Custody Newsletter #11

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OFFICIAL NEWSLETTER OF THE PROFESSIONAL ACADEMY OF CUSTODY EVALUATORS (PACE)

An INFORMAL forum for professionals in the custody field ISSUE # 11

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.

Although the following article by new PACE member Frankie L. Preston, Psy.D., is about incest-type offenders, it covers many important issues that confront the custody evaluator e.g., post-evaluation monitoring plans where abuse has been a concern, confrontation of family "secrets," etc. Written from a systems perspective, there is much material here to aid the custody evaluator. Where the author speaks about "reunification" as a goal, the custody evaluator can think about a post-evaluation plan that is in a child's best interests, which requires at least some cooperation between the parents. Of general importance in Dr. Preston's article is the depth and extent of operationally clear therapeutic and future-safety interventions articulated.

CONSIDERATIONS FOR ASSESSING FAMILY REUNIFICATION IN CASES
INVOLVING INCEST-TYPE SEX OFFENDERS

These considerations are presented as a general framework for therapists, human resource workers, guardians and legal professionals when family reunification becomes a goal after an incest child sex offense has been committed. These criteria are not exhaustive, but are intended to serve as a means for a multidisciplinary team to consider in its ongoing assessments and decisions with the family.

Remembering that the offense involved a perpetrator, a situation, and a victim, treatment interventions should be specific to these areas. The offender, the non-offending spouse (and family members), and the victim must develop an understanding of sex offense dynamics (exploitation cycle, sexualization of the parent-child relationship, secrecy and silence, etc.), demonstrate reliability over time, and maintain safeguards so that a sexual re-offense or other abuse of power and authority does not reoccur.

Department of Human Resource Workers will benefit from a pre-offense history. Pre-incest offense considerations would include family stability before the sex abuse. The offender, the spouse, and the victim should be questioned and collateral information obtained about the following:

A. Residential/employment/financial stability

B. Criminal/psychiatric history

C. Alcohol/drug history

D. Family violence/abuse of power and authority

E. Sexual deviances and disorders

F. Intellectual/mental/physical status

G. Extra-familial involvement (DHR, police, church, neighbors, etc.)

H. Family stressors (divorce, separation, custody, illness, death, etc.)

I. Social vs. asocial family (extrafamilial involvement)

The pre-morbid functioning of the family system will provide invaluable information to assist in diagnostic conclusions, treatment planning, and prognosis for reunification. This information would be helpful (checklist or narrative) for sharing with the treatment team.

Some families might have to undergo levels of therapy before initiating sex abuse treatment. For instance, alcohol and drug addicted family members should address this problem before entering sex abuse treatment. Family members might be chronically impaired to the extent that outpatient initiatives are of little or no benefit. When addiction, mental illness, cognitive impairment, physical limitations, etc. are chronic and show no promise of resolution, members should not be encouraged to hope for reunification.

The reporting phase involves one or more persons admitting that internal family mechanisms are dysfunctional. There is an acceptance that external structure is indicated for recovery. The manner in which the report is made will provide the team with impressions about the manner in which the family operates relative to disclosure, cooperation with treatment, and utilization of resources toward reunification. The following data are areas of concern:

A. Who reported abuse?

B. Did offender acknowledge abuse (immediately, after time, never) and did their account of disclosure match the victim's?

C. What was intensity, frequency and duration of the abuse?

D. Was spouse, family or significant others in or at the geographic location at the time of offense?

E. What was period of time between last incident and report?

F. Was force, threats, bribes, drugs, or alcohol used or implied?

G. Did victim tell or suggest to others about abuse before authorities were made aware?

H. Did spouse/other family/significant others believe and support victim after the report? later?

I. Did the offender tell or suggest to others about abuse before authorities were made aware?

J. Was exploitation cycle typical or uncharacteristic of pre-offense status (explain)?

K. Did offender, spouse/significant other, and child request treatment at time of report?

L. Did offender, spouse/significant other, and child resist referral for treatment?

M. Did offender or spouse/significant other assume a "victim stance" during/after investigation? To what degree (i.e., resistance vs. retaliation)?

N. Was extended family, employers, church, etc. aware of offense and supportive of treatment?

The family should be regarded as "a unit" which needs treatment even though the offender is "the one" who committed the offense. This concept is especially important if the family asserts any hope of reunification (editor's note: remember to substitute the notion of "able to act in a child's best interests" whenever you see the term "reunification") in the future. The first goal for the human resources worker is to assure victim safety and security. Safety means freedom from being placed in re-offense situations or becoming the target of blame, or frustration because of reporting. Security pertains to maintaining the usual standards of living which the victim is accustomed (i.e., home, school, activities, etc.).

The unit cannot become repaired by one or two people-- it takes a commitment by all! To achieve this, the offender is generally asked to leave the household (editor's note: substitute: accept supervised visitation) and assume independent living until reunification efforts can be initiated. In situations when time has passed since the last offense and time of report, many offenders and their spouses will note that this is an indicator that the sex abuse cycle has ended. While this might be true, it is also a signal that the victim has endured "system secrecy" and will likely present a more chronic clinical adjustment. "Doing nothing" can be harmful. As a consequence, even though s/he is older, more intense expressions of anger, acting out, and displays of resentment might become complicated by allowing the offender to stay in the home. If the non-offending spouse "cannot control" (frequent happening) the victim without offender disciplinary involvement, alternative placement with a relative, foster care, or residential treatment might be the best option.

It is common that a non-offending spouse will not accept that the offender abused the child. This reality simply overwhelms some spouses, who find it easier to believe the child a liar. Such parents cannot acknowledge their sex partner as a person erotically aroused by children. By being sexually intimate with a sex offender, the spouse might implicitly feel involved and uncertain about what they should do. The victim will likely benefit more from alternative placement with a relative or foster care than to remain in a household with the offender and an unbelieving spouse/parent. Hopefully, the nonoffending parent can reach a point where they believe the child and restore trust and honesty in their relationship.

NOTE: There are certain referral situations and family conditions where these criteria may not apply. Again, these are general guidelines for the team to consider over time.

The treatment phase begins when each family member feels free to accept external assistance, can freely express thoughts, feelings, and opinions, and can accept constructive personal feedback. Treatment cannot begin until after a legal disposition has been reached. From "report until court" the offender stands to be imprisoned; the non-offending spouse might lose custody of the child; and the victim fears family, home, and standard of living being taken away. Victims will be "guarded" to say the least, and many become so frightened that "recants" occur. A return to "system-secrecy," ("homeostatic balance") although uncomfortable, is at least predictable. The goal in the "report until court phase" is to crisis intervene, stress manage, build patient rapport, and educate family members about treatment.

Financial strain, transportation problems, scheduling difficulties (job, home, school), and feeling exposed (others knowing) are part of the recovery process. These problems are not the result of DHR, the court procedures, or contact with a therapist, but a consequence of sex abuse against a child. Problems did not begin with reporting...the hope for recovery began then. The problems began when the abuse occurred! Treatment for the offender may be an alternative to prosecution or incarceration and requires payment, scheduling and transportation. The offender, and sometimes the non-offending spouse, will often focus on how they have been victimized rather than how they have been victimizers. Late or non-payment of fees, transportation problems, scheduling difficulties, and refusal for other family to participate in therapy are typical of the "victim stance." If this behavior is evidenced over time, treatment efforts and reunification success are unlikely. Some become immobilized with resistance and this should be empathetically confronted as incidences occur.

Each member of the family unit should receive substantial therapy before reunification is considered. The treatment should be individualized and conducted in a setting specific to (sex) abuse. Generic groups will not be a substitute for sex offender groups, non-offending spouse groups, and child-adolescent groups. Therapists should be educated and experienced working with offenders, non-offending spouses or victims of sex abuse. "Substantial" generally means later, rather than sooner into the treatment plan and pertains to a demonstrated understanding of offender, family, and victim dynamics, acknowledging specifics of the exploitation cycle, and establishing safeguards for re-offense prevention. This will vary from person to person and family to family.

Victim readiness and reliability to report future advances are of primary importance. The victim's individual and group counselors are in the best position to make this determination. Re-offense safeguards should be thoroughly understood and monitored when the reunification process begins.

The non-offending spouse should at least participate in group counseling to reach an understanding of the victim, the offender, and the situational abuse dynamics. A primary goal would be to understand how direct anger, grief, and guilt are to be appropriately expressed and processed. The spouse is also a victim, and should be permitted to share the hurt of being torn between two people for whom s/he loves and cares.

Emphasis should be directed toward understanding how a "situation" of secrecy and silence contributed to the offense perpetration and what safeguards must be established, maintained, and monitored in order to prevent re-offense. The victim must feel s/he is believed and will be safe and secure. The therapist for the non-offending spouse would be in the best position to judge whether safeguards will be monitored and victims protected.

The offender presents a special therapeutic challenge. S/he must recognize and appreciate the seriousness of the offense, and be willing to resolve the legal aspects of the actions. A formal legal disposition would be preferred. In treatment they will be expected to understand their exploitation cycle, reduce "victim stances," develop victim empathy, correct errors in thinking, discontinue mis-use of power and authority, develop internal and external safeguards and monitors, and practice a lifetime plan for re-offense prevention. This takes time and concentrated effort. The process cannot be hurried and generally takes a minimum of one to two years. Again, this may vary.

Therapy seems to work best when victim, non-offending spouse, and offender enter the treatment process at the same time. Once victim readiness and reliability are established, and after the non-offending spouse has sufficiently worked through the above issues, if the offender is drug and alcohol free (3-6 months and in AA), is involved and progressing in a sex offender group treatment program, understands the exploitation cycle, demonstrates victim empathy and acknowledges victim safeguards, then the team can collaborate about a reunification plan. This would include input from court appointed Juvenile Advocates, guardians, teachers, and significant others who are willing to contribute to the therapy plan. The DHR social worker would be the best point of contact to determine the reunification feasibility plan and schedule.

Once the individuals in the family unit reach a therapeutic place where reunification has become a collective goal, safeguards for re-offense prevention must be specified. A therapist who specializes in family therapy - perhaps one of the counselors involved with the existing team (the victim's counselor if possible) should coordinate the reunification therapy plan. The goals should be successive, and well defined.

"Successive" means that the offender-victim contact should be gradually introduced. This might begin with a therapy session, proceed to a scheduled telephone call, then to brief family outing, an overnight visit, and then to a weekend contact. These "movements" toward reunification should be therapeutically monitored.

After each contact, the victim (if age appropriate), the spouse/parent, and the offender/parent should evaluate the visit. This might be done by keeping a journal of every contact ("four W's and four H's"):

* Who was present?

* What happened (detail events)?

* When did the contact occur (exact time and duration)?

* Where did the visit take place (face to face, telephone, at home, etc.)?

* How did you feel (identify emotions)?

* How did you think others felt (identify emotions)?

* How could the contact lead to a "red alert" situation?

* How do you feel about continued and successive contact?

"Safeguards" are progressively specified in: Working with Sex Offenders: Guidelines for Therapist Selection, authored by Michael A. O'Connell, Eric Leberg, and Craig Donaldson, published by Sage Publications, Inc., 1990. In terms of offender contact with any minors or potential victims from discovery

and throughout treatment, the following rules apply (paraphrased):

The child should never be left alone with the offender; the offender should not be allowed to be responsible for discipline with the child; the offender should not be allowed to initiate physical contact with the child; if a child initiates physical affection, the offenders response should be exceedingly brief; there should be no physical contact whatsoever between the offender and the child such as tickling or horseplay; no secrets are allowed between the child and the offender; the offender should not be allowed to discuss sexuality or dating with minors; the offender should not present himself as needy for affection with the child; there must be a designated supervisor or chaperone to observe the offenders contact with the child; the offender cannot enter the child's bedroom; the offender should not enter a bathroom with the child; the offender should always be appropriately dressed; the offender should not roam about the house at night with his wife or companion asleep; if he gets out of bed at night, he should inform this individual what he is doing; (please note that these rules may equally apply to a female); abused children should especially not be allowed to watch sexually-related behaviors like even heavy petting; etc.

Once some kind of reunification has been achieved, the family should be encouraged to re-establish family-type rituals e.g., holiday rituals, celebrations, etc.

(Before reunification can be declared potentially successful, all of the treatment initiatives mentioned before must be re-evaluated. These would include the residential/employment/financial stability of the family; any criminal or psychiatric history; alcohol and drug use patterns; etc.)

AUTHOR: Frankie L. Preston, Psy.D., R.C.E.
The Key, Inc. (Primary Office)
Licensed Professional Counselor (AL #496) 219 Grove Avenue, N.W.
Marriage & Family Therapist (AAMFT #18054) Huntsville, AL 35801
Licensed Clinical Psychologist (TN #1698 & KY #868) (205) 536-0550
Fax (205) 536-5508

Dr. Ken Byrne checks in from Australia with a helpful suggestion in the investigation of a sexual abuse allegation.

Questioning children about allegations of child sexual abuse can be an exceedingly difficult task. Naturally the challenge is to first find a variety of ways of introducing the subject, but without leading the child.

One technique which I have found helpful is borrowed from child psychotherapy and is known as "using the child as a consultant". The child is told about another (fictitious) child of the same age and gender, who has seen the examiner recently.

This example is extracted from the end of the third interview with a 9 year old boy. It contains the first reference to sexual abuse that the child made to me (I = the interviewer, C= the child):

I. "You know there's something I want to ask you today". (Pause - the boy continues to play with some marbles). "I was talking to another boy who is 9 years old, earlier this week. Do you know what that boy said to me?

C. "No."

I. "He said that something happened to him that he felt very unhappy about, but that he couldn't tell me about." (Pause...the child appears to be

absorbed in his play). "What do you think this boy was so unhappy about that he couldn't tell me?"

C. "Maybe his parents had done very bad things to the boy and told him not to tell about them."

I. "Well that could be. What sort of bad things would the parents do?"

C. "Like touching him in a rude spot - things like that."

I. "Well his parents could have touched him in a rude spot...hmmm."

C. "Yeh, that's like what happened to me and what my step-father done."

I. "How do you mean?"

C. "Well, when he touched me in a rude spot."

In this case the non-directive technique provided an opening which the child could use to bring up the subject of his abuse. This naturally led to a longer discussion of what happened, and other details emerged.

AUTHOR: Ken Byrne, Ph.D.
41 Queen's Parade
Clifton Hill, VIC 3068
Australia

Relocation issues in custody cases are confusing and often contradictory at a legal level. I have seen directly opposite conclusions reached by judges even where each judge presided in the SAME jurisdiction, let alone when decisions are issued in different jurisdictions.

It is also a complex area for the evaluator, when he or she is asked to address a parent's relocation.

Psychologist Robert Haymond, Ph.D., offers the following suggestions. (Another "must read" article in this area is "Psychotherapeutic and Psychological Considerations: When a Custodial Parent Seeks to Move Away" by Herbert N. Weissman, American Journal of Family Therapy, 1994, 22 (2), 176-181.)

EVALUATING FOR RELOCATION

One of the most contentious issues mental health professionals are called upon to investigate in custody and access disputes is the matter of relocation of the custodial parent. Mobility itself is a fact of modern day life. Nonetheless, as far as my own reading of the literature goes, we custody evaluators do not possess a basic set of general and specific guidelines which would enable us to both focus on, and prioritize, the relevant significant issues. In this short article I will draw primarily on my own experience as a custody evaluator to outline the major factors which we must explore during the course of such evaluations.

The body of jurisprudence in the various states, provinces and territories may differ with respect to family law and certainly with respect to the way in which these laws are interpreted and implemented. As well, boards and colleges of psychology (and other professions) can vary with respect to the principles and assumptions by which clinicians must be guided. As a result, I am going to examine the question of relocation based on the Ontario context, where I reside and am registered, and generalize from these starting points.

In an unpublished manuscript, Judge Lawrence Kozak, of Thunder Bay, Ontario, highlighted the dilemma of relocation thusly:

Child mobility is closely linked to the term custody, which confers upon the custodial parent the right to make all decisions with respect to the incidents of custody, including the residence of the child; and reserves unto the non-custodial parent the right to visit and be visited by the child and to be given information as to the health, education and welfare of the child. These parental rights are subject to what is in the best interests of the children. As long as both parents reside in the same jurisdiction or particular locale, they would seemingly both be able to exercise their parental rights.

It is when the custodial parent wishes to remove the child from the jurisdiction and thereby affect the access of the non-custodial parent that the Courts are called upon to balance the rights of the parents in the light of what is in the best interests of the child. [1]

Notably, the best interests of the child are neither subsumed by, nor necessarily identical to, the needs and desires of the custodial parent.

This concept of the child's interests being independent from the parents' has also been implied by the Ontario Board of Examiners in Psychology (OBEP) which has endorsed an interdisciplinary report on custody and access assessments. One of its assumptions states "that the children need the benefit of an on-going relationship with each of their parents unless circumstances dictate otherwise..." [2]

This latter point is crucial because if the noncustodial parent is already engaged in a positive ongoing relationship with the child in question, and if this relationship would be significantly altered by removal of the child, then the psychologist may well be obliged to recommend against relocation. In fact, the primary focus of the psychologist's investigations must be on the relationship as experienced by the child with the noncustodial parent.

Ancillary factors might serve to either support, negate, or moderate a straightforward recommendation about relocation. With respect to the child these factors include: 1) quality of relationships with close family members affected by relocation; 2) quality of current friendships, involvement in school and participation in community affairs; 3) provision of services special to the child, including medical, educational, and recreational, etc.; 4) opportunities afforded in the proposed new community; 5) innate flexibility of the child and capacity to make use of good coping strategies in new situations.

The evaluation of the custodial parent should focus on how a change in his/her circumstances would effect the child, whether detrimentally or beneficially. These factors include: 1) network of stable supports which the custodial parent can reasonably count on in the new community; 2) general opportunities offered in the proposed new community including, but not limited to, financial, vocational and educational; 3) the ability of the new community to meet any special needs of the parent including medical and educational ones; 4) the mental status of the custodial parent in his/her present situation versus the estimated alteration in mental health brought about by relocation and how this change might indirectly effect the child; 5) intent and desire to cooperate with the noncustodial parent in assisting with an ongoing relationship, should relocation take place.

The evaluation of the noncustodial parent, above and

beyond his/her primary relationship with the child, should include the following factors: 1) intent and desire to pursue a relationship with the child in the event relocation takes place; 2) the financial ability to transport the child from the place of relocation to the community in which the noncustodial parent continues to dwell; 3) capacity to take care of the child for extended periods of time; 4) ability to take care and custody of the child should the custodial parent decide to relocate even without the child.

SUMMARY

The first important consideration for the custody evaluator is to become familiar with family law as it involves relocation in the jurisdiction in which he/she practices. As well, the custody evaluator should be familiar with the guidelines of his/her own professional association and how those guidelines apply to relocation.

The second, and primary consideration, at least for psychologists in the context of Ontario, is to assess the nature and quality of the relationship between the noncustodial parent and the child in question. The primacy of this concern may of course vary according to jurisdiction and professional association.

Ancillary factors might serve to either support, negate or moderate considerations based solely on the nature of the relationship between noncustodial parent and child. Psychological assessments of each of the individuals involved in the dispute, child and parents alike, may be required.

REFERENCES

1. Child Mobility: Where Do We Stand After Carter v Brooks? Paper by the Honorable Mr. Justice Laurence C. Kozak prepared for the Thunder Bay Family Law Seminar; October 23, 1992; Page 2.

2. Custody/Access Assessment Guidelines: Report of the Interdisciplinary Committee for Custody/Access Assessments; The Ontario Psychological Foundation; Toronto, Ontario; 1988; Page 2.

AUTHOR: Robert Haymond, Ph.D.
Registered Psychologist (Ontario & Alberta)
510 Van Norman Street
Thunder Bay, Ontario, Canada P7A 4E4

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.

Special Note: All of the following are from newspaper accounts. Our purpose is to show the growing importance of custody issues in public awareness. Guest Editor: Gail Elliot, Ph.D., R.C.E.

CUSTODY ISSUES IN THE NEWS

Child custody cases and issues surrounding child custody continue to capture media attention. On any given day, one might find newspaper coverage of cases involving famous litigants (Woody Allen - Mia Farrow) or those setting new precedents. The changing face of child custody is evident in the following chronicle of the news items of the past few years.

PARENTAL RIGHTS

A number of different issues have been central in recent custody cases involving adoptive and biological parents. Termination of parental rights was the focus of a Michigan case. A Michigan Court of Appeals ruled that a couple must return to her biological father a two year old girl they had raised from birth. The biological father had been unaware that he was the father of the child because the birth mother gave the child up for adoption shortly after birth and named another man as father. She later stated that she had signed the adoption papers under duress and informed the biological father of his paternity. Since the mother's parental rights had already been terminated, the biological father began the custody battle to have the child returned to him and the two biological parents later married. (In a real sense, then, the biological mother, whose parental rights had been terminated, found her way back into the picture through the biological father.)

The question of parental rights was also addressed in the case of a Georgia woman. She lost a custody battle when the Supreme Court denied her custody of her biological son who was adopted by a Kentucky family after the child was accidentally switched at birth in the hospital. The accidental switching went undiscovered until the biological mother was divorcing, and her husband claimed that he was not the father of the boy they brought home from the hospital. Subsequent blood tests revealed that neither was the biological parent of the child. The mother adopted the child she had raised but also sought custody of the child who was adopted by the Kentucky family. Although the judge awarded custody to the Kentucky family, the Georgia mother was allowed visitation rights. The judge stated that although there were no grounds for terminating the Georgia mother's parental rights, the Kentucky family had developed rights and that there existed "a bonding and familial relationship that no court ruling can undo." The Kentucky family contended that the case bears a similarity to a divorce, and that the custody ruling should be based on a child's best interests. In the ongoing custody battle, the biological mother contends that the adoptive mother has emotionally and physically abused the boy and she has refused to return the boy to the Kentucky parents following visitation.

Race and drug addiction figured in a Pennsylvania case. An Allegheny County Common Pleas Court judge ordered that a seventeen month old boy must be returned to his biological mother who is undergoing treatment for drug addiction. The boy has lived since he was six days old with a foster family who sought to adopt him. The mother's drug use during pregnancy had left the child addicted to cocaine and heroin at birth. The biological mother had been visiting her son twice a week for six months prior to the judge's decision. She has three other sons who are in the custody of her aunt. A New York social worker described the judge's decision as "institutionalized child abuse." Although the judge declined to say why he reached his decision, members of the African-American community had objected to the foster placement of the child, who is black, with a white foster family.

Temporary guardians of a five year old girl based their custody battle on "best interests" considerations. The New Jersey couple sought to overturn a Superior Court judge's decision to return the girl to her biological father. The couple had acted as temporary guardians of the child since her mother's death several months before. Although the biological father had been separated from the child's mother and had not seen the child since she was 18 months old, the father was awarded custody. Citing the father's failure to provide proper financial support and proper medical care, as well as an unwillingness to allow the temporary guardians to maintain ties with the child, the temporary guardians' attorney contends that the court should re-examine the matter, since it has failed to consider the child's best interests.

CHILD ABUSE

Custody cases involving sex abuse allegations are among those most frequently encountered in the news. These days, however, the accuser may be viewed as the villain in court. This was the case for the mother of a six year old boy who is in the custody of his paternal grandparents. She has seen her son only one time in 22 months. Three years ago the mother lost custody of the child to the paternal grandparents after she had accused her husband and his family of sexually and physically abusing the child. The judge ruled at that time that the accusations were untrue and were traumatizing the child. Her twice weekly supervised visits with the boy were suspended 22 months ago by another judge when the mother continued to complain of abuse by the grandparents. The grandparents had sued for custody of the boy when their son died a short time before his divorce was to become final. They stated that the mother was mentally ill and fabricated the sexual and physical abuse accusations. They reported that the boy was afraid of his mother and was traumatized by physical examinations each time she reported abuse. What is unusual in this case is the length of separation of the mother from her child, which custody experts have reported is against family court policy. The case has been described as a "study in psychological warfare" with "a platoon of therapists" on both sides.

Although not a custody dispute, a New Jersey case might have implications for custody cases in which one of the disputants is accused of sexually abusing his or her child. The conviction of a woman accused of sexually abusing children at the day care center where she worked was overturned by a New Jersey Appeals Court which stated that she was denied a fair trial since she had been convicted on the basis of expert testimony that should have been excluded from the trial. The appeals panel objected to the expert's presentation of theories about a condition called Child Sex Abuse Syndrome as if they were fact. The appeals panel found that the judge had compromised the court's impartiality since he did not allow the defense to have direct access to the children, who had testified on closed circuit TV. Additionally, the judge had allowed some of the children to sit on his lap in view of the jury. The woman's defense attorney claimed that the pretrial police interviews of the children were "tainted" by leading questions and, therefore, the testimony of the children would no longer be admissible.

Sex abuse of another variety resulted in two Illinois parents' loss of custody of their child. The couple, who hired a stripper to entertain at their son's twelfth birthday party, were found guilty of permitting the sexual abuse of a child and were given fines and jail sentences. The boy's six year old sister and three year old brother were also at the party. As the newspaper writer summarized this case, "The state has taken custody of the birthday boy."

Other forms of child abuse figured in custody cases in the news. Following a bitter custody battle of almost a year, the father of a three year old boy shot the boy in the head and then killed himself in what was called a murder-suicide. Friends and family of the dead father stated that the mother drove her husband to insanity by treating the son improperly and having the father followed during his visitation with the boy. However, the mother's attorneys stated that the father repeatedly threatened to run away with the child and actually carried this threat out for a five day period. One of the mother's neighbors reported a past suicide threat made by the father. Mourners noted the failure of the justice system to protect the child, and the lack of any mechanism which separates idle threats in such bitter custody disputes from real danger to the child.

Following the death of a three year old who was returned to his mother three times in spite of her history of mental illness and violence, the state of Illinois moved quickly to address the issue of protection of the child in custody cases. The Illinois Senate and House lawmakers unanimously voted to put an immediate effective date on a bill that would place the best interests of a child first in cases of abuse and neglect. Judges' decisions were previously based on policies that called for reuniting, wherever possible, the families involved in cases of abuse. A state task force began the study of the child custody laws in order to recommend changes in the way the state handles abused and neglected children.

CHILDREN'S RIGHTS

Abused children (and those in custody cases where abuse is not an issue) are involved in a struggle to establish their rights regarding their custody. An eleven year old Florida boy who has reportedly been in and out of foster homes and returned periodically to an abusive alcoholic father and neglectful mother has sued his parents for divorce and wants to be adopted by the foster family he currently lives with. The biological parents, who are separated, want to regain custody of the boy. Legal experts feel this is a test case in which it will be determined whether children have the same constitutional rights as adults and how to balance the rights of adults and children when they are in conflict. One law professor cites the well recognized constitutional right of parents to control the custody of their children, and suggests that this proceeding could transform the view of a child from that of the property of parents to human beings with rights of their own. Opponents feel the allowance of a suit brought by the child sets a dangerous precedent of a child choosing his own parents.

PARENTAL HOMOSEXUALITY

States differ in their interpretation of the impact of parents' homosexuality on parental fitness and on the best interests of the child. In some states, parental homosexuality does not establish a presumption of unfitness. For example, for the first time in New Jersey, a state Superior Court judge has made a ruling that allows a lesbian to adopt her partner's child. The judge stated that the adoption was in the best interest of the child and that the attitudes of society toward homosexual relationships should not have a bearing on the court's decision. The attorney for the couple praised the judge's decision as one which would assure lesbian and gay couples with children that their families can be protected and legally recognized in the state of New Jersey.

Conversely, based on a 1985 Virginia Supreme Court ruling that said a parent's homosexuality is a legitimate reason for losing custody, a Virginia grandmother was awarded custody of the two year old son of her lesbian daughter. However, the American Civil Liberties Union and a University of Virginia psychology professor who has studied the children of homosexuals both agreed that homosexuality does not have an adverse impact on the children of homosexual parents. The child's mother and the mother's female companion engaged in a fight for custody of the two year old boy. The case is highly unusual in that it involved a nonparent (the grandmother) and a parent whose sexual orientation is cited as a parental shortcoming. In his decision, the judge let stand a court ruling that the child must live with his grandmother. A law professor at Harvard University found the ruling hard to defend, especially since the biological child has been with his mother since birth. He noted that there are currently very few laws protecting gays and lesbians. The Center for Lesbian Rights found the decision an attack on nontraditional families, and a University of Pennsylvania law professor noted that while states differ in considering parental homosexuality as establishing a presumption of unfitness, some states have explicitly found parents sexual orientation relevant only if it can be established that it harms the child.

Prejudice was the issue in another custody case involving a lesbian. An Oklahoma State Appeals Court denied a lesbian mother custody of her two girls, with the judge quoting from the testimony of an expert witness cited in a 1982 Oklahoma Supreme Court ruling who suggested that children of lesbians might be subject to prejudice and the disapproval of others. The woman's lawyer argued that the same rationale might apply to an African-American mother and a white father since historically there has been discrimination against the children of such marriages.

Homosexuality was a nonissue in another custody dispute. A Washington woman who relinquished her parental rights and gave up her three year old son for adoption was involved in a fight to regain custody of the child who is now to be adopted by a gay couple. The woman claims that she overcame a drinking problem, married and leads a normal life, and therefore, is able to care for her son again. She claims that she gave up custody after being pressured by state officials and that she missed the deadline for changing her mind by one day. She denies that her attempt to regain custody has anything to do with the homosexual couple slated to adopt the boy. The assistant attorney general concluded that the child's placement with foster parents with prospects of adopting the child is in the child's best interest and that the mother has no legal standing in the matter of deciding where the child should be placed.

GRANDPARENTS' RIGHTS

Increasingly, newspapers report items involving grandparents' rights, although the issues are not so clear in cases where the grandchild's parents were never married. The Pennsylvania Supreme Court has ruled to allow a grandmother to visit her five year old grandson even though the parents of the child were never married. According to the state Grandparents' Visitation Act, the court may allow visitation rights to grandparents when parents have been separated for six months or more. The attorney of the mother argued that this act was not applicable because the parents had never been married and had never lived together. However, the Supreme Court justice who handed down the ruling interpreted the term "separated" to mean a separation of parents after the conception of the child rather than after they had been married or lived together. Another justice opposed this interpretation of the word "separated." The ruling has no value as a legal precedent.

FINANCIAL SUPPORT OF
COLLEGE AGE CHILDREN

The notion that divorced parents are obligated to pay their children's college expenses has recently been challenged. In spite of 30 years of previous court rulings calling for divorced or separated parents to pay for college expenses of their children, the Pennsylvania Supreme Court ruled in November of 1992 that separated and divorced parents are not legally responsible for financing their children's college education. The Supreme Court, in overturning the earlier decisions, cited a 1971 case in which a father agreed in a divorce settlement to pay for the college education of his children. The court stated that the ruling applied only if there was a signed agreement, and that there was not an unequivocal adoption of a legal principle that a parent has a legal obligation to pay college expenses. Lawyers felt that the decision would have far-reaching effects on children who cannot get their parents to agree on college and would cause litigants in divorce cases to seek provisions for the payment of college expenses, thereby greatly changing the negotiation process.

A new law was later passed in Pennsylvania, requiring support of college age children in some cases. However, in January of this year, a Chester County family court judge ruled that the six month old Pennsylvania law requiring divorced or separated parents to support an adult child through college is unconstitutional since it violates the equal-protection rights of separated and divorced parents. He noted that married parents have no similar legal obligation and are not required to pay college students' expenses. Finding no "rational basis for treating students and/or parents differently based on the parents' [marital] status," he finds the statute "clearly unfair and discriminatory."

SMOKING AS AN ISSUE
IN CUSTODY CASES

Although smoking is more increasingly an issue in child custody disputes, a recent case is somewhat unusual in that a judge decided to reopen the child custody issue for a Mt. Laurel, New Jersey couple whose son suffers from respiratory problems. The couple currently share custody of their two sons. However, the father seeks to deny his wife custody of the boys because of her smoking habits. The psychologist who initially recommended that the boys reside with their mother has been ordered by the judge to reevaluate the matter, since the effect of environmental tobacco smoke on the boy's health was not considered in the first evaluation. Currently, the mother is allowed to smoke in her house and car in the absence of her children as long as she stops ten hours before the return of the children. Custody has rarely been denied on the grounds of smoking, according to a law professor at George Washington University and the executive director of Action on Smoking and Health.

LAWSUITS

The following two cases illustrate the point that any participant in a custody dispute is open-game for a lawsuit (in addition to beleaguered mental health professionals). Litigants in custody disputes, disgruntled by the outcomes of cases or the consequences of custody dispositions, may sue for and be awarded damages. A California man sued his former wife who abducted their child to her native country of France. The couple was awarded joint custody of their daughter when they divorced. Following the child's abduction by the mother, the father sued the mother and was awarded 12.5 million dollars in damages. The government and those in the judicial system are not immune from such lawsuits. In a multimillion dollar lawsuit in Philadelphia, a Pennsylvania man is seeking damages from the state, the county, the court system and five judges as well as two of his former attorneys following a bitter divorce and custody case. He is seeking increased access to his two daughters as well as refusing to pay court-ordered child and spousal support, indicating that the payments are "arbitrary, confiscatory and punitive."

EXPERT WITNESS TESTIMONY

A number of issues unrelated to specific custody cases have also been in the news. However, these will have a bearing on future cases. For example, the use of expert witnesses and expert testimony has been under scrutiny lately. Critics of the use of experts in court cases called upon the Supreme Court to decide whether judges can bar the scientific testimony of expert witnesses whose methods of research have not been "generally accepted" by the scientific community (the so-called "Frye Test"). In the past, courts have ruled that an expert's methods have gained general acceptance when they are subjected to peer review and published in professional journals. However, many fear that such a criterion would prevent valid new theories from gaining admission on the witness stand, and they argue that many of today's accepted scientific ideas were once considered to be eccentric. Many scientists object to reliance only on peer review journals as a measure of research credibility and contend that high quality research exists even though unpublished and unpopular.

The guidelines for admissibility of expert testimony based on scientific or technical evidence in federal court, set in 1923 in Frye vs. the United States, state that expert testimony "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." According to Federal Rules of Evidence adopted in 1975, experts can testify "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact issue. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [upon which the testimony is based] need not be admissable in evidence." Therefore, the Federal Rules of Evidence, although allowing for the importance of general acceptance, do not limit admissability on the basis of general acceptance.

Until the case of Daubert vs. Merrell Dow Pharmaceuticals, Inc., courts have lacked clear guidelines for when to apply the FRE vs. the "Frye test" in assessing the admissability of expert testimony. In the Daubert case, the plaintiff alleged that Merrell Dow's morning sickness drug, Bendectin, had caused birth defects in her child. An unpublished reanalysis of pooled data from earlier research led the experts in the case to conclude that, contrary to earlier published findings, Bendectin could have harmful effects. The state ruled that the expert testimony was inadmissable because the reanalysis had not been peer reviewed or published. However, in an appeal last year, the Supreme Court held that the "Frye test" for scientific evidence is no longer applicable, is unnecessarily restrictive, and is superseded by the Federal Rules of Evidence. The court also designated the following as appropriate for judges to consider in determining reliability of theories: procedures and techniques, testability, error rate, and peer review or publication. Opponents of this specification of issues for judges to consider are concerned that they give the judges "obligation or the authority to become amateur scientists" and that these matters are "far afield from the expertise of judges." There are concerns that while this ruling allows for innovative but unpublished evidence, at the same time it may allow for questionable techniques which are not recognized by the scientific community for good reason.

ADOPTION LAW AND CUSTODY

The title of a recent USA Today article says it all: "Chaos in adoption [and custody] law hurts kids." Vagueness in the laws, differences among state laws, and protracted custody battles have often left children's fates undecided for years. While there are few guidelines for adoption cases, there are even fewer for custody disputes. Additionally, law schools do not prepare judges to be advocates for children, and their personal biases often enter into their decisions. Judges' rulings in some cases have raised doubts about whether the best interests of the children are being served.

This unsatisfactory state of affairs led to an effort to provide judges with stricter guidelines in adoption cases. Five years in the making, the Uniform Adoption Act was recently approved by the National Conference of Commissioners on Uniform State Laws. The Act is a model law designed by lawyers, judges and scholars to better protect the rights of children and biological and adoptive parents and to close legal loopholes.

The Act gives a biological mother eight days after birth to change her mind about placing her child for adoption. It also requires courts to notify biological fathers that their children are being placed for adoption. If a father cannot be located, his rights would be terminated after 30 days. He would have six months to appeal this decision, but would have no legal recourse after this time. A father contesting adoption would be required to prove that he would be a good parent, and his record as a parent of other children would be open to examination.

Under the Act, adoptions could not be denied solely on the basis of race or ethnicity of either the children or the adoptive parents. Adoption records would be sealed, denying contact between children and biological parents unless both agreed and had registered with state registries.

Advocates of the Act feel it will eliminate long court battles which leave children's fates undecided for years. Opponents argue that the Act does not provide enough time for biological mothers to change their minds about adoption or for biological fathers to come forward. Some also oppose the sealing of adoption records, stating that open adoptions have become more the norm.

Many feel that a better plan for the protection of children's rights would be to place a time limit on court cases and to have courts give priority to cases involving children.

APA GUIDELINES

The American Psychological Association this year approved guidelines to clarify the role of psychologists in the area of child custody evaluations in divorce cases. The guidelines advise about the purpose of the evaluations and on the preparation and conduct of such evaluations. The call for guidelines was based on the high number of complaints to the APA's ethics committee from parents and attorneys who were critical of the role of psychologists in such cases. Up to the present, only about six states have had such guidelines.

DIVORCE EFFECTS RESEARCH

Research evidence on the effects of divorce on children may change the divorce proceedings process, if some policy-makers have their way. After years of research, there is a growing body of evidence that the negative effects of divorce on children are far greater and more long-lasting than was previously believed. Young adults whose parents had divorced were found to be twice as likely to have a number of problems, including psychological, behavioral, and school problems and poor parent-child relationships than those who grew up in intact families. They were also found to have turbulent lives as much as two decades after their parents divorced. Other studies have found children of divorce 73% more likely to suffer depression in adulthood, twice as likely to be living in poverty as before their parents separated, and plagued by behavior problems. As a result of this research, many are questioning whether children's interests ought to be given greater weight in divorce proceedings. Some states are requiring divorcing parents to take parenting courses or courses on the impact of divorce on children. With overwhelming evidence that children do better with two parents, some policy-makers advocate slowing down the divorce proceedings process, changing public attitudes about divorce or eliminating no-fault divorce. However, others feel these suggestions are unrealistic. The "children's interest first principle," making the interest of the child the overriding consideration in divorce proceedings, has not been implemented in the United States.

PACE-ALERT

The Executive Operating Committee is forming a panel of family law judges to help identify critical custody issues requiring study or discussion by PACE members. IF YOU PERSONALLY KNOW OF A JUDGE WHO IN YOUR OPINION COULD MAKE A WORTHWHILE CONTRIBUTION TO THIS PANEL, PLEASE WRITE OR PHONE DR. BARRY BRICKLIN.

PACE
Turkey Lane Professional Offices - Suite One
P.O. Box 229
Village of Furlong, PA 18925
(800) 633-PACE Fax (215) 794-3386

PROMINENT ADVISORS ON LEGAL ISSUES

PACE is proud to have gained the services of three nationally known heavy-hitters in the family law area.

Although the Professional Academy of Custody Evaluators has as members many persons who hold both a J.D. as well as a Ph.D. or Psy.D., most of these individuals have practices (with a few prominent exceptions e.g., Bruce Sales) which tilt more toward the mental health side of the fence.

Hence, PACE is quite proud indeed to announce the acquisition of three accomplished and nationally prominent attorneys each with special expertise in custody issues as well as family law matters in general. They will serve as Advisors on Legal Issues to PACE. Representing the eastern part of the United States is Albert Momjian. The western part of our country will be served by Forrest S. Mosten. Joy M. Feinberg, who will serve the central part of the country, will be profiled in an upcoming issue of the Custody Newsletter.

In the Philadelphia area, where he is a partner in the prestigious firm of Schnader, Harrison, Segal and Lewis, Albert Momjian enjoys a reputation similar to that of Robert Shapiro, F. Lee Bailey or Alan Dershowitz. He is the person everyone wants if they have a complex situation.

Mr. Momjian received his B.A. from Columbia College and J.D. from the Columbia Law School. He is past president and a current member of the American Academy of Matrimonial Lawyers, the International Academy of Matrimonial Lawyers, and has served on various subcommittees for the Family Law Sections for the American Bar Association, the Pennsylvania Bar Association and the Philadelphia Bar Association. He is a past member of the Pennsylvania Supreme Court Domestic Relations Committee. He has taught in the family law area at Temple University Law School and the Delaware Law School. He has been a family law course planner for the Pennsylvania Bar Institute, has created courses for the Philadelphia Bar Association and has been a faculty member of the Pennsylvania College of the Judiciary. He has served as author, co-author or editor for a wide variety of publications, including "Pennsylvania Family Law," the Pennsylvania Law Journal Reporter, was family law editor for the Pennsylvania Judiciary News, an associate editor for the family law section of the Philadelphia County Law Reporter, a member of the editorial board of the Pennsylvania Law Journal Reporter, a contributing editor to a book entitled "Family Law and Practice," a contributing editor for "Handbook of Financial Planning for Divorce and Separation," and many, many others.

Included among the positions Albert Momjian has held are Honorary Consul to the Republic of Haiti, consultant to the Pennsylvania House and Senate Judiciary Committee in working out a divorce code, board of directors-Pennsylvania Bar Institute, the Joint Family Law Council of Pennsylvania and a member of the Family Law Advisory Group to the American Law Institute/American Bar Association. He is frequently listed in books which list the "best attorneys" in the country.

Forrest S. Mosten enjoys a similar status in his native California, where he heads his own firm, Mosten and Wasserstrom. His current practice focuses on family law but with an emphasis on alternative dispute resolution, litigation and preventive law.

He served on the Federal Trade Commission as an assistant regional director for consumer protection. He supervised the investigation of nationwide real estate brokerage practices. He is co-founder and partner in what is now called the Legal Clinic of Jacoby and Meyers. He has been a member of the family law sections of the American Bar Association, the Los Angeles County Bar, the Beverly Hills Bar and the California State Bar.

Mr. Mosten has served on the faculties of many prestigious institutions including the University of Southern California School of Law, the University of San Diego School of Law, the Mercer University School of Law, the American Bar Association, the National Institute of Trial Advocacy, the Mediation Institute of America, Wright Institute in Los Angeles, the Pepperdine School of Law, and the Beverly Hills Bar Association. Mr. Mosten has served as chair of the Dispute Resolution Committee in Beverly Hills, has been executive chair of the Lewis M. Brown International Client Counseling Competition, was former chair of the American Bar Association Client Counseling Committee, chair of the California State Bar Committee on delivery of legal services to middle income people, a member of the American Bar Association standing committee on delivery of legal services, member-Board of Trustees at the National Center for Preventive Law, member-Board of Governors, Beverly Hills Bar Association, and founder of the Mediation Institute of America. He has been the featured speaker at dozens of important meetings.

He has published in the Preventive Law Reporter, the Los Angeles Lawyer, the Family Advocate, the Beverly Hills Bar Journal, as well as numerous other publications on an extremely wide variety of issues including national legal health strategies, mediation, violence in families, business disputes, preventive law and world harmony and has himself been the object of articles in USA Today, the UCLA School of Law seminars, the Herald Examiner, and the Wall Street Journal. He was phi beta kappa at the University of California and has his J.D. from the UCLA School of Law. He also studied at the University of Birmingham in England.

PACE is indeed honored to have Albert Momjian and Forrest S. Mosten as members of their Advisors on Legal Issues.

PACE ALERT

Forrest S. Mosten, J.D., a PACE Advisor on Legal Issues, will speak at the First International Symposium on Child Custody Evaluations on Monday November 7, 1994, at the Westward Look Resort in Tucson, Arizona. Mr. Mosten's talk is entitled The Confidential Mini-Evaluation.

The confidential mini-evaluation offers an alternative to the traditional comprehensive and often protracted evaluation process. The workshop will focus on the feed-back aspect of the mini-evaluation; how the evaluator provides observations, impressions and custody recommendations for the parents and their attorneys to facilitate a settlement.

The meeting is sponsored by the Association of Family and Conciliation Courts and the Family Law Section of the American Bar Association.

Also presenting at the symposium are PACE members:

Larry Fong, Ph.D., R.C.E.

Marlene Joy, Ph.D., R.C.E.

Marion Gindes, Ph.D., R.C.E.

PACE ANNOUNCES CUSTODY EVALUATION WORKSHOP

See Page 18

The Custody Newsletter, the official Professional Academy of Custody Evaluators (PACE) publication, wants the kind of information journals ordinarily do not publish. This questionnaire has two purposes. One is to help implement the above. The other is to allow PACE members the opportunity to get to know one another.

1. If you were a mentor for a young person about to begin custody evaluations, and you wanted to offer a few sentences of advice, something you learned from experience that cannot be gotten from books, what would you tell this person? (You may not write: "Don't do it!")

2. What has been the most troubling or hurtful experience you have had doing custody evaluations?

3. What has been your funniest experience in conducting custody evaluations, either with the participants or in a courtroom?

4. What have you done or published recently that you would like your companion PACE colleagues to know about?

5. What "trap" have you fallen into in doing a custody evaluation (either on cross-examination or any other way)? With hindsight, how could you have avoided this?

6. The "thorniest" issue in performing (non-comprehensive) custody evaluations involves whether or not the evaluator should "see" or evaluate one "side" only. I believe there are legitimate reasons to do this (so long as one limits any conclusions or testimony appropriately).

a. Are there conditions under which you would do this? What are they?

b. What other remarks would you care to offer on this topic?

Name of respondent (optional) ________________________________________________

Address __________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

Telephone Number __________________________

Return to: Editor, The Custody Newsletter
Turkey Lane Professional Offices - Suite One
P.O. Box 229
Village of Furlong, PA 18925
(800) 633-PACE Fax (215) 794-3386

SPECIAL ADVANCE NOTICE FOR MEMBERS OF PACE

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