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Custody Evaluation in Domestic Violence Cases

Dr. Bethany Backes, Social Science Analyst, National Institute of Justice; Dr. Daniel Saunders, Professor, University of Michigan’s School of Social Work; Dr. Chris O’Sullivan, Research Consultant, New York Legal Assistance Group; The Honorable Dale Koch, Senior Judge, State of Oregon

Panelists will examine practices, beliefs and recommendations of professional and custody evaluators in domestic violence cases. Panelists will discuss current NIJ studies that use both qualitative and quantitative methods to assess the impact of personal attitudes and beliefs on custody evaluation.

Bethany Backes: So I’m gonna be very brief and just say that today we’ll be hearing about two ongoing NIJ-funded studies on custody evaluation. Both studies will be concluding within the year, and the final reports will be available and accessible through the National Criminal Justice Reference Service.

So our panelists today are Dr. Daniel Saunders, a professor at the University of Michigan’s School of Social Work; Dr. Chris O’Sullivan, who is a research consultant currently working with the New York Legal Assistance Group; and the honorable Dale Koche, Koch, sorry, a senior judge with the state of Oregon. And we hope that today is the start of many discussions on this topic. And at this time I just want to ask everyone to please turn off their cell phones or any electronic devices to vibrate or silent. And we’re gonna begin with Dan.

Daniel Saunders: Good morning, everyone. Hope you’re doing well. It’s good to be here with you. Thank you, Bethany, thank you for putting this panel together and for your introduction. And I wanna commend NIJ for making this move into a new area — the family law side of the law.

In the early days, the focus in helping survivors of domestic violence was to make sure that offenders were arrested just like any other offender and that there were restraining order laws and that we had good stalking legislation. And it’s been only fairly recently that advocates and researchers have become aware of the horrible injustice when survivors finally escape from domestic violence and then are faced with continued stalking, harassment, abuse and then, low and behold, the worst trauma that survivors, I think, can ever go through is to get that piece of paper in the mail that says your partner, your ex-partner wants custody of your children. And so the trauma is multiplied times three where women — it’s usually women — are faced with sometimes losing custody to a person, they believe, will continue their abuse — abuse of the children, abuse of them.

And so my interest was piqued many years ago doing divorce counseling, working with men who batter and then more recently with the supervised visitation program evaluation that I helped conduct of safe havens. And there we saw on average across agencies about 20 percent, 10 to 20 percent of the noncustodial parents were women ordered now to come and visit their children. So the, the awareness I think within Office on Violence Against Women and NIJ has really been heightened, so I really appreciate the focus that’s now being given.

So I’m gonna present some pilot data of a survey of custody evaluators and then a little bit, I’ll give a preview of some of the interviews that we’ve done with survivors.

First, I have to find the right button. Oh, OK.

So my collaborators at the University of Michigan are Rich Tolman, Karen Staller, Kathleen Faller, and then a whole team of research associates and assistants, and then consultants from, from law, from child custody evaluators, social scientists — about two pages worth of names that I could put up there for you.

You probably know this already that when women, and I’m talking primarily about women — men are battered as well, and you know, I have a whole presentation on gender equality and inequality regarding who are perpetrators and who are victims — I’m gonna speak mostly about women as survivors that when people leave an abusive relationship that’s not the end of the abuse, and in fact, there’s a tremendous amount of stalking that goes on; the risk of homicide increases, which is one reason why many women realistically stay in these relationships — they’ve been threatened with their lives.

And then we have many other consequences as well. These men are likely, half of them are likely to find a new partner to abuse; therefore, exposing the children again to more violence in that relationship. They’re likely to undermine the parenting of the non-abusive parent and on and on. I’m sure many of you are aware of, of these consequences.

For a long time, custody evaluators and judges talked about high-conflict relationships and didn’t realize that hidden within these high-conflict relationships, there is a great deal of domestic violence. And now we know from some very good, well-documented studies that 25 to 75 percent of contested custody cases involve domestic violence. And yet we still hear evaluators and judges talk about high conflict and don’t put the emphasis where, I think, it needs to be, which is on the violence that occurs within visitation and exchange cases based on some national surveys. The primary reason that families are referred for visitation and exchange is domestic violence followed very closely by child abuse.

There are a number of negative consequences. I mentioned losing custody to an abuser is an obvious one. We have other negative consequences as well — having unsafe supervision, supervision by a friend or relative when what’s really needed is supervision in a safe environment, a supervised visitation program with close supervision by a paraprofessional or a professional with separate entrances, separate parking lots, you know, all the safety mechanisms. And then we also see where too often, I think, there are referrals for couples counseling for mediation, which can undermine victims’ rights or place them in more danger. In terms of what we know about negative outcomes and the risk factors, it’s a very sad situation that too often the abuse is never even detected by evaluators, by mediators. And then even if it is detected, it is not considered seriously in the determinations, so it may sit there in the record but not be used adequately.

We know that if judges are well trained, there’s a tendency for them to give sole custody to abused mothers. We have a bind in about half the states now: We have what’s called a friendly-parent statute, which means that, you know, one of the factors for determining custody is that the parent must show that they’re willing to facilitate a good relationship with the other parent. But that puts victims in a real bind because they, for good reason, are reluctant to co-parent, to go into mediation, and as a result, they’re labeled as uncooperative, unfriendly, and that goes against them. And that’s a powerful effect, even in cases where there’s a presumption that custody should not go to the abuser. So we’re starting to uncover some of these risk factors for the negative outcomes.

OK, what is this big figure here? This is our conceptual framework that we started with on this project, it lays out the major research questions and hypotheses. So starting in the middle with my red laser pointer that I don’t have, but it’s the one that’s, it’s easy to see because it’s that big bold one, kind of in the middle, off to the right. So the main variable that we’re interested in, “To what extent do evaluators believe that survivors are making up stories, that they’re making false allegations of domestic violence?” And then if you go just up from there, we’re trying to see, ”Is that related to other beliefs that child abuse allegations are made up, that parents are alienating the children from the other parent and other kinds of beliefs? And then backing up, we’re interested to look at the background, the training of evaluators. Does that feed into the belief that survivors are making up stories about abuse? Gender, whether they themselves know survivors of domestic violence. I’m over in the background traits, the lower left here.

And then certainly, we want to look at myths about domestic violence, whether those myths are held by evaluators and if those are related to a belief that stories are being made up. And then what we call these “core beliefs,” these distal factors, which are more abstract beliefs — beliefs that social hierarchies are a good thing, social hierarchies between groups, a social dominance orientation that patriarchal norms will be related to myths about domestic violence. The belief in the “just world,” which is when someone thinks, basically, the world is a just place. People get what they deserve, and deserve what they get. And we don’t have to worry about oppression and differences in power. So we have, we have some of those abstract beliefs put in there, which can still be used in training to help people become aware of their values, their core beliefs and allow them to think and perhaps shift some of their more surface beliefs as a result. So all of this is designed to try to figure out what can we do better for training evaluators, in particular, but also other professionals?

OK, so those are the background kinds of variables that we’re looking at — beliefs, training, gender — and then of course the outcome; these, these negative outcomes that I mentioned already: that joint custody would be given or sole custody to an abuser, that mediation would be pushed, that there’s unsupervised or poor supervision, unsafe supervision.

OK, so this kinda lays out the hypotheses then; you can see many variables, many kinds of possible relationships. And I’ve put for you, in the handouts, these hypotheses in sentences. If you prefer not looking at maps, but, I mean people have a preference, right? When you’re getting directions, do you want to look at a map or do you want to get the directions written out for you? So here are the directions written out for you, the hypotheses, and you know there’s gender differences there, right? So who is it that likes maps and who likes written directions, you know, I think. In the discussion section, if you wanna know the answer, I’ll tell you then. OK, so I’ve laid out the hypotheses here. And I won’t take more time; I want to jump into methods.

What we have done so far is to complete two pilot surveys with a total of 62 evaluators. We used Web-based and mail-based administration. And we were able then to hone down and refine our measures, to improve on them because we also asked them at the end, “What do you think of this survey? Was it any good? What are your reactions? How could it be improved? What questions couldn’t you understand?” But we learned a lot. You know, evaluators don’t like responding to a little case vignette that we had. They said it would be unethical for me to put down a reaction because I would have to do the entire evaluation; you know, I cannot respond to your vignette. So we changed that. We said what hypotheses would you have, not what recommendations would you make? So we learned a lot through these pilots. And we’re about to launch the major survey.

We have measures of history of practice, practice experience with domestic cases, training, the, the scope of training, but also the modality — do you go to workshops or do you read articles? So. And then we have this vignette, which is at the end of your handouts, was modified from a journal article by Claire Dalton. And then we created various responses for them. You know, what’s the likelihood that you think the mother or the father are minimizing, are minimizing the abuse or exaggerating the abuse? What’s likelihood of future harm by either of the mother or the father? And then we have measures of these distal factors. We borrowed and stole items on beliefs about custody visitation and domestic violence from other sources, and then we created many of our own. And through this pilot, we found some very reliable subscales around these different themes.

So, the belief that there are false allegations of domestic violence that are extensive, that domestic violence has a severe impact on the children — that was another subscale — the friendly-parents standard that I mentioned, and then a number of myths, myths that for example, domestic violence ends at the separation, that abusers don’t undermine the other parent’s ability to parent, those kinds of things. So, I mean, the questionnaire, the first one we did was very long — I think 13 pages, 125 questions. And now we’re down to 80 questions. It’s much shorter, it takes about 25 minutes, 20, 25 minutes to complete. And we’re trying to hone it down even further.

So we’re gonna have a wealth of information here when we’re all, when we’re all done with this. So from the pilot survey, or two surveys combined together 60, 62 people. Most of them were in private practice; some worked directly with course. And we need to balance our sample more and, and go out to court settings, where there’s a lot of good training in many of those settings where family court personnel are doing a lot of the evaluations. This tended to be a group that had lots of experience, about half of them 20 years or more. There’s 60 percent men, an older sample. Many of them were Ph.D.s in psychology. And 20 percent had master’s degrees.

We also asked about their own, their own personal acquaintances regarding who, who they knew as a survivor. And so we asked about friends, coworkers, and here you see that about 20 percent of them said that their mother was a victim and survivor, and we’re gonna use that to figure out does that make them more sensitive or less sensitive in responding because previous research shows it can go either way, you know, with child welfare workers and, and other workers it can, it can go both ways, both ways. Forty percent had a friend who was a victim.

OK, here are some results then. Major question was “In your opinion, what percentage of mothers in child custody disputes make false allegations?” And then we asked the same thing about fathers. And this is in general then; this wasn’t first asking, “Of those who make allegations of domestic violence, what percentage are false?” So we’re gonna refine that a bit ’cause this is capturing the whole group — overall, what percentage of mothers do you think make false allegations of domestic violence? So the top one here is the mothers — and this is simply the distribution — so to interpret this, you see on the right-hand side, there were a couple people who thought that 50 percent and 60 percent of the mothers were making false allegations of domestic violence — quite a large grouping around, you know, the belief that 10 percent of them were making false allegations, 5 percent and so forth.

So that’s just a, a distribution across how many people the number of respondents who believe that 0 percent, 10 percent, 30, 50, 60 percent, etc., were making false allegations. OK? And then at the bottom, the question is how many of you believe that, you know, what is your belief about the percentage of fathers who are making false allegations? And there you don’t see it skewed as far on the right, and it’s clumping more around the 0 and 5 percent area. So it looks like in terms of gender of the parent, we’re seeing some effects here. And like I said, we have to refine this further, so we’re tightening all this down to domestic violence cases. But we may have what people have said all along in critiquing some of the theories about parent alienation, for example, that it, in the past it’s been gender, that it’s been more blaming the mothers and having less creditability in their stories. OK? So that might be coming through here. Very interesting.

Okay, then we did find, as we thought, that a belief that there’s false allegations about domestic violence also relates to belief that the stories about child abuse, sexual, physical abuse are being made up in fathers and mothers alike. When it came to child sexual abuse beliefs, those were tied together very closely. If, if an evaluator believed that mom was making up stories about child sexual abuse, they also tended to believe that a father would do the same. OK, and then what are the other relationships here? These beliefs about false allegations?

Well we found — I’m not putting any of the statistics in here; this is all just straight out statements for you — these were bi-variant correlations, so these were significant R-values coming through. Some were quite high, but they were all significant. So the belief in false allegations related to the belief in friendly-parents standard that the mother in the vignette would be likely to harm the son psychologically, that she was exaggerating the violence, that the father was not likely to harm the son psychologically. And when it came to outcomes their, their tendencies in the response to this vignette — what’s the likelihood that you would recommend various actions — the belief in false allegations of DV was related positively to their tendency to recommend joint legal and physical custody, sole physical custody to dad, mediation, couples counseling, no supervision of visits with the child — so unsupervised visits. So some of the concerns that we’ve had in starting the study are coming through. And then there was a negative relationship between false allegations, the belief in false allegations and the tendency to recommend sole physical custody to the mom and supervised visits. So as you’d expect, just the flip of the others.

One of the questions we asked, “How do you ask about domestic violence? Do you directly inquire about domestic violence?” Most of them did. And then we said, “What measures do you use to screen for domestic violence?” and then “What percentage of the time do you screen?” And what this graph shows is that almost 40 percent of them said they never do any formal screening; they don’t have any measure, any protocol that they use. And then a whole other group on the other end use such an instrument all of the time. So we’ve got quite a split here, and we’ll do a lot of other analysis to look at the differences here and how these line up.

So in the follow up question, one person said, “I use a clinicalized version of the conflict-tactics scale measured, about one month apart.” Some used the domestic violence inventory, the SARA — the Spouse Assault Risk Assessment. Quite a few of them used traditional psychological measures — the MMPI, the Rorschach. And one person said, “I find I never have to directly inquire about these problems. If they are present, the abused party always mentions them.” And that is why I think we need to be quite concerned. I mean, we found in many different settings — if you look at hospital settings, mental health settings — there’s a tremendous under detection of violence. And I think evaluators, with their good intentions to come in with a neutral view, don’t want to rock the boat, or they don’t wanna raise issues that aren’t there.

I’m not sure what’s happening here.

And there are some models of conducting evaluations that say, let’s base it on the allegations that come to us; let’s not base it on what we try to uncover. We’re only going to deal with what comes to us from the parties involved. So I hope that as we work on this research that we’re able to have some impact on that.

Regarding background factors, the sample sizes aren’t real large to detect differences here. We did find some gender differences that men are slightly more likely than women to believe that mothers make false allegations, that they’re gonna harm the son in the, in the vignette.

Oh, is this for me? Oh, OK.

That they … OK, we’re gonna wait for the larger sample to analyze knowing a victim personally as it relates to all these beliefs and then, very importantly of course, is how they acquire knowledge. Have they gone to workshops in the past? Have they read articles? Have they learned about post-separation violence, about the impact of violence on the children? We have all of those items in there that we’ll be analyzing.

In relation to core beliefs, as we hypothesized, two out of these three core beliefs were related to belief in false allegations, patriarchal norms, belief in just world. And then patriarchal beliefs also were directly related to some of the outcome measures — referring the mother but not the father for parent education, for example, psychological evaluation for the mom is needed. And then we’ve conducted 11 out of 24 interviews with survivors in four communities, four different states. So we’re gonna have state laws also that differ. California is one where they have a lot of training provided for judges, evaluators, standards that they have. And so we’re interviewing women who have lost custody or children ordered to unsafe supervision. We’re also gonna analyze documents that these women have from their evaluations — the judge’s orders, the court, the custody evaluation, other orders. In some, I mean, one woman had nine different documents, three different evaluators, a domestic violence assessment etc., etc., etc. So there’s a lot of work we’re gonna need to do there.

In terms of themes coming through, I’m not gonna take time to read from this one, but the focus that this survivor said needed to be on the emotional, on the psychological pain, as well as the physical. It’s not, it’s not enough just to focus on the scratches and the obvious injuries but also on the emotional pain that occurs. And then we’ve heard this before, this survivor points this out, but we’ve heard it also, that evaluators often focus on what happened during the relationship and forget to ask about what’s going on now, during the separation period. And this person brings it through that domestic violence, whether it’s past or present, needs to be considered.

We’re gonna … In these four communities, we’re gonna conduct a community analysis, interviewing key players, finding out from them a snap shot of what seems to work well and what doesn’t work well in their communities.

So then, in wrapping up, we certainly have limitations to these pilots as based on self report, and we are gonna supplement that with document reviews. We’ll have a total sample of 445, and we’re gonna expand beyond private practitioners. We have a lot of Web searches that we’ve done. And we’re also gonna approach family court to be able to also survey people that work in family court settings — I think that’s very important. And we’ve got a number of communities that we’ll be going to for that. So to summarize the, the survey results, it was surprising in this very small pilot how many of the hypotheses were affirmed that false allegations of DV were related to the friendly-parent standard, that, that’s related to the belief that mothers are likely to harm the son psychologically, the tendency for joint custody, sole physical custody, relationship with these distal factors —these very abstract ones — patriarchal beliefs, belief in a just world.

So overall, background and core beliefs seem to be related to the belief about false allegations, which in turn are related to a tendency to order joint custody or father sole custody. So we have a number of hypotheses that are affirmed, and with the larger sample, we’ll be able to do a lot more. In terms of which set of predictors, overall, are gonna be the most powerful, we can weigh them with each other, we can put them together additively to figure out, you know, is it patriarchal norms and gender together that is going to be the most powerful predictor? So we can look at all of these effects, direct, direct effects, indirect effects, etc., and have a lot more to tell.

So stay tuned. Bethany says maybe next year we can do a poster. But certainly e-mail me; I have my e-mail address if you want more information. And then stay tuned for the final report, which will be up on the Criminal Justice Reference Service Web site when we’re all done. So thank you very much for your attention. And we don’t have time for questions now, we’re gonna…

Backes: At the end.

Saunders: We’re gonna take questions at the end. So thank you very much.


Chris O’Sullivan: I’m at a terrible disadvantage behind these podium, which were designed by men, I think, very tall men — sort of disappear back here.

The study that we’re doing is pretty complementary to what Dan is doing. We’ve got a very eclectic group here. Michael is a parent coordinator, clinical psychologist, and divorce researcher in, in Boston with very little domestic violence background, which he’s getting very quickly. Marjorie Fields is a, is a former family court and Supreme Court judge who left the bench because she wanted to become a lawyer in private practice advocating for families in which there was domestic violence in custody cases. And Kim Selcerhas been our savior; she’s the one who sort of instigated this study by saying we’re having a real problem with our, our cases in family court and with the evaluators. So that was sort of the basis for starting this. April is an custody evaluator in New York City who’s a consultant on the project. And then we have people from various agencies in New York City who have cases in family court who … these are mostly, they do, they represent victims of domestic violence, primarily women, in contested custody cases and only indigent clients, so they’re, they’re free legal services.

OK, this is, this is a, this is a really difficult area. I don’t know how judges stand it. I hope to hear from Judge Koch. How is a judge to know what’s going on in a family and how can you tell from what, what, how they present themselves in court who is a good parent? So it’s really an impossible task to begin with, and then you add to it a domestic violence allegation, and how do you, how do you know if that’s really going on? So they rely a lot on custody evaluators. And then what do the custody evaluators do is really the — oops — the question for this study.

And we’ve got two different contexts for these cases. The legal context puts the best interests of the child first, parental rights second, and then they have to factor in the impact. In New York State, it’s a factor, in some cases a presumption that a parent should not get custody if they’re perpetrating domestic violence. And then there’s the social clinical context of, you know, what happens to the child in these situations if the parents are fighting just to begin with. If there is domestic violence the custodial parent has to be safe in order to provide a good home for the child, and domestic violence has an impact on parenting as well.

So, we’ve got these two dynamics going on. The custody battles set up one kind of dynamics. In divorce there’s a lot of conflict. It’s a time when evaluators and judges might suspect that, that one party will make false allegations of domestic violence. There may be violence that is just due to the heightened emotions around the time of separation and fighting over custody. And then there’s the issue of whether one parent is trying to turn the children against the other parent.

And then we’ve got the dynamics of intimate partner violence, which may make the, the same actions look very different or the same scenario look very different. Maybe there’s a violence at the time of separation not because it’s, of heightened emotion, because, but because abusers escalate their violence when they feel they’re losing control, so the same behavior can look very different.

One of the things we looked at was evaluator’s perception of causes of domestic violence and whether that influences how they interpret the situation and what the risks are. And then drug and alcohol abuse is another factor that can influence the dangerousness of the situation, how the evaluator of the core perceives each parent. So, we have a huge list of research questions. We also have a huge data set. These are the questions we’re looking at, I’ll try to go through this fairly quickly. These are all the factors that might be considered, what evaluators look at: the impact on the child, domestic violence history, parenting, who they interviewed. Did they interview just the family? Or did they go outside to interview neighbors, teachers, family members on each side? How do they interview the parents and children? Together, separately? Did they interview the kids as a group? What did they ask them? What did they ask the kids? How did they go about it? Did they do it with children? Are they doing stories and pictures or are they just asking them outright, “Does your mother beat your father? Does your father beat your mother?” And do they use psychological tests?” I’m not going to go over that because our findings are very similar to Dan’s. They use the MMPI and the Rorschach; they don’t really rely on it very much. 

What way do they get to the different sources? There’s enormous records, criminal court records, family court records. Are they looking at it? Do they think it’s informative? Did they recommend a parenting plan? In New York they’re not supposed to, at least in the city. The judges are supposed to be making the decision; they’re just supposed to do a clinical portrait of the family. In fact, they do. If they’re instructed by the judge not to present a parenting plan, they’ll just make their conclusion so obvious with the way it should go. So this is not worked as a solution to putting it back on the judge. And they all recommend treatment. They are clinicians.

We’re looking at some of these same factors. Are they knowledgeable about domestic violence? Does their basic theoretical orientation influence the way they go about evaluating? What do they think about parental alienation? What do they think about the importance of maintaining a relationship with each parent no matter how lousy they are?

Oops, I skipped one.

So our method was we got 70 cases through these legal assistance agencies in which domestic violencewas alleged and there was a forensic evaluation. We got enormous case files, and we had staff of — we’re not allowed to see them as researchers, but we got staff of these agencies to go through these huge files and create a database with all of the factors in the case. So there might be divorce proceedings, what happened? There might be 10 family offense petitions in family court or Supreme Court. In New York, State  Supreme Court is divorce court basically. We have this big data set; 300 variables on each case. Then we got the redacted evaluation reports, which range from shortest is probably 20 pages, and they go up to 50 pages. So we have these huge stacks, and for each case, we got the evaluation report, we got the order pointing sort of a reverse order, the judge’s order pointing the forensic, because they might want them to look for certain factors. Investigate whether there is domestic violence, investigate whether there is parental alienation, interview multiple people, get all the records, or it might just say interview the parties, and keep it very simple. So we can’t judge the evaluator on what they did without looking at the order. And then we got a copy of the final order. And in addition, we’re interviewing some evaluators from these 70 cases and giving them a brief survey. We’re also looking at their CVs to look at their background and training.

With the interviews, we’re going to try to match it up to whether what they say they do looks like what they do. We have preliminary findings also; we have the kind of data, but, we’re beginning the analysis. The attorneys — this is a cognitive salience issue — the attorneys thought they had these cases happen all of the time, where there is a forensic evaluator and a domestic violence allegation. In fact, it’s quite a small percentage of their cases. We also found that this sample we got from these legal service agencies are a little bit bias to the positive because they tend to get the evaluator they want. So these horror cases that they have are the minority of our examples. There’s a little bit of a distortion. And basically what we know from the interviews and, the evaluators, there’s no standard. They all think they’re different. They don’t know what anybody else does. They all perceive their job differently. Although most of them, I think there’s just one exception, they think their job is to figure out if the allegations are true, and that’s really what they think they’re doing. One said, “I’m really a detective.” So they’re amassing the evidence through interviews, through record reviews, and then they really want to tell the judge what the custody and visitation order should look like. Basically we found that, just a preliminary review, that they all think they’re different, I do it differently from everybody else even if they do it the same. No matter what their beliefs are, they are all pretty conscientious when they get in there. They tend to end up looking pretty much alike. There was one man that said, “There was a domestic violence expert. I hate them. They make such a big deal out of this, a little slap what does it matter? That’s not domestic violence. Psychological abuse, not a big deal.” Yet when you look at his evaluations, he is pretty thorough and just as likely as one who says, “Oh, there is so much domestic violence, and I believe most of the allegations.”

They’re equally likely to find domestic violence, or not, in the cases that we look at that they did. So that’s a little bit reassuring. The biggest difference we’ve found so far is that some of them take a very clinical approach; they don’t look at any records. They just do interviews. They just do their clinical interviews and Rorschach test and protective tests, and they really think they can get at the truth that way, and they don’t need to look at any records; whereas, others just spend enormous amounts of hours going through every petition trying to look for an overall fact pattern, which is not a clinical psychologist’s job. So that’s the biggest difference.

I have a handout — probably not enough — with the statistics, and I want to just talk about a case to illustrate all of the issues. This case was very typical in a lot of ways, but it was atypical in the fact that there were three different custody evaluators on it. It just sort of shifted around, and they came up with different conclusions, so I wanted to show how their approach led them to different conclusions about what was going on in the family. Custody kept shifting back and forth depending on which evaluator held sway over the judge at that moment and that’s sort of a mystery too. Here’s the mother, this is kind of typical in a way — the part about her husband trying to kill the district attorney in a prior case is not typical, but this education class disparity between the father and mother is quite common. She had a learning disability, dropped out of school, got married and had a child. Her husband ended up in prison. She went to prison briefly as an accomplice and was on probation for five years. She met the father in this case, and he helped her win a custody battle with the father of her son who was in prison. And they had two children together. They never married. And then she began to say he was abusive and controlling. And he was quite educated, quite self aggrandizing, claimed all these heavy connections, like he worked in the Manhattan D.A.’s office, or he’d done this or done that. He had claimed he knew all the jazz greats because he had been a jazz musician. He described himself as a health nut, and it was quite extreme. He boiled water for five minutes before he drank any or cooked in it. But he also saw himself as helping this woman. He was going to get her through high school, get her through college, so that was part of his controlling, perfectionist personality. He was arrested for physical assault on the mother twice. The first time it was what we call “ACD” in New York. It’s basically if he follows these conditions from the court, the case will be dismissed. He was told to go to an anger management program, and if he went to the anger management program, the case would be dismissed.

But he never went; nobody followed up and the case was dismissed. But the mother got an order of protection, and she eventually signed an agreement with him saying that she wanted to reconcile, and she wouldn’t press charges against him. So they were back together, and then he was arrested for another assault; he pled guilty, and there don’t seem to be any penalties associated with that guilty plea except that she got another one-year order of protection. The family split up. He had to move out. She kept the apartment; she got a new boyfriend. He moved to the suburbs, got a house. She had custody; father had them on weekends; they had to go to a precinct to exchange the kids. The father took the kids to a therapist. He also, after this second arrest, he took them to a hospital to the emergency room, on the grounds that the mother was abusing them when she had them; she strangled the older son. She was beating the younger two girls. So he went to court. The mother went to court. Her attorney left because he didn’t think anything was going to happen that day, so she was unrepresented. He testified that he had hospital records showing that she was abusing the kids, in fact, the kids were seen by a doctor and a social worker, and they said nothing happened to these children. But he went up there and claimed it so the judge yanked the kids and put them with the father. The mother still had unsupervised visitation on weekends. This is sort of a mystery. So that was in November. December, ACS is the child protective services agency in New York City, and the Society for the Prevention of Cruelty to Children did investigations; they found no child abuse. They recommended returning the children to the mother. The guardian who represents the children in court recommended returning the kids to the mother. The father hired a forensic evaluator. The first therapist the father took the kids to I’m calling “Dr. A,” and the evaluator hired by the father I’m calling “Dr. B,” just to keep them in order.

He found child abuse and recommended the children remain with the father, so the judge said the kids are going to stay with the father. Then the mother hired a forensic evaluator, and she found no child abuse. Did lots of tests on the mother, found she was average intelligence, and found she was fine and recommended custody to go back to the mother. The judge ordered the kids to stay with the father, but increased her visitation. In March the court appointed an evaluator who produced a report in July. This evaluator did a really thorough review and found that the father had engineered this claim of abuse, said the kids had to go right back to the mother. They moved out to the suburbs. They had been at a different school. They had been with the father for nine months. She said the summer was a good time to put them back in their old school in the city with their mother. And she said the father had done all of these terrible things, but the kids were really attached to him, especially the son whose father was in prison. He had become very attached; he had a lot of issues and was very attached to this guy. So in the end, it took another year or two years. They finally settled with custody of the mother and the father with liberal visitation.

So, isn’t that scary? I put down a couple of reasons it’s scary, and if we had more time, I think there are about five reasons it’s scary, but these are my first two: How did all of these educated evaluators — three of them were clinical psychologists with Ph.D.s; one of them was a clinical social worker — how did they look at this family and come up with such different conclusions? And the other thing I thought was scary is, if the court really abused, the mother had strangled the son and was beating the girls, why is she having unsupervised visits all weekend? And then there are a few more. So how did it happen? These are the factors that I think influenced, and I’ll go through it with each one, these are the typical features. What’s typical about it is there are two stories and who to believe. Is the mother abused by the father and he’s alienating the kids against her or is she making this stuff up, and she’s really abusive and dangerous to the kids, and he’s the better parent? How do you know?

The therapist hired by the father saw all three kids together; they were 8, 6, and 4. So one of the criticisms of “Dr. D,” the court appointed evaluator, was that you don’t see the kids at these different developmental stages with different parents and different issues; you shouldn’t be treating them together. And this gave the kids the chance to provide this united front and talk about what the mother had done to them, and the father is paying the therapist, which is another issue. The evaluators we interviewed said they really believed the child protective services that they do, on the whole, good investigations. Yet that didn’t prevail in this case. They did pretty well, they interviewed the children, the mother, the neighbors, two of the neighbors were friends of the father and said, “You know he never abused her, but she did abuse the children.”

Five minutes? I thought you were going to tell me half way. Okay, rushing along.

The court-appointed evaluator did a really thorough investigation. By now the case file was this thick, looked at everything, looked at the documents. Dr. B, the evaluator hired by the father only interviewed the children. One of my conclusions, just to jump ahead a little bit, is relying on these clinical interviews can work very well. Some of these clinicians are amazing at teasing out the truth from the kids, and they’re very clever. They do things like they show photographs of the family that they got from the mother or the father; well this doesn’t look like what you are describing to me. But others are terrible. They just ask outright, and they get whatever the parent has told them, and they don’t seem to be suspicious when the kid is using language that isn’t really appropriate for their age, so obviously they’re rehearsed. So on the whole, I think it looks better if they really do the investigation even though the judges say they’re not supposed to. There are all of these documents available. Here is what they actually look at. The majority are not really looking at these records, which is a problem. How did they determine the truth, consistency, if they can do a good interview with the kids?

Timing can influence whether they think it’s false. “I can’t do this” — what they look for to see if it’s dangerous. Parental alienation is so controversial, and I came into this with my own set of, “We don’t use that language, this is a myth —” There’s no way around it. It’s going on in these cases all the time. Some of the kids are coached to say things like these three children, “Mom strangled me.” In the end, when the final evaluator did the interviews, the kids said different things each time — she saw them three or four times — each time the story was different. “Mom lies, dad lies. He hits us, she hits us.” So it went back and forth, and it really was clear there wasn’t much going on there.

They were very confident in their conclusions. This is a little disturbing because they really can be wrong. And there’s a much more egregious case, where the judge followed the evaluator, and the evaluator was clearly wrong.

OK, the evaluator is the key person. I saw it a few times when the evaluator says, “There’s no domestic violence here.” And the judge says, “There’s a medical record; I’m giving custody to the mother. I’m going to put protections in place.”

The evaluators complain that the judges don’t read their reports. They really need to read them but read them skeptically and look at the methodology. OK, I’ve already said all this — sorry, three minutes. I’m good; I’m on my last few slides. I think the judges should specify the scope of the evaluation and not limit it to just do interviews, a single interview especially, but sometimes multiple is just not enough.

Some of these evaluators know nothing about domestic violence. There was a case where a psychiatrist interviewed all three parties and said the mother’s allegations were bizarre — they were actually fairly typical. She asked the father. He said, “No, this never happened.” And she said, “Well, there it is.” So she gave custody to the father, and the mother had no visitation because she thought she was fabricating the fact that the father kept her captive and that the father looked at pornography and was sexually abusive to her. And she said, “This doesn’t happen” — the psychiatrist said. So read the reports and question those conclusions.

We still don’t know what’s best for kids. In this sample case I was talking about, the father had alienated the kids from the mother, gotten them to make these accusations, nobody knew what to do about that, because the kids really needed him. And they were very attached to him. So they sort of had no way to deal with that. They were going to go on spending a lot of time with him even though he was going to continue to try and turn the kids against the mother. And we don’t know what to do, so we need further research in these areas. And really, there should be more follow-up; everybody says. They need to be brought back to court, follow-up evaluations. Is it working? And what’s going on? What are the developments, and can we now see the picture better now that we’re like a year away, and is it safe for the kids?

I had quantitative data that I put into the handout, but I think Judge Koch is going to talk about that.


Dale Koch: My job is to try put a little judicial perspective on the research and maybe what questions it raises for judges and judicial education, so my thoughts are going to be a little bit random in terms of the research that is being done at this point, partly because both these projects still have some work to do before they can really reach all of their conclusions. What they’re doing at this point is raising questions for us and not necessarily providing all of the answers. One of the thoughts from Dr. O’Sullivan’s research project at this point. One of her first assumptions that’s contained in the project is that custody evaluations have a great influence on judicial decision-making. And, that’s really true, but it does depend, and it should depend, at least on the quality of the evaluator and the quality of the evaluation.

It also raises questions in my mind, andthe case example that was provided here raised some of these questions, about whether we should be looking to having dedicated family court benches. In other words, whether we need to have judges who are really trained on these issues and just hear domestic relations cases or at least that’s the primary part of the work that they do. Whether we should be looking at the model of “one judge, one family” model so that in this situation that Dr. O’Sullivan is talking about, whether these cases are always coming back in front of the same judicial officer or coming in front of different judicial officers. It raises questions by judicial education and the need for the education on domestic violence issues, on child development issues, on parental alienation issues, on child abuse issues. It also raises some questions in my mind about the appropriate roles and expectations of the evaluators and the decision makers. I think Dr. O’Sullivan’s comment about the fact that the expectations for the evaluator should be made very clear.

The concept that we are going to ask somebody that’s an expert — at least we’re assuming they’re an expert — to go out and do an evaluation and not come to us with a recommendation in regard to that evaluation, that somehow just because we got elected as a judge or appointed as a judge that we’re smarter than the person doing the evaluation doesn’t make a whole lot of sense to me. So I would agree with her initial assessment that we need to be providing better direction and then asking for recommendations rather than just partial evaluations. But, if we’re doing that, the evaluation has to be worth something to us and the other point raised — and I am probably going to touch on it a couple of times — is that unless the evaluator is looking at collateral sources of information, that’s probably not a very reliable evaluation for us.

I guess I would contrast this, what the judge’s role is in a family court context versus some other context we’re in. Judges in a family court context have a tendency to view their role more traditionally, in terms of being very passive. We receive the information that comes in front of us. We don’t do much ourselves in terms of getting information, whereas in the context of a civil protection order for instance, particularly in the process of issuing a civil protection order, judges at this point are much more active. They’re looking at other court files that are in their court room. They’re looking at, in our case an OJIN printout, which tells us all the different filings that have been made in that file. We don’t do that in the family court context. We perceive ourselves as being back in this more traditional role so it’s an interesting dichotomy, and we rely upon others then to provide us that information, including the attorneys and the evaluators. And that I found interesting.

Going to the research done by Dr. O’Sullivan, in terms of what the evaluators were doing, in the cases that she was looking at and in only about 1 out of 2 cases, only about half were they looking if there’d been a CPS investigation, were they even looking at the CPS investigation. In only 1 out of 3 cases, if there’s a police complaint, were they looking at the police reports and that underlying information.

Now it’s not that because a police complaint was made that it’s necessarily true. It is an allegation at that point, but it is something that should be raising questions that need to be followed up on and looked at further. And then in only 1 out of 6 cases were they looking at the mother’s medical records. When those records and these — and when I’m saying 1 out of 6, these are situations where the records were in the attorney’s file, so they’re available to look at. And in only 1 out of 6 cases were they actually looking at them. So I thought that that was very interesting in terms of what wasn’t happening, and as a result I think it obviously has a very negative impact on the quality of the evaluation that’s being done. Because how can the judge or how can anyone evaluate the context of what’s going on in the relationship without having the full information? The concept that I find troubling from a judge’s perspective is this concept that somebody can just by talking to somebody and looking them in the eye, figure out if they’re telling you the truth or not.

That’s what evaluators are oftentimes doing, and that’s what theoretically we’re doing up on the bench. I could not look somebody in the eye when they’re up on the stand and tell you if they’re telling me the truth or not. Last case I did Friday afternoon before I got on the plane this weekend, two people came in, no children and no allegations of violence. The issue in question, because there’s a temporary support, who’s going to pay the bills, is did mother, two months before have a shoe box in her closet that had $30,000 in cash in it? He said she did, and she said she didn’t.

Well, to tell you the truth, and I told them, “I don’t have a clue which one of you is telling me the truth, and I don’t have any way to figure that out. I know that you both lied to me about the income situation because it’s totally inconsistent with what’s on your tax returns, or you lied to the government, one or the other, but I can’t find that truth.” And in that situation I didn’t have to make that decision, there were other basis on which I could make my decision about what the support issue is going to be. But in the context if they were coming in making an allegation regarding domestic violence, just talking to them there, I wasn’t going to make that decision, but there may have been a lot of collateral information out there that would help me make that decision appropriately.

The role of the attorneys, where there are attorneys, just can’t be underestimated. The best case I ever had an attorney try in front of me, regarding a custody situation, where there’s an evaluation, was a situation where there were allegations among other things of domestic violence — among other things — in the relationship. And the two parties had agreed on somebody to do a custody evaluation through their attorneys. That evaluation was done, and the evaluation came back and recommended custody to the father. The mother wasn’t satisfied with that, and she decided to change attorneys — a very good choice for her at that point. And the rule that we have in our court is we will not order a second evaluation. If the parties have stipulated to an evaluation and we’ve signed the order proving that, we will not order a second evaluation. So that attorney did what the evaluator should have done in the first place. The attorney went and looked at all of the collateral sources that could have confirmed or proven not true the assumptions that the evaluator made when they reached the conclusions for the report.

For instance, and in relation to an instance of domestic violence, where the evaluator concluded, because there had been no complaint filed, that it wasn’t worth looking at, that it must not have been true. And therefore, that’s part of the pattern of the mother making up stuff. The attorney subpoenaed him to court, the police officer who took that report and the eye witness to the event. And those people came in and testified, and it was very clear that there was the significant event of domestic violence that occurred. If the evaluator had even taken a look at the police report, which they hadn’t chosen to do because there’d been no complaint filed, probably would have at least raised some questions in their minds. So, I think it’s extremely important that the attorneys don’t just accept the evaluator’s report either in terms of what comes in front of the court.

Now, just a couple of other points, and then we’ll open this up for questions. It’s kind of — the questions raised to me, first from Dr. Saunders’ study, project is could these same hypotheses be applied to evaluation of judges? In other words, if you’re assuming that evaluators have these predispositions and that their decision-making might be based upon gender, personal family history, training, is that true of judicial officers as well who are making those decisions? And the answer as our Supreme Court nominee indicated in some of her remarks is, “You know how I grew up probably does make a difference in terms of how I view life in general and the lens in which I view cases that come in front of me in a court room.”

Now, it’s probably a little more delicate to do that kind of examination of judicial decision-making than for evaluators, and partly that happens to us on a daily basis anyway because the decision-making the judges make is much more visible than other decision-making because it occurs in an open court room; it’s a reported proceeding, and everybody can come in there, and as you all know, judges have been criticized from both sides about how they view domestic violence issues. But yet it’s true that the lens that judges view cases through does affect that decision-making process. It has to. The decision-making that I do now is a lot different than what I was doing 15 years ago. My gender hasn’t changed, my background hasn’t changed, but my education’s changed significantly, particularly on domestic violence issues.

The other context in which we actually take a look at judicial decision-making, and I touched up on this earlier is what court room we’re sitting in. In other words what hat we’re wearing. It’s interesting in a judicial institute that we do for judges on domestic violence issues, we do an exercise where we give the judges three different scenarios. And in one scenario, they’re sitting as a judge in a dependency court in a child abuse court. One scenario, they’re sitting in child protection court. And the other, they’re sitting in a family court. And we ask them to make decisions. They’re given exactly the same scenario, but it’s interesting. Their decision-making is different because they’re viewing it from a little different context.

The other thing that I don’t think we can lose sight of here in this discussion, we’re talking about evaluators; we’re talking about cases with attorneys. The majority of the cases that come in front of us, there’s never an evaluation done. The majority of the cases that come in front of the courts, one or both of the parties are unrepresented. So, what we need to make sure we do with the research, I think, is it needs to go out beyond the events, evaluators and the researchers and the lawyers. It does definitely need to get to the bench because unfortunately judges are called upon to make these decisions all the time without proper evaluations.

So, I guess my question is where do we go from here? My question last night to Dan was, “OK, we’ve got this great research, so what?” But there are ways that this can use us, help us to make better evaluations to look at the role of attorneys in this process, to look at what weight we should give to evaluations, and to help us take a look at, properly take a look at the context of domestic violence in relation to the decision-making we’re making. So, thank you very much.


Date Created: August 8, 2019