Child Custody Evaluators in Domestic Violence Cases

Editor's Note: Nancy Erickson, an attorney with Legal Services for New York City, in Brooklyn, spoke to New York's Matrimonial Commission in October. Here, she recaps the substance of that testimony.

Several years ago, when I was working in a national legal services office that did research, consultations, and training in family law, it came to my attention that in custody cases involving domestic violence, custody was often being awarded to the abuser. Then, when I started actually representing low-income individuals in divorce and other family law cases, I got several battered women clients who had lost custody to their abusers.

After investigation, it became apparent that the reason they lost custody was that the court-appointed child custody evaluators had recommended custody to the abusers, and the courts followed the recommendations. The forensic evaluators seemed to know little about domestic violence, and they paid virtually no attention to it when they conducted their evaluations. For example, some evaluators held joint meetings with the battered woman and her abuser, which further traumatized the woman. Many evaluators misdiagnosed battered women as having serious psychopathology, when the women were simply showing symptoms of the trauma they suffered at the hands of their abusers.

The evaluators often were critical of battered women who were reluctant to agree to joint custody or unsupervised visitation to the abusers. They labeled these mothers as 'unfriendly parents' and used that label to recommend custody or joint custody to the abuser. Just recently a forensic evaluator recommended joint custody when the abuser-father had a criminal conviction for abusing the mother. In what other situation would the law put a crime victim on the same level as the criminal and require her to have unnecessary contact with the criminal?

I wanted to understand how this could happen. The grant of custody or joint custody to an abuser is virtually never in the best interests of a child. After 3 years of studying forensic psychology, I think I know some of the reasons. Although child custody evaluators are valiantly trying to do the extremely difficult job of helping decide what custody arrangement would be in the best interests of the children, they are lacking some of the basic tools that they need.

What Is Needed

First, they need specific forensic training, which is virtually never included in their graduate programs (psychiatry, psychology, and social work). For example, the American Psychological Association (APA) has guidelines for forensic evaluators and for child custody evaluations, in addition to the ethics rules that govern the practice of all psychologists. A course devoted to these guidelines and rules would be a basic building block of solid forensics training.

Second, custody evaluators need specific training in domestic violence and other types of family violence, such as child abuse ' including child sexual abuse. The State of California, in response to problems in the system that became apparent after the OJ Simpson custody case, now requires that forensics have domestic violence training. Without such training, the evaluator is likely to accept the same myths and biases about domestic violence and battered women held by most lay people ' including myself, until I studied and practiced family law. Like most people, I was very na've.

Third, custody evaluators need specific training in the laws governing custody and visitation in New York, plus the rules of evidence and procedure that apply to expert witnesses generally. The APA rules for forensic evaluators make this one thing clear: Forensic evaluators must know the law. The role of an expert witness is to assist the court. Yet many custody evaluators are not conversant with New York custody law. New York law provides that domestic violence is the only factor the court is mandated by statute to consider when making a custody or visitation decision.

If the custody evaluator does not know the law and has no expertise in domestic violence, the evaluator cannot possibly assist the court in a domestic violence case. Unfortunately, we can expect that one-third to one-half of contested custody cases will involve domestic violence.

The role of a forensic evaluator is a different role than the role the mental health professional trained for in graduate school, which is the role of a clinician ' a therapist, trained to diagnose and treat patients. The APA rules view a forensic evaluator as an investigator with special expertise in areas of psychology relating to children and families. The Second Department, in Wissink v. Wissink, 749 N.Y.S.2d 550 (2d Dept. 2002), set forth guidelines for the kind of investigative work necessary for a comprehensive child custody evaluation: 'In a case such as this, where the record reveals years of domestic violence, which is denied by the child who witnessed it, and the child has expressed her preference to live with the abuser, the court should have ordered a comprehensive psychological evaluation. Such an evaluation would likely include a clinical evaluation, psychological testing, and review of records and information from collateral sources. The forensic evaluator would be concerned with such issues as the nature of the psychopathology of the abuser and of the victim; whether the child might be in danger of becoming a future victim, or a witness to the abuse of some other victim; the child's developmental needs given the fact that she has lived in the polluted environment of domestic violence all of her life and the remedial efforts that should be undertaken in regard to all parties concerned.' Such a role requires specialized training.

Sometimes domestic violence training and psychology training must be integrated. For example, I have taken courses in psychological testing, such as Minnesota Multiphasic Personality Inventory (MMPI) and Rorschach tests. However, those courses did not discuss the fact, for example, that such tests can result in misdiagnoses of battered women. Research shows that battered women given the MMPI-2 can look like they have borderline personality disorder, or even schizophrenia, when they really are suffering from posttraumatic stress disorder, which was caused by the abuse inflicted by the batterer.

Because our state's children deserve the best that we can give them, it can only be hoped that that the legislature and the courts will address the issue of training forensic evaluators receive, as well as other issues regarding their role in the custody process. Without these reforms, children will continue to be placed unnecessarily in custody situations that are not in their best interests.

Nancy S. Erickson, J.D., LL.M, expects to earn her Master's in Forensic Psychology expected in May, 2005, fron the John Jay College of Criminal Justice.

Editor's Note: Nancy Erickson, an attorney with Legal Services for New York City, in Brooklyn, spoke to New York's Matrimonial Commission in October. Here, she recaps the substance of that testimony.

Several years ago, when I was working in a national legal services office that did research, consultations, and training in family law, it came to my attention that in custody cases involving domestic violence, custody was often being awarded to the abuser. Then, when I started actually representing low-income individuals in divorce and other family law cases, I got several battered women clients who had lost custody to their abusers.

After investigation, it became apparent that the reason they lost custody was that the court-appointed child custody evaluators had recommended custody to the abusers, and the courts followed the recommendations. The forensic evaluators seemed to know little about domestic violence, and they paid virtually no attention to it when they conducted their evaluations. For example, some evaluators held joint meetings with the battered woman and her abuser, which further traumatized the woman. Many evaluators misdiagnosed battered women as having serious psychopathology, when the women were simply showing symptoms of the trauma they suffered at the hands of their abusers.

The evaluators often were critical of battered women who were reluctant to agree to joint custody or unsupervised visitation to the abusers. They labeled these mothers as 'unfriendly parents' and used that label to recommend custody or joint custody to the abuser. Just recently a forensic evaluator recommended joint custody when the abuser-father had a criminal conviction for abusing the mother. In what other situation would the law put a crime victim on the same level as the criminal and require her to have unnecessary contact with the criminal?

I wanted to understand how this could happen. The grant of custody or joint custody to an abuser is virtually never in the best interests of a child. After 3 years of studying forensic psychology, I think I know some of the reasons. Although child custody evaluators are valiantly trying to do the extremely difficult job of helping decide what custody arrangement would be in the best interests of the children, they are lacking some of the basic tools that they need.

What Is Needed

First, they need specific forensic training, which is virtually never included in their graduate programs (psychiatry, psychology, and social work). For example, the American Psychological Association (APA) has guidelines for forensic evaluators and for child custody evaluations, in addition to the ethics rules that govern the practice of all psychologists. A course devoted to these guidelines and rules would be a basic building block of solid forensics training.

Second, custody evaluators need specific training in domestic violence and other types of family violence, such as child abuse ' including child sexual abuse. The State of California, in response to problems in the system that became apparent after the OJ Simpson custody case, now requires that forensics have domestic violence training. Without such training, the evaluator is likely to accept the same myths and biases about domestic violence and battered women held by most lay people ' including myself, until I studied and practiced family law. Like most people, I was very na've.

Third, custody evaluators need specific training in the laws governing custody and visitation in New York, plus the rules of evidence and procedure that apply to expert witnesses generally. The APA rules for forensic evaluators make this one thing clear: Forensic evaluators must know the law. The role of an expert witness is to assist the court. Yet many custody evaluators are not conversant with New York custody law. New York law provides that domestic violence is the only factor the court is mandated by statute to consider when making a custody or visitation decision.

If the custody evaluator does not know the law and has no expertise in domestic violence, the evaluator cannot possibly assist the court in a domestic violence case. Unfortunately, we can expect that one-third to one-half of contested custody cases will involve domestic violence.

The role of a forensic evaluator is a different role than the role the mental health professional trained for in graduate school, which is the role of a clinician ' a therapist, trained to diagnose and treat patients. The APA rules view a forensic evaluator as an investigator with special expertise in areas of psychology relating to children and families. The Second Department, in Wissink v. Wissink , 749 N.Y.S.2d 550 (2d Dept. 2002), set forth guidelines for the kind of investigative work necessary for a comprehensive child custody evaluation: 'In a case such as this, where the record reveals years of domestic violence, which is denied by the child who witnessed it, and the child has expressed her preference to live with the abuser, the court should have ordered a comprehensive psychological evaluation. Such an evaluation would likely include a clinical evaluation, psychological testing, and review of records and information from collateral sources. The forensic evaluator would be concerned with such issues as the nature of the psychopathology of the abuser and of the victim; whether the child might be in danger of becoming a future victim, or a witness to the abuse of some other victim; the child's developmental needs given the fact that she has lived in the polluted environment of domestic violence all of her life and the remedial efforts that should be undertaken in regard to all parties concerned.' Such a role requires specialized training.

Sometimes domestic violence training and psychology training must be integrated. For example, I have taken courses in psychological testing, such as Minnesota Multiphasic Personality Inventory (MMPI) and Rorschach tests. However, those courses did not discuss the fact, for example, that such tests can result in misdiagnoses of battered women. Research shows that battered women given the MMPI-2 can look like they have borderline personality disorder, or even schizophrenia, when they really are suffering from posttraumatic stress disorder, which was caused by the abuse inflicted by the batterer.

Because our state's children deserve the best that we can give them, it can only be hoped that that the legislature and the courts will address the issue of training forensic evaluators receive, as well as other issues regarding their role in the custody process. Without these reforms, children will continue to be placed unnecessarily in custody situations that are not in their best interests.

Nancy S. Erickson, J.D., LL.M, expects to earn her Master's in Forensic Psychology expected in May, 2005, fron the John Jay College of Criminal Justice.