involved child testified as to wanting to live with the mother and a half-brother. They also had pointed out that it had been contemplated when the child was with the father that she would actually be living with this father's mother and this was no longer the case.

In other words, it was much more than the homosexual aspect to the case that seemed to be compelling.

NO MATTER WHAT, IT AIN'T VERY GOOD TO GO TO JAIL

To make a long story short, a noncustodial parent regained her child even though she had not shown in any scientific way that the child would be "seriously endangered" by staying with the father. His going to jail was a sufficient basis for the court to affirm a change in custody. It actually did so by drawing an analogy between a custodial parent's going to jail and

that parent's death. They reasoned that an incarcerated parent cannot fulfill the physical role of a custodian.

Any way you look at it, it is not helpful for a custodial parent to go to the clinker.

INVESTIGATING A PARENT'S RELIGION

The North Carolina Court of Appeals essentially limited the amount of inquiry that a trial court should use to investigate the religious practices of a custody disputant. One parent belonged to what most folks

would think of as a "cult." The court said that essentially an investigation into this "religion" must limit itself to determining if exposure to it would be harmful to the involved child.

ROTATING HOMES IN JOINT CUSTODY

Florida's Fourth District Court of Appeals said that a trial court made a mistake when it allowed an eight year old child to rotate back and forth annually from one parent's home to the other. In spelling out the decision, it articulated certain items that a trial court might want to consider in deciding if such an arrangement is workable. One would be that the child's age and stated preference would be such to maintain "health" along with the back and forth stuff.

The length of time of each period of custody would have to be considered. Disruptions caused by this arrangement should be considered and it would be important that there exist a parental antagonistic stance such that a lot of continuing contact between the two of them is not deemed in the child's best interest. (In the instant case, they found that none of these presumptions were met and directed the trial court to reverse the rotating custody order.)

IDAHO COURT SAYS THAT THE RELIGIOUS FERVOR OF A PARENT
SHOULD NOT BE WEIGHED IN A CUSTODY DETERMINATION

The parents had joint legal custody of two children. The wife had primary physical custody. However, when she decided to marry a guy named "Tex" and leave the state, a trial court changed the custody order and gave the children to the husband (who had more religious devotion than the mother, and I guess, Tex also) for nine months of each year. The mother was to see them for three summer months. Among the factors considered in changing the custody was a weighing of what the trial court called the "religion factor." They claimed that a prior case (which would have argued against what they wanted to do) was not applicable, since there the result was that a trial court is not to compare one religion to another. The trial court felt that this did not cover the idea of comparing the amount of religious devotion on the part of one parent to the amount shown by the other. The Idaho Supreme Court argued differently. They claimed that the guiding spirit of the precedent case was that not only should courts avoid comparing one religion to another but that in custody disputes, the courts should

refrain "from entering the tangled web of religion altogether."

They further cited the constitution both of their state and of the United States and claimed that to do what the trial court did, that is, weigh the religion factor, forced the parent to choose between their own beliefs, on the one hand, and trying to hold onto their children on the other. They found this not supportable.

They pointed out although the trial court did purport to take into account the teaching of ethical traits rather than religiosity itself, they found that this was not a compelling argument in terms of what actually went on. They believe that a mere comparison of religious devoutness was what was considered. For example, the court pointed out that the trial court made no mention of the wonderful behavior of the children as reported by informed observers which certainly would acknowledge that the children were picking up good ethical and moral training while with the mother.

PARENTAL FITNESS AS A CRITERION

Here is an interesting case. The father had primary physical custody although it was a joint custody arrangement. He did not cooperate in making it feasible for the mother to participate. Also, there must have been a finding originally that the mother's mental health was suspect. However, the fact that the father did not cooperate in making the custody arrangement work was reason for a trial court to reverse and give the child to the mother. The court claimed: "Where a parent with physical custody voluntarily and unreasonably causes joint custody itself to become unreasonable, that parent may lose custody of the children altogether."

An interesting sidelight in this case was the fact that the mother tried to claim that her own improved mental health status constituted a change of circumstances. The court did not support this saying that while an improvement in a noncustodial parent's mental condition is indeed likely to improve the lot of a child, it does not follow that this improvement will make whatever the existing custody arrangement is unreasonable or unworkable. (They did say that a change in the mental status of a primary custodial parent could constitute a change of circumstance.)

TO ME, A MUCH HARDER CALL THAN IT WAS FOR THE COURT

In 1979, the mother was diagnosed as manic depressive. She received psychotherapy and lithium. She did not like the weight gain that came with the lithium so her use of it was sporadic. She also smoked weed. She discontinued treatment in 1987 to attempt to have a child and did so while residing at some county facility. She is uncertain of who the father is.

Fearing that the state would take away the child, she moved in with her sister and brother-in-law. The child was born in September of 1988. The mother was hospitalized in November of that year and attempted suicide in January of 1989. She was hospitalized until March. When she got out, she signed an agreement granting temporary custody to the people with whom the child had been staying. These people soon asked her to move out of their home. In September of 1989, she attempted to regain custody of the child. Her attempt failed. This now came before the West Virginia Supreme Court of Appeals. They reversed the trial court decision, and gave the child to this mother. The following is of interest. They claimed that her treating psychiatrist said her prognosis is good at the present time and that she is motivated to take her medication. He said she is no longer a suicide risk. The trial court had found that the other folks were the

child's true psychological parents and it was quite an issue that she did not have the "medical fitness" to sustain stable custody.

In a rather long (written) decision, the appeals court made two essential assertions. One had to do with the parent's motivation for giving away custody. Her motivation was to provide the child a stable environment until she could get back on her feet. Another important factor was that it was claimed that the people to whom she had given the child did not cooperate in this endeavor and prevented her from attempting to forge a stable bond with the child. The other point was that they felt the trial court made an error in coming to an opinion about the mother's future mental health. They concluded that while this was laudable in that it was intended to protect an innocent child, it "infringes too profoundly upon the rights of this natural parent to her child, and is based upon mere speculation as to the future course of her disorder."

I don't know about this one. It does not seem that this reasoning is really a "best interests of the child" kind of reasoning.

WHEN CAN A COURT COMPEL A PSYCHOLOGICAL EVALUATION?

A Florida District Court of Appeals found that a trial court made a mistake in ordering a divorcing mother to submit to a psychological evaluation. They argued that a trial court may only so insist if there is shown good cause based on evidence that the "parent has been unable to meet the children's needs." The father was concerned because the mother had been in psychiatric treatment for at least one year and was taking Prozac.

He also felt that the fact that one particular child needed psychiatric counseling and that the other suffered from an attention deficit disorder was evidence that the mother was not meeting their needs. However, the court found that all of these conditions were insufficient to establish good cause to compel a psychological evaluation.

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