As a society we ask our legal system to clean up messes. Some of these messes involved children and change in family status. Judges look for “bright lines” to clarify their thinking about how to solve a particular difficult dilemma when the parties are fairly evenly balanced in terms of their custodial factors. Therefore the psychological literature can be surveyed for information about developmental qualities that might help the litigants, the struggling attorneys, and especially the children. The following memo was prepared “blind” as an independent set of information that could be utilized in a particular case. The names of all participants have been redacted.
MEMO ON FACTORS TO BE CONSIDERED IN CHILD CUSTODY SCHEDULES
2005
Ann Dell Duncan-Hively. Ph.D., J.D., D.A.B.P.S.
Licensed Psychologist, Missouri & New Hampshire
Registered Psychologist, Bermuda
This analysis was requested by Alpha, Attorney at Law, in conjunction with a litigation issue, Beta v. Beta. A hearing is scheduled for 2005. Three children were born to this marriage: Gamma (May 8, 1994), Delta (Sept. 3, 1996) and Epsilon (Dec. 8, 1997). No other information is known about this case and it has never been discussed with anyone. The request was simply to provide information from the psychological literature that might be of some assistance in tailoring a parenting and custody plan to the best needs of the children.
Appropriateness of Request
Under RSAMo. 490.065 “In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” There has been no discussion of testimony, rather a written brief was the format requested.
Step One
The standard used for decision making in Family Court in Missouri circles around the “best interest” of the children, the legislative assumptions about parity in parenting, the affirmation of preference for joint legal and physical custody and the unique characteristics of each family.
It has been suggested that another standard, “the least detrimental alternative” be considered using the concept of “psychological parent” (Goldstein, J., Freud, A. & Solnit, A. Beyond the best interest of the child, New York: Free Press, 1973).
Another alternative is the “approximation standard” where the Court attempts to maintain the children in the format they have experienced prior to divorce (Scott, E. Pluralism, paternal preference, and child custody. Calif. L. Rev., 1992, 80, 615-672).
For the purpose of this discussion the selected venue is the “best interest” standard. Michigan’s Child Custody Act (2001) serves as a model for the abstraction known as “best interest”, to wit: “the love, affection and other emotional ties existing between the parties involved and the child, the mental and physical health of the parties, the capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child involved in his or her religion or creed, if any, the presence of domestic violence regardless of whether the violence was directed against or witnessed by the child and the moral fitness of the parties involved plus any other factor considered by the court to be relevant to a particular child custody dispute.”(paraphrased)
Step Two
The framework for consideration of children’s factors that have an impact on custody include the following:
1. Age and sex of children
2. Relationship among the children
3. Adjustment to current environment
4. History of abuse/victimization
5. Educational needs
6. Medical needs
7. Wishes or desires regarding custody arrangements if age sufficient
8. Neighborhood factors including activities
9. Support system
10. Relationship with each parent (strengths and weaknesses)
11. Developmental stage for personality/emotional development
For the parents the list includes:
1. History of competent parenting
2. Present level of conflict in marital relationship
3. History of violence, rage, inappropriate parenting
4. History of spouse abuse
5. Economics
6. Stability of life patterns
7. Mental and physical health of each parent
8. Presence/absence of current or history of substance abuse
9. Flexibility
10. Parenting skills
11. Care taking involvement before and after separation
12. Support system
13. Complicating factors (presence of new relationship etc.)
14. Wishes or desires regarding custody arrangements
15. Length of marriage and history of mutual problem solving skills
16. Ability to benefit from parenting training and/or counseling
Step Three
Forensic assessments that only diagnose are ethically invalid because they fail to assess the caretaker’s child rearing abilities. There are often leaps of faith between the label and the conclusions drawn about parenting abilities. The MMPI-2 is the most common psychological test used in custody evaluations but there are no “parenting norms” for this test (Grisso, T. Evaluating Competencies 2nd Ed., New York: Plenum, 2003).
Diagnoses may be relevant, but the competency concept requires a “description of what the caretaker understands, believes, knows, does, and is capable of doing by way of parenting.” (Budd, K. Assessing parenting competence in child protection cases: A clinical practice model. Clin. Ch. & Fam. Psych. Rev, 2001, 4, 1-18). A custody evaluation should use multiple sources of information to describe the behaviors of parenting exhibited by both parents.
Parenting tasks are affected by the child’s needs and developmental status. Some of these tasks of socialization and advocacy/protecting include the following: (Galatzer-Levy, R. & Kraus, L. (Eds.) The scientific basis of child custody decisions. New York: Wiley, 1999)
· Providing nurturance and physical care
· Matching parenting abilities with developmental tasks such as toileting, boundaries, organization skills
· Skill training in language, support of educational stage, self care to insure safety and responsibility
· Transmitting cultural values and moral development
· Guiding child to formulate his own goals and activities
· Modeling self control and emotional modulation
One cannot infer parenting capacity from a single test or from a diagnosis. As the saying goes “one swallow does not a summer make” and one label does not determine skill at parenting.
The next step is to see what developmental needs the children might have and ascertain if there is a match between the parenting capacity and the children’s needs.
Step Four
The following factors are derived from the psychological literature and not from any direct contact with the Beta children.
Ages and Stages. The developmental needs of children are linked to their age but are not solely determined by their age (Duncan, A. Developmental issues in assessing allegations of abuse in young children. Workshop for Child and Family Services and Police, Hamilton, Bermuda, March 27, 2001). There are complex interactions between the mental skills and abilities of the children along with any history of illness or parental absence that might affect the smooth progression of the developmental stages.
Metacognition. The ages of the Beta children in question range from 11 to 7 years. Children of age 6 to 7 are just developing metacognition, the ability to be aware of oneself whereas the 11 year old is approaching adult skill in deliberate recall strategies and has a more firm view of himself as a separate person from the rest of the family.
Time Concepts. The two younger children do not have the concept of time firmly established so that anxiety can be generated by uncertain time frames and plans. The older child has relative time abstractions and can plan for future events usually without undue anxiety.
Abstraction Abilities. There is minimal ability to understand abstractions for the two younger children so that concepts have to be presented in concrete terms. However, these children often appear to understand more than they actually do because they have acquired sufficient language interaction that they nod or affirm in all the right places. The oldest child is forming moral abstractions and uses judgment unevenly.
Language Usage. Complex sentences that contain adverbs such as “when, before, after, while” are often misperceived by the two younger children and feelings can be easily hurt by the parental assumption that their words are matching the child’s reception (the hurt feelings go both ways).
The skill of each parent in communicating with the children would be critical to assay.
Step Five
In examining the match between the parenting capacity of each parent and the emotional development of the children, the following are developmentally linked emotional tasks derived from the psychological literature that are necessary for each of the children:
Age Seven (Epsilon)
1. Capacity for group membership
2. Interest in parent’s work away from home
3. At ease away from home for part of the day but not lengths of time.
4. Knows right from wrong in concrete terms
5. Industrious and interested in skill building
6. Clear preferences stated for activities, free time etc.
7. Can have adamant preference for same gender parent
8. Often feels distressed by parental conflict and may regress in the face of parental and sibling pressures
Typical signs of distress for this age child would include persistent fearfulness, phobias, overdependence, nonadaptive neatness, few friends, and urinary incontinence on occasion.
Age 8 to 9 (Delta)
1. Enjoys reading for pleasure
2. Special friends of the same sex (often in the neighborhood)
3. Belongs to a group
4. Knows the rules of games and enforces them
5. Can cooperate with family needs
6. Knows right from wrong
7. Takes sides if moral judgment is questioned
8. Shuns identification with opposite sex
9. More likely than not tells the truth or avoids rather than lies
10. Can have his feelings easily hurt by either parent with misunderstanding of commitments and broken promises
Typical signs of distress for this age child include pseudomaturity, language and speech problems, recurrent nightmares, tics, few or no friends, and emotional and physical withdrawal.
Age 11 (Gamma)
1. Identification with peer group, can be intensely expressed
2. One or two close friends that are highly valued
3. Can joke, be silly and enjoys double meanings of words
4. Events experienced more personally and intensely
5. Can be considered moody as he tries to compute the correct response when his loyalties are challenged
6. Often judgmental and takes the role of protector of a parent
7. Can become a parentified child if ingredients are ripe
8. Feels pride in competency and accomplishments (school, home and hobbies)
9. May develop anxious coping skills that appear unusual (acting in or acting out)
10. Can be encouraged to carry tales between parents and become a “player” in custody controversies
Typical signs of distress for this age child includes depression, school failure, no friends, avoidance of family and friends, excessive preoccupation with own body, persistent withdrawal and conforming behaviors.
In examining the specific needs of each of the children it is clear that there are large developmental gaps within the Beta children. It may be necessary to tailor a parenting plan that takes into consideration the above factors and provide for flexibility in the future.
Step Six
A review of the available literature suggests that divorce is a deathblow to normal child development, no matter how fortunate the economic or social circumstances (Wallerstein, J. & Kelly, K. Surviving the breakup: How children and parents cope with divorce. New York: Basic Books, 1980; Wallerstein, J. & Blakesless, S. What about the kids? Raising your children before, during and after divorce. New York: Hyperion Press, 2003; Solomon, J. & George, C. (Eds.) Attachment disorganization. New York: Guilford Press, 1999). The younger the child the more devastating the effects (Pruett, M. et al. Family and legal indicators of child adjustment to divorce among families with young children. J. Fam. Psychol., 2003, 17, 169-180; Whiteside, M. & Becker, B. Parental factors and the young child’s post divorce adjustment: A meta-analysis with implications for parenting arrangements. J. Fam. Psych. 2000, 14, 5-26.)
The research fairly uniformly supports the contention that high-conflict divorces produce the most damage to children regardless of other factors. In a survey of over 600 households the authors found that “children in high conflict families showed lower levels of well being on all outcomes.” (Vandewater, E. & Lansford, J. Influences of family structure and parental conflict on children’s well being. Fam. Rel. Interdisc. J. Appl. Fam. Stud., 1998, 47, 323-330.)
Not every family circumstance can be causally linked to the damage of children. The unique characteristics of each family and their history must be taken into consideration. Hetherington et al. propose a transactional model that looks at multiple trajectories of interacting risk and protective factors. These include (a) individual vulnerability and risk; (b) family composition; (c) stress (economics included); (d) parental distress; and (e) disrupted family process. (Hetherington, E., Bridges, M., Insabella, G. What matters? What does not? Five perspectives on the association between marital transitions and children’s adjustment. Amer. Psychol. 1998, Feb. 53, 167-184).
“Compared with children with continuously married parents, children with divorced parents continued to score significantly lower on measures of academic achievement, conduct, psychological adjustment, self-concept, and social relations.” (Amato, P. Children of divorce in the 1990’s: An update of the Amato and Keith (1991) meta-analysis. J. Fam. Psychol., 2001, 15, 355-370.)
The behaviors of the parents before the separation often is key to their abilities and successes after the divorce. If quality problem solving exists along with mutual respect, and avoidance of embroiling the children in conflict, the children survive better (Juby, H. et al. Sharing roles, sharing custody, Couple’s characteristics and children’s living arrangements at separation. J. Marr. & Fam. 2005, 67, 157-172).
Joint custody has been legislated and the research appears to support the contention that access to both parents mitigates somewhat the deleterious effects of divorce. Bauserman did a meta-analysis of 33 studies that examined joint versus sole custody. “Children do not need to be in joint physical custody to show better adjustment, they just need to spend substantial time with both parents.” (Bauserman, R. Child adjustment in joint-custody versus sole-custody arrangements: A meta-analysis review. J. Fam. Psych., 2002, 16, 91-102)
As with any solution where one size does not fit all, there are concerns about the parents’ abilities to conduct themselves in a meaningful and non-alienating manner. Some emerging research suggests that couples are often pre-selected by economics and length of marriage to embrace joint custody thereby making the research supporting joint custody less accurate (Lowenstein, L. Joint custody and shared parenting: Are courts listening? Fam. Ther. 2002, 29, 101-108; Turkat, I. Shared parenting dysfunction. Amer. J. Fam. Ther., 2002, 30, 385-393).