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Custody Disputed

By Robert E. Emery, Randy K. Otto and William O'Donohue

Scientific American Mind, Oct. 2005, p. 65-67. (available to subscribers here)

The guidelines judges and psychologists use to decide child custody cases have little basis in science. The system must be rebuilt on better research.

Courts are overwhelmed with couples who are splitting up and disputing custody of their children. If parents cannot agree on their children's fates, a judge will decide who gets custody, and increasingly, psychologists are becoming involved as expert evaluators during legal wranglings. But do any of these professionals have proof that the bases for their life-determining decisions are empirically sound? It seems not, and it is the boys and girls who suffer.

Parents often think that judges possess some special wisdom that will allow them to determine a custody arrangement that is somehow better than what parents can devise themselves. They don't. Although the details vary, every state's law indicates that custody decisions are to be made according to the "best interests of the child." That rule of thumb sounds laudable, but it is so vague that the outcome of every case is unpredictable. The possibility of "winning" in court, paired with the emotional dynamics of divorce, encourages parents to enter into custody disputes, which only increases conflict between them — and conflict is a major cause of lasting psychological damage to children of separating spouses.

Furthermore, custody evaluators oftentimes administer to parents and children an array of tests to assess which custody arrangement might be best. Given the frequency, high cost and social importance of custody evaluations, we might expect to find a large body of research on the tests' scientific validity. Yet only a few studies have been completed; more are needed, but the few do show that the tests are deeply flawed. Our own thorough evaluation of tests that purport to pick the "best parent," the "best interests of the child" or the "best custody arrangement" reveals that they are wholly inadequate. No studies examining their effectiveness have ever been published in a peer-reviewed journal. Because there is simply no psychological science to support them, the tests should not be used. And other, more general psychological tests that evaluators sometimes employ, such as IQ tests, have little or no relevance to custody decision making and should be dropped as well.

Court tests that expert evaluators use to gauge the supposed best interests of a child should be abandoned.

Conflict, the Real Barometer

There is, however, one tremendously important conclusion about separation that has been proved by extensive, sophisticated, multidisciplinary research: the level of conflict between parents that children experience during separation, and the ongoing disagreements they may be exposed to thereafter, greatly influences the degree of psychological trouble the youngsters will have in the short and long term.

Research shows that most children are resilient despite a divorce, and it is quite possible for them to suffer no greater incidence of psychological maladjustment than kids whose conflicted parents remain married. Studies tell us that many of the problems observed among youths from divorced families are actually present before the separation. Parental fighting often precedes a separation or divorce, and various analyses demonstrate that children fare better psychologically if they live in a harmonious divorced family than in a conflict-ridden two-parent household.

The bottom line is that in any family situation, children do better if adult clashing is minimal or at least contained so children do not witness or become involved in it. The process of dissolution, and the nature of ongoing family relationships, is more important to a child's mental health than the structure of any particular arrangement, whether that be sole custody, joint physical custody, or liberal or limited visitation with the noncustodial parent. Researchers report that both boys and girls function equally well living primarily with either their mother or father. Other important factors in minimizing the trauma for offspring include having a good relationship with an authoritative resident parent (one who is loving but firm with discipline), economic security and a good relationship with an authoritative nonresident parent.

The coupling of the vague "best interests of the child" standard with the American adversarial justice system puts judges in the position of trying to perform an impossible task: making decisions that are best for children using a procedure that is not. We appreciate the terrible dilemma that the best-interests standard creates for judges, custody evaluators and, of course, parents and children. We also believe that a mental health professional may be in a better position to make sound recommendations about custody than a judge bound by rules of legal procedure. Nevertheless, we believe it is legally, morally and scientifically wrong to make custody evaluators de facto decision makers, which they often are because judges typically accept an evaluator's recommendation.

Parents should determine their children's lives after separation, just as when they are married.

Encourage Parents to Decide

Some straightforward policy changes would improve custody decisions. First, we urge judges, lawyers and other advisers to encourage parents to reach custody agreements on their own through divorce mediation, collaborative law, good-faith attorney negotiations or psychological counseling. Studies show that these efforts reduce conflict and encourage more cooperative, ongoing interactions between parents. Such arrangements facilitate positive relationships between children and their mothers and fathers. These practices also embrace the philosophy that, in the absence of abuse or neglect, parents should determine their own children's best interests after separation, just as they do when they are married or living together. Parents — not judges or mental health professionals — are the best experts on their own children.

One important reason to follow this approach from the outset is that parents ultimately must manage their own relationship and custody decisions. A cooperative approach, rather than adversarial litigation, will help achieve this outcome. Options include pro se divorce, in which parents manage legal matters without lawyers; divorce education, usually involving courtmandated classes on parenting; cooperative negotiations between parents and attorneys (including a new approach called collaborative law whereby lawyers agree not to go to court); family therapy; and the most firmly established of the options, divorce mediation, in which parents negotiate a settlement with the help of a neutral expert, usually a mental health professional or an attorney.

The second step for reducing conflict is for state legislatures to enact clearer guidelines for determining custody when parents cannot reach an agreement. A fair but less vague standard would reduce the number of contested cases that are brought to court in the first place. Too often one or both former partners seek litigation precisely because the best-interests approach encourages false hopes of "winning." Firmer rules would discourage litigation and reduce conflict between parents — the ultimate goal. We find particular merit in the proposed "approximation rule" — the suggestion that postdivorce arrangements should approximate parenting involvement in marriage. The most important advantage of this guideline is that parents and their attorneys would know what to expect of the courts, and this knowledge would promote earlier settlement.

No state has yet implemented the rule, so we have no evidence of its effectiveness; however, the American Law Institute, whose model statutes often become the basis for state laws, has endorsed the idea in its proposed reforms of divorce and custody law.

Finally, we recommend that custody evaluators offer only opinions that are clearly supported by psychological science. Until far stronger scientific support arises, this recommendation means that evaluators should abandon the use of all custody "tests" that purport to measure children's best interests directly or indirectly.

Our recommendation to limit expert testimony may seem radical, but we are simply urging the same rigor that is applied to expert testimony in all other legal proceedings. The American Psychological Association, the Association of Family and Conciliation Courts, and the American Academy of Child and Adolescent Psychiatry all have developed guidelines for professionals who conduct custody evaluations. Each group recommends an assessment of children's needs, parents' abilities to meet these needs, and parents' abilities to provide for future needs. Still, there is little agreement about how to assess these factors. We therefore urge professional organizations to develop clearer guidelines on which tests have a basis in science and to generate data on the appropriate inferences that can be drawn from responses children and parents provide in taking those tests.

(The Authors) Psychologists ROBERT E. EMERY, RANDY K. OTTO and WILLIAM O'DONOHUE collaborated on a white paper about custody disputes, to be released in late 2005 by Psychological Science in the Public Interest. Emery teaches at the University of Virginia, Otto at the University of South Florida and O'Donohue at the University of Nevada at Reno.

(Further Reading) The Truth about Children and Divorce: Dealing with the Emotions So You and Your Children Can Thrive. R. E. Emery. Viking Adult (Penguin), 2004.

Empirical and Ethical Problems with Custody Recommendations. Timothy M. Tippins and Jeffrey P. Wittmann in Family Court Review, Vol. 43, Issue 2, pages 193-222; April 2005.

A Critical Assessment of Child Custody Evaluations: Limited Science and a Flawed System. Robert E. Emery, Randy K. Otto and William O'Donohue in Psychological Science in the Public Interest, Vol. 6, No. 1; July 2005 (available in late 2005).


 
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