Custody Newsletter #4

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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.

There is no doubt but that mediation is increasingly being seen as an alternative to adversarial battles. When it is possible to create the conditions to make this happen, that is, to bring the parents to a point where they are willing to accept the idea of mediation, the information in the following article can be very helpful. Dr. Robert D. Strochak gives us very clear guidelines on how his team goes about doing this important work.

A COURT-RELATED CUSTODY

EVALUATION/CONCILIATION

SERVICE

INTRODUCTION

In California, the use of mediation in disputed custody and visitation matters has been mandatory since January, 1982 (1). Since that time, an increasing number of jurisdictions have promoted counseling, mediation or arbitration methods for resolving these disputes (2). Implicit in this procedural change is the tacit recognition that the adversarial system has some limitations in custody matters.

The legal standard in custody litigation demands that the Court decide what is in the child's best interests. This "best interest" standard, an attempt to object-ify criteria for awarding custody, falls short because of inherent difficulties in prioritizing and quantifying these criteria. Is Dad's larger income worth more than Mom's bedtime story telling ability? Is consistency of environment more important than consistency of re-lationships? These, and other issues, make the evaluator's task a difficult one. Often we find ourselves "reaching" for a way to justify recommendations.

In assessing the parent-child relation-ship, psychologists have discovered that standard test instruments, with few excep-tions, provide little information relevant to the purpose of determining whether a parent is "good enough" or "best-suited" for parenting purposes. Some new measuring instruments do hold promise, e.g., Bricklin's Perceptual Scales (3) and Per-ception-of-Relationships Test (4) and the Custody Quotient developed by Gordon and Peek (5). These test help us to "see" the parents through the child's eye, not simply with reference to our own adult percep-tions, scientific or otherwise, of what constitutes good parenting.

Because of these inherent problems in the evaluative process, it would appear that in the majority of cases, the best custody solution, the one most likely to be in the child's best interests, is a solution reached by the parents. This somewhat controversial position is followed by a caveat. The psychologist's principle role in custody determination should be to facilitate the parent's attaining an emotional and attitudinal equilibrium where joint decision making, even on a limited basis, is possible.

This article describes a court-related but independent evaluative/conciliation service for the resolution of custody disputes. The purpose of the service is to help disputing parents reach a custody/ visitation agreement and to outline a method for implementing this agreement, a "conciliation" plan rather than a "treatment" plan. A second purpose is to provide the Court with recommendations for resolving the dispute based upon sound clinical data, in the event that the case reaches the trial stage. A third purpose is to curb the existing tensions and hostilities between the parents. These ambitious goals are pursued within the context of a six session structured format,which combine educational, mediation and counseling methods.

METHOD

Court Conciliation and Evaluation Service (CCES) in Bucks County, PA is a private group of psychologists and social workers with an informal liaison with the Court of Common Pleas in Bucks County. CCES receives all its referrals from the Court and agrees to accept no referrals from private attorneys directly. It reports to the referring Judge. Fees are assessed to the participants. The current fee for the six session procedure is $550, to be shared equally by both parties. A contractual arrangement exists whereby the Court subsidizes clients who cannot afford the evaluation fee. The Director of CCES has control over clinical methods, the hiring of consultant/practitioners and the setting of fees. Clients of CCES, and their attorneys, agree to waive their right to summon the CCES evaluator for cross examination, an unusual feature of this program worthy of discussion in another correspondence.

The conciliation/evaluation process is initiated when the disputing parties and their attorneys meet at a preliminary hearing with the Custody Conference Officer, who is a Court appointed official not affiliated with CCES. The Custody Conference Officer does preliminary fact-finding and information gathering, makes an initial attempt at resolving the dispute, or failing this, refers the parties to CCES and establishes a trial date before the judge.

The parties acknowledge that their par-ticipation in the conciliation/evaluation process is voluntary. They may choose any other mental health professional to serve as conciliator/evaluator as long as they both agree on the person to serve in this capacity. They are told that a report shall be submitted to the judge, but that the primary purpose of the sessions is for them to reach a mutually satisfying resolution and to lessen the hostility and tension between them. If the clinician is required to make recommendations, these would be discussed with them, but the clinician would be excused from appearing as witness for either party at a formal hearing.

The conciliation/evaluation procedure consists of six structured sessions, each having a particular goal or objective (Table 1). It is important that the clinician stay within the proscribed format. Extra sessions are discouraged because they may be used by one party to "hold on" to the other. Both individual and joint sessions are held with the principles, while new spouses, live-in partners and

grandparents may be included in a later session. The child (or children) is interviewed as well.

TABLE 1: CCES FORMAT: METHOD AND OBJECTIVES

Session Participant Method Objective

1 Mother (or Father) Interview a) Ascertain parent-child Child Questionnaire relationship; b) Ascertain

Custody Quotient parent's post-separation/

divorce adjustment; c) Educate as to purposes of procedure;

d) Understand grievances and concerns; e) Allow emotional ventilation.

2 Father (or Mother) Same as #1 Same as #1

3 Mother or Father Interview a) Discuss and prioritize grievances and concerns; b) Negotiate and resolve "easier issues"; c) Educate re custody arrangements.

4 Children Individually Interview a) Assess child's reaction Bricklin Per.Scale to custody conflict; b) Assess Perc.of Relat.Test parent child relationship from Play child's perspective; c) Drawings Alleviate stress of having Family Interview to choose sides.

5 Joint session Interview a) Provide feedback re child's possibly including needs; b) Resolve "harder" new spouses and issues; Discuss "sharing re- grandparents sponsibility" rather than

"custody."

6 Joint session Interview a) Outline Memo. of Under- poss.includ.child standing; b) Discuss implemen- tation of conciliation plan.

RESULTS

Fifty-three (53) of the last one hundred (100) completed cases reached an agreement. An estimated 80% of all custody/visitation cases are diverted from a full court hearing because resolution is attained either

at the first level (with the Custody Conference Officer), the second level (with CCES) or the third level (a compromise reached between parties based upon CCES recommendations). Further research is to required to answer the question whether our efforts have a long term beneficial effect on parental hostilities. Although there may be initial improvement due to the impact of the counseling process, without reinforcement, these effects may fade. However, the parties are exposed to an alternative method of conflict resolution to which they may refer if problems again arise.

DISCUSSION

The advantages of the CCES procedure are as follows: 1) Parents are provided with an alternative model for conflict resolution within the adversarial system; 2) Other interested parties, e.g. grandparents, step-parents, may be included in the conciliation/evaluation process and their roles clarified; 3) The children gain relief from the effort to help their parents reduce stress and conflict; 4) Attorneys retain their proscribed role and continue to actively represent their

clients; 5) Court calendars are eased and judges have access to important clinical information; 6) Even when conciliation fails, and parties go to a full hearing, they are usually less strident because of exposure to the CCES process; 7) When "deficits" are identified, in either parent or child, a conciliation plan can be developed to remedy the problems in evidence; 8) the child's relationship with both parents is supported and protected.

The following questions are raised: 1) Does

combining a conciliation and an evaluative role pose ethical problems such as compromising the conciliator's neutrality? 2) Is the evaluative component thorough enough for legal purposes? 3) Do efforts to de

velop co-parenting skills and maintain the child's physical and emotional access to both parents blind the clinician to the possibility that one parent indeed has superior claims to primary custodianship? 4) Is the parent who assumes the most cooperative attitude rewarded more than the parent who may be more convinced of his/her rightfulness and therefore is more stubborn? Perhaps these issues are worthy of further dialogue through the Custody Newsletter.

SUMMARY

Court Conciliation and Evaluation Service offers an alternative process within the adversarial system for the resolution of custody/visitation disputes. Our experience convinces us that most children are bonded with both parents, albeit in different ways and with varying intensity at various stages in the developmental cycle. Efforts to empiricize the "best interests" standard are worthwhile, yet these efforts are handicapped by difficulties in quantification and uncertainty over priorities. We advocate the abandonment of the legal terms, custody and visitation, in favor of discussion about how a family shall be restructured and how responsibilities for the children shall be shared. We believe that in most cases, a custody arrangement jointly determined, with rights, privileges and responsibilities carefully outlined, is far superior for the child than one imposed by fiat. Clearly a goal of conciliation/evaluation services should be to enhance the child's relationship with each parent at a time when that relationship may be most threatened.

REFERENCES

1. California Civil code, 4604, SB 961, Senator Alan Sieroty.

2. Hopkins, P.E., Evaluative mediation-upholding the child's best interests. Conciliation Courts Review, 1982, 20, #2, pp. 65-70.

3. Bricklin, B., Bricklin Perceptual Scales, 1987, Village Publishing, Doylestown, PA.

4. Bricklin B., Perception of Relationships Test, 1989, Village Publishing, Doylestown, PA.

5. Gordon, R. and Peek, L.A., The Custody Quotient, 1988, The Wilmington Institute, Dallas, TX.

AUTHOR: Robert D. Strochak, Ph.D.
724 Parmentier Road
Warminster, PA 18974
(215) 355-4967

Jack Schwartz adds his comments to those expressed by Carl Hoppe in the last issue of CN. (Jack's piece, an excellent one, was shortened considerably since Dr. Hoppe covered some of the same territory.)

As the principle author of the BPS and PORT, tests data-based for custody issues e.g., matching available parental strengths to prevailing needs of children, let me take this opportunity once again to say LOUD AND CLEAR: I am not against the standard tests. How could anyone who worked for years at the side (as researcher and co-author of Zygmunt A. Piotrowski, renowned expert in Rorschach, TAT, and drawings be against these wonderful tools? I love them, use them, and have written about them. The BPS and PORT are not meant to replace them. They simply add information that cannot accurately be inferred from standard tests.

In the present article, Jack Schwartz focuses on an exceedingly important aspect of a custody evaluation, a parent's attunement to a child's psychological status.

MORE ON TRADITIONAL

PSYCHOLOGICAL TESTS

AND PARENTAL "ATTUNEMENT"

The use of psychological tests in child-custody evaluations has been more and more discouraged over the last decade. The reasons for this relate to the development of new, more specialized tests (such as the PORT and BPS) and, the notion that tests such as the CAT, TAT, H-T-P Projective Drawings, Rorschach, and the Bender Visual Motor Gestalt Test, were primarily designed to elicit data reflecting psychopathological trends or disturbance, rather than data related to parental effectiveness or competence.

Application of standard tests in child custody matters has been somewhat unreliable and inconsistent, and often based on the evaluator's creativity to use resultant data in a special way. For example, if a parent is given a Rorschach which reveals schizoid phenomena, it could be inferred from the data that the individual's parental capacity would be impaired. The inferential use of psychological test data leaves the evaluator quite vulnerable to charges related to this inferential leap.

Despite these factors, I firmly believe that psychological tests have a place in child-custody evaluations, beyond identifying parental psychopathology. Child-custody evaluations are built around assessing not only the individuals within a family, but how they relate to one another. When I speak of relate, I mean both the conscious and unconscious communications between family members, the quality of attunement, degree of sensitivity, and level of awareness of the others' well-being or lack thereof. What I find to be an extremely valuable construct in my assessment process is the level of awareness each parent has in regard to the psychological well-being and functioning of the child(ren). The previously mentioned psychological tests, although not completely conclusive, do clearly provide evidence of dysfunction, which in turn can be used to assess whether a parent is likely to be biased in his or her perception of a child. It is true that parents are not trained in diagnosing psychopathology and problems with learning, yet a sensitive parent, on some level, does have an awareness that something may not be going well for a child.

I have found that the degree of a parent's awareness of their child's maladaptive behaviors, learning problems, and/or psychological difficulties positively correlates with sensitive and involved parenting. For example, I had assessed two parents and their precocious nine year old daughter regarding a child-custody dispute. For the most part, both parents described their daughter as well-functioning and intellectually advanced. However, even though the test material confirmed that she was a very bright child, the projective data revealed a strong emotional conflict. This information was then compared with the parent's respective profiles and reviewed, in order to assess which parent had a more accurate description of the child's psychological state. This, in turn, helped me discern which parent was the more attuned parental figure. (Editor's note: In a future issue, we will ask the author to state more precisely exactly what he looks at to determine "attunement.")

Discrepancies in the parents' perceptions of the child's mental health, and the actual mental health of the child, can point to significant parental denial or projection of emotional conflict. This could be observed in a case where I recognized that an eleven year old boy had noticeable depressive symptoms, yet neither parent was aware of their son's condition, pointing to the high degree of denial that pervaded this family.

AUTHOR: Jack Schwartz M.A., NC Psy.A.
Senior Clinical Psychologist
Passaic County Diagnostic Center
262 Main St.
Patterson, NJ 07505
(201) 881-4596

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ALERT! ALERT!

DO INTERVIEWS WORK?

Since the early 1960's when the research project to develop data-based tests especially designed to answer custody questions reached the end of its first year, I have questioned the true value of interviews in custody evaluations (see the Bricklin Custody Evaluation Report, 1990, Village Publishing, Inc.)

Even before this, I had written my very first book from inside a maximum security prison (the old, now torn-down Eastern State Penitentiary in Philadelphia). The most amazing thing about the inside of a prison to the young and relatively inexperienced me (aside from the wretched smell-- a reason which made me vow never to go to jail) was the apparent normalcy and "niceness" of many of the inmates. Warm smiles, intelligence, oh-so sincere looks combined with seemingly spoken-from-the-heart statements-- many of them outright lies.

I learned early in the game how convincingly people can lie. For a while I thought, "Well, that's prison for you; the inmates lie." Over the next few years, as the custody project launched into high gear, I saw that non inmates do the same thing, and with the same degree of conviction, warmth, sincerity and apparent ease.

True, at the outset, I had already been familiar with some of the 1945 to 1955 research of Dr. Zygmunt A. Piotrowski, in which the diagnostic accuracy of interviews was shown to be relatively poor (in the absence of extensive long term follow-up information; the presence of the latter helps a great deal).

But like so many of the misguided souls I run into daily in the court systems, I at first believed greatly in my ability to detect liars with my keen, Sherlock-Holmes-like clinical eye.

Following life in prison (where I did the initial research-- and wrote the first book-- on the Hand Test) and the first years of research on developing data-based custody tests, I came to see just how poor the interview really is as a diagnostic tool, and how many mental health people are taken in by the lies of their interviewees.

I have lectured and written extensively on this issue in court and out of court. Many judges are only marginally persuaded, and still will rely heavily on testimony based on interviews. And most psychologists, psychiatrists and social workers believe absolutely in their ability to detect liars (many thinking that while other professionals may be fooled, they aren't).

My position receives a tremendous boost with the appearance of a most important paper in the American Psychologist (Vol. 46, No. 9, Sept. 1991, Pp. 913-920). The work is called "Who Can Catch a Liar?" and is written by Paul Elkman and Maureen O'Sullivan.

Among the groups sampled (in ability to detect lying among videotaped persons describing their feelings) were members of

the U.S. Secret Service, Central Intelligence Agency, FBI, National Security Agency, Drug Enforcement Agency, California Police, judges, college students, working adults and psychiatrists.

Only members of the Secret Service were any good at detecting lying.

(Another interesting finding was that the individuals who were good at detecting lying paid more attention to non verbal than verbal cues. The fact that non verbal information has a "richer" story to tell than does the verbal is incorporated in both the BPS and PORT.)

Address responses to:
Editor, The Custody Newsletter
470 General Washington Road
Wayne, PA 19087
(215) 688-5502

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Dr. Tanenbaum advises what to watch out for in dealing with attorneys.

1. Assuming naivete or sophistication of counsel, including freedom from or propensity to be "persuasive."

2. Agreeing to serve as expert without knowledge of basic "fact pattern." Failure to take an adequate history.

3. Agreeing at outset to serve as one-sided evaluation.

4. Taking a contingency fee.

5. Taking allegations at face value without independent corroboration.

6. Taking a predetermined position of bias-- This could be about an individual e.g., a specific parent, or an issue e.g., not splitting siblings, etc.

7. Yielding to undue pressure from counsel.

8. Acceding to unrealistic time line.

9. Allowing manipulation with respect to content of report, testimony, etc.

10. Entering into a dual relationship with a client, e.g., serving as both evaluator and therapist.

11. Failure to appraise/clarify the modified nature of confidentiality.

12. Other: (less common);

a. Becoming involved in a case without having contact with client's attorney; or in pro se case. (Editor's note: I presume Dr. Tanenbaum refers to a parent who is representing himself or herself.)

b. Failure to inquire about relevant records/data and persons involved in case.

c. Requesting/receiving too much data from one side.

d. Role confusion/diffusion, e.g. shifting from impartial expert to "advocate."

e. Statements in a report have different, more literal, meaning in a courtroom than they might for a colleague. Wording must be precise and accurate.

f. Under reporting, minimization, misrepresentation, or omission of data in reports; inconsistent statements in reports, statements unfavorable to client in report.

13. Confusion between who is the client, the attorney? or parent? or child?

14. Failure to "interact" with counsel or judge at trial.

15. Don't be "hired gun"; don't perjure self or become argumentative. (You are not attorney).

16. Missing opportunity to use re-direct phase of trial to expand upon or correct/clarify direct and cross examination phases ("it ain't over yet").

17. Practicing outside of scope of one's expertise.

18. Administering tests under less than optimal condition or not using standard procedures (i.e. unmonitered, as "take-home assignment," in presence of other "relevant" parties).

AUTHOR: Robert L. Tanenbaum, Ph.D.
Tanenbaum and Berman Psychological Associates
Suite 325 GSB Building
1 Belmont Avenue
Bala Cynwyd, PA 19004
(215) 664-3442

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SHOULD SOME TESTS NOT BE USED

IN CUSTODY EVALUATIONS?

Dr. Pither's letter below brings up an exceedingly complex issue, one in which I would like to involve CN readers: are there tests which are of particularly dubious value in custody evaluations? The author feels there are; I am not so sure. The critical variable it seems to me is not really the test; it is rather the evaluator's ability to properly limit the scope and application (the "meaning" in the real world) of a test's findings. This goes far beyond standard error, reliability and validity issues, into territories rarely considered in the scientific literature. One such "territory" is that of "faking responses," an issue which Bruce Pither takes up in reference to the Millon. One aspect of the issue regarding the degree to which a respondent's answers can be "trusted" is an issue I have never seen addressed in the literature: the ability of an evaluator to elicit in a respondent a desire to respond honestly. I personally have no doubt in my mind but that some evaluators are better at this than are others. Here we are in a conceptual area akin to that mentioned by psychologist Eugene Gendlin when he speaks of outcome research in psychotherapy. When he claims that researchers in this area should only study situations where psychotherapy has been successful (because, he argues, these are the only situations in which psychotherapy has indeed "happened"), he moves the discussion of examiner-treatment-effects into new conceptual waters.

To put this matter in the simplest terms, some evaluators elicit accurate data of their respondents; others do not. A research investigator which would make use of the former would be able to answer important questions; research studies making use of the latter would be meaningless. (And with most published research, this information is not available.)

As the author of the BPS, I am particularly sensitive to the fact that some evaluators create a mind-set in their children respondents to answer accurately; other evaluators do not.

I am not certain what exactly is in the (subtle and overt) "mix" the evaluator who elicits honest responses presents to his or her respondents such that they are motivated to answer, so to speak, from the heart. (I do not think it is the ability to make a respondent merely "comfortable"; "comfortable" respondents, I suspect, feel very comfortable lying. I think rather it is a blend of seriousness and graciousness, combined with an emotionally-neutral manifestation of expertise and authority, which collectively say to the respondent: "If-you-lie-I-will-catch-you; hence there's no point in it. Combined with this, there must be an aura which says: I will never seek deliberately to hurt you because of your answers; I will use them in ways that I truly believe are in your best interests.)

Whatever it is, in any event, some evaluators have it and others do not.

To return to Dr. Pither's concerns: if one test yields results not in keeping with other data, the decision maker (i.e., whoever is going to utilize the data) needs to be given all relevant information. In a case where it is suspected a respondent is not answering honestly (presumably the test data does not "match" other data), the decision maker must be told this is the case, and that the subsequent data needs either to be taken with a grain of salt, or, that it may add a new dimension. Here's Dr. Pither's letter.

LETTER TO EDITOR: IS THE MILLON

USEFUL IN CUSTODY EVALUATIONS?

I read with interest Dr. Hoppe's article (CN, No. 3) regarding psychological testing in custody-visitation litigation and I am in agreement that testing serves a useful purpose. However, I winced when he mentioned the Millon Clinical Multiaxial Inventory as a possible measure.

I find the MCMI a useful test in my practice and generally prefer it over the MMPI-2 because of its ease of administration and the quality of the computer-generated reports. However, I believe it is not suitable for use in custody evaluations

because of the relative ease with which it can be faked. I refer interested readers to Wilfred Van Gorp's and Robert Meyer's article on the subject entitled "The Detection of Faking on the Millon Clinical Multiaxial Inventory (MCMI)."

Requests for reprints should be addressed to Wilfred G. Van Gorp, West Los Angeles Veteran's Administration Medical Center, Psychology Service (B116B), Wilshire and Sawtelle Boulevards, Los Angeles, CA 90073. The article was published in the Journal of Clinical Psychology, September, 1986, Vol. 42, No. 5.

AUTHOR: Bruce F. Pither, Ph.D.
Clinical Psychologist
726 College Avenue
Santa Rosa, CA 95404
(707) 571-7648

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In this letter, Steven Sprengelmeyer stresses the importance of including traditional tests in evaluations. This would be of special importance in the type of case he mentions, where abuse is (perhaps) part of the picture. (In the next issue of the CN, we will feature a state-of-the-art review of sexual abuse allegations.)

LETTER TO EDITOR: ANOTHER PLEA FOR

RECOGNITION OF IMPORTANCE OF

TRADITIONAL TESTS

This letter is being returned along with the Custody Newsletter Survey No. 10.

In the last three years I have had the opportunity to participate in approximately nine custody cases and fourteen assessments of people charged with sex offenses. I have seen an increasing number of seriously disturbed individuals, and the degree of psychopathology unfortunately seems to be on the increase. Included in that increase has been a number of parents involved in divorce actions, who are involved in custody disputes over very young children. In both the backgrounds of offenders and divorcing parents I am finding people who have suffered significant traumas or attachment disorders in their childhood, and have developed significant personality disorders and relationship problems.

Because of these complex problems, it becomes even more important to do a comprehensive assessment of the personality

and control issues in the lives of these individuals. I feel that objective measurement of psychopathology is of paramount importance, and something which is lacking in many assessments.

I am making this plea regarding assessment of pathology in parents because I unfortunately have had the opportunity to see the end results of some of that pathology when I have evaluated offenders and discovered their family pathology. After years of working with a large number of children and families involving abuse and neglect I come to the conclusion that the cycle of violence is not a theory, but a fact.

AUTHOR: Steven Sprengelmeyer, MA, MSW, ACSW, LSW, BCD.
Suite 527, Fischer Building
909 Main Street
Dubuque, IA 52001
(319) 557-7599

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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.

MOTHER ORDERED TO FOSTER A "LOVING, CARING FEELING TOWARD FATHER"

Following the divorce, the children were first awarded to the father but then the mother. Father was granted visitation. The mother moved to a different state without notifying the father and hindered his attempts to visit the children. They later returned to the original state, again without telling the father. When he found where they were in 1985, he visited them and found out they "hated, despised and feared" him because he had not supported them nor visited them.

In a subsequent court hearing, a trial court found that "the cause of the... bigoted belligerence of the children toward the father grew from the soil nurtured...by the mother." The court further said that "the mother breached every duty she owed as the custodial parent to the noncustodial parent of instilling love...in the children for their father."

The trial court told the mother she had to do everything she could to create a loving feeling in the children toward the father and "to convince the children that it is the mother's desire that they see their father and love their father."

An appeal followed and the District Court explained that the above quoted orders required the mother to "instruct the children to love and respect their father." It further found she was not protected by the First Amendment from a requirement that she fulfill a legal obligation to undo the harm that she had already caused.

When this reached the Florida Supreme Court, they began their process by saying that they agreed with the District Court of Appeal that a custodial parent has a definite obligation to encourage the relationship between the child and the noncustodial parent. In reading the challenge, the Supreme Court went on to say that this really involved of the mother nothing more than a good faith effort to promote good positive interactions with the father e.g., visitations, phone calls, letters and to not do anything that could defeat these purposes. There was no requirement that the mother express opinions that she does not hold, a practice disallowed by the First Amendment.

As your CN editor has previously stated, these are exceedingly complex issues. It is likely that the mother's poor performance as a custodial parent in the past e.g., relocating without notification, etc.

could have prejudiced the court.

They did go on to make several other points which we will here note. They felt that any burden on the mother's First Amendment rights was "incidental." They felt it was necessary to balance the mother's right to say whatever she would like against the obligation of the state to assure the well-being of the children. They also considered the father's constitutionally protected right to have a meaningful relationship with his children.

I would very much like to hear readers' views on this matter. All of us frequently run into situations where a parent is torn between his or her real feelings (negative!) toward the other parent, and a desire to do things correctly from a legal standpoint, that is, to promote the rights of the noncustodial parent. Further, informed parents know that it is "probably" in the best interests of the involved children to foster a positive feeling toward the other parent. However, what is the parent to do who believes he or she was married to a really destructive person. Ordering this person to nurture a "positive relationship" to me seems like it very well could be on a collision-course with First Amendment rights.

TALK ABOUT DISPARAGING THE OTHER PARENT

A custodial mother told her three sons that their father was an insane sex addict who masturbates and performs sexual acts with animals. A trial court ruled that this was not a positive way for a custodial parent to foster the children's relationships with the noncustodial parent. The Iowa Court of Appeals upheld the trial court's decision.

(The mother also attempted to take pictures of the father with his new wife as they undressed, sent the children for counseling as co-dependents of a sex addict, and repeatedly warned the boys not to be like their father or they too would become sex addicts.)

A WOMAN IS NOT ENTITLED TO VISITATION WITH HER EX-LESBIAN LOVER'S ADOPTED CHILD

This case is being reported because of the interesting things it has to say about "in loco parentis."

Wendy and Janice lived together for 8 years. Janice decided to adopt a 2 month old child. The parties entered a co-parenting agreement in which they agreed that if they separated the child's placement would be arrived at through mediation.

It is difficult to tell all the details of what really happened subsequently but when Janice left, she took the child with her and sought to make sure that the other individual, Wendy, could not see her. Wendy brought an action seeking visitation for physical custody of the child. A court granted summary judgement for Janice, and Wendy went on to appeal. It moved to the Supreme Court of the state.

They found first that Wendy did not have standing to obtain custody. They pointed out that in the case cited (the case on which Wendy tried to base the validity of her appeal) a non-parent could not bring an action to obtain custody unless the parent was unfit or unable to care for the child. This was not the case here.

The part that interested your Editor in this case was what the court had to say about in loco parentis, relationships which resemble a parent-child relationship. The Court said that although a parentlike relationship existed between the child and Wendy, this did not constitute a compelling circumstance (which would have mitigated against a summary judgement) nor could she show that the absence of her having a relationship with the child was really harming the child.

The Wisconsin Supreme Court went on to say that they have never applied an "in loco parentis" approach to custody. They said that this would be inconsistent with the state's adherence to the parental preference standard in resolving custody battles. They said first of all, the parent, in this case the adoptive parent, is presumed to be

able to raise the child better than anyone else.

They went on to say that there is a great need to limit the number of individuals who could claim custody of a child simply because they had some parentlike relationship with that child. Without such limitations, there could be any number of people stepping forward to claim that they had a right to seek custody.

Because there was never really a marriage between Janice and Wendy, Wendy could not make any stand on the basis of the fact that she was an ex-parent, since she had never really been a parent. This is the point, legally, that defeated Wendy's request. Having been a lesbian lover with no formal relationship, there was really no legal category into which she could place herself to launch any kind of battle to gain custody or even partial custody of the child.

(Editor's note: I do not find these advices on in loco parentis as clearcut as does the present court, and we will see in the following case that the in loco parentis principle is not as easily dismissed as seems to have been the case here. Keep in mind that findings and conclusions in family courts show much greater flexibility than is so in e.g., criminal courts, and there may have been things that prejudiced the decision-maker.)

MORE ON IN LOCO PARENTIS - JUST WHAT DOES "LOCO" MEAN ANYWAY

Bernard sought a petition to obtain partial custody or visitation with a child to whom he had been a foster father. The order was originally dismissed because it was found he had no legal standing in relation to the child. He argued that by his actions and intents that the status of in loco parentis was established and it entitled him to the rights and privileges of a parent.

The child had been born to a distant relative of Bernard's wife, Lydia. The biological parent had determined that she was unable to raise the child and the child was given to Lydia; power of attorney was also given to Lydia. The child spent about 1 year with Bernard and Lydia when they separated. The trial court found that there was no legal relationship ever established between Bernard and the child.

The critical difference between this case and the previous one is that there was no real biological relationship or adoptive relationship between either of the two people (Bernard and Lydia) and the child. Hence, the Pennsylvania Supreme Court starts out with the argument that they were dealing with a foster child to both individuals. They further said that the distinction between step-parent and foster child when it relates to standing in loco parentis is not significant one.

They said: "Pennsylvania courts recognize that a person may "put himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption...' The rights and liabilities arising out of that relation are, as the words imply exactly the same as between parent and child."

They further went on to consider whether the short period of time Bernard spent with the child was relevant. They answered by asking another question: "Is a natural parent any less imbued with the rights and duties of parenthood because the child has... (lived with that person less than 2 years)?" They answered in the negative.

It is important to note that the trial court had found that neither party had a clear legal right to custody, as the power of attorney at best permitted Lydia to exercise legal actions on behalf of the child. This kind of arrangement provided no legal protection such as adoption would have had (for either) and clearly provides no basis for a finding of custody. They went on to say that both parents were on shaky but equal footing, and so the best interest and general welfare of the child should be of primary importance. The court went on to give several examples of where the in loco parentis principle was applied, and in your Editor's belief some of these were very different in implication than

what was found in the previously described Wisconsin case. Because of the possible importance to any of our readers who may be interested in pursuing more information on at least Pennsylvania's use of the in loco parentis principle the full quote for this case will be here given: (Wilson v. Wilson; PA Super Court, No. 00539 Phila. 1991, 7/26/91)

The Pennsylvania Supreme Court went on to make several interesting observations noting for example the great horror that frequently arises when a child is separated from its natural mother at birth by an informal arrangement and this person later attempts to regain custody. (In my experience Pennsylvania courts have been wildly inconsistent in what they will do here. That is, it is difficult to know in advance the priority a court will give to the bonding that has taken place between a child and a foster parent over a presumed right for a biological parent to gain custody.) They point to a case where foster parents prevailed over the biological parent when bonding, the behavior of the child and the child's desires weighed heavily in placement with a foster parent. They went on to note how important it is to establish legal rights of parties as early as possible rather than allow a child to live in a limbo situation. They do note that the national policy for children in foster care is to make every effort to rehabilitate biological parents. In the present case, the Supreme Court ordered the case returned to local jurisdiction, where an in-depth custody evaluation could be done.

MARRY THE GUY YOU'RE LIVING WITH OR LOSE CUSTODY

A judge told Judy that she had 30 days from the date of a hearing to marry the man with whom she was living or to move out and establish separate arrangements for her and her daughter. He further said that if neither alternative was accomplished, the 14 year old daughter would be given to the father.

This matter worked its way to the state Supreme Court. This court noted that the cohabitation of a single custodial parent with another person without being married does not create an ideal environment and may constitute a change in circumstance that would warrant a re-examination of the custody arrangement. They went on to note, however, that the best interests of the child must be the rule applied. They further pointed out that just as an act of sexual misconduct by a primary caretaker cannot be considered evidence of unfitness unless the conduct is so bad, given contemporary standards, that reasonable people would find that this would have a very deleterious effect on the children, so too here was there no clear "wrong." They also noted that the child was at least 14 years of age. They noted that this child had chosen to live with the mother. They found that the judge departed from a neutral role and it was directed that the case be assigned to another judge in the cir-

cuit. The mother, of course, was not forced to follow the original judge's orders. (Editor's note: A future CN poll will ask you about your experience with what I call "Judges' arrogance." This certainly seems a case in point-- a situation where a judge allows personal prejudices far too lenient an input.)

MORE ON RELOCATION

As always, case decisions involving relocation manifest extreme variability. In the present case, The Minnesota Court of Appeals held that a trial court acted properly in allowing a divorced mother who had physical custody of her children to move the children to another state over the objections of the husband. Please note that the husband had joint legal custody along with the mother. The Minnesota Court of Appeals noted that when a custodial parent seeks permission to move, the trial

court should presume that removal with that parent will be in the best interest of the child. (Editor's note: This is certainly a growing trend, but not universal at all.)

Also note that these parents had had a post-divorce stipulation to the effect that neither could move without the permission of the other; this stipulation was "over-ruled," the opinion being that stipulated agreements could not overcome the best interests of the child standard.

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