(973) 403-9200
By: Charles F. Vuotto, Jr., Editor-in-Chief
Mental health professionals are often asked to perform custody and/or parenting time evaluations in family law cases. Generally, those evaluations are conducted by psychologists; however psychiatrists and social workers may also perform them. Each of those mental health disciplines, psychiatrists, psychologists, and social workers, is governed by their own set of ethical guidelines and a separate state board of examiners. Those disciplines have ethical guidelines that address how custody and/or parenting time evaluations will be conducted. This column will raise the question of whether New Jersey should adopt one standard set of guidelines applicable to all mental health professionals who perform custody and/or parenting time evaluations.
A gap exists in New Jersey law about the parameters of child custody evaluations and related reports. Although various rules, statutes, and cases refer to guiding principles, factors, or guidelines to be followed by a child custody expert, missing from all of those pronouncements is a mandate about a one set of rules to be applied to all mental health professionals who perform child custody evaluations and reports.. For example, Rule5:3-3(b) entitled “Custody/Parenting Disputes” provides that, “[m]ental health experts who perform parenting/custody evaluations shall conduct strictly non-partisan evaluations to arrive at their view of the child’s best interests, regardless of who engages them. They should consider and include reference to criteria set forth in N.J.S.A. 9:2-4, as well as any other information or factors they believe pertinent to each case.” Unfortunately, that Rule does not provide the parties, courts, and professionals who conduct these evaluations with anything approaching a uniform guide on how to conduct a child custody evaluation. The American Academy of Matrimonial Lawyers (AAML) has issued Child Custody Evaluation Standards (2011). Those AAML Standards are aspirational in nature and do not have the force of law.
While there is no body of decisional law governing the practices of child custody evaluations, licensing regulations for psychologists and social workers provide mandatory standards for those mental health professionals who conduct child custody evaluations. The mandatory standards applicable to psychologists are included in the regulations promulgated by the State Board of Psychological Examiners (New Jersey Administrative Code, Title 13, Chapter 42, 2011), which accompanies their licensing law ( New Jersey Administrative Code, Title 13, Chapter 45, 2011). These regulations were preceded by guidelines that were in effect for about the last 18 years (New Jersey Specialty Guidelines, 1993) and were developed by a committee of psychologists and lawyers.
The mandatory standards for social workers are included in the regulations promulgated by the State Board of Social Workers ( New Jersey Administrative Code, Title 13, Chapter 44G, 2011), which accompanies their licensing law (New Jersey Administrative Code, Title 13, Chapter 45, 2011). Their regulations are consistent with psychologists’ regulations, modified to reflect disciplinary differences in education and training. The State Board of Medical Examiners (New Jersey Administrative Code, Title 13, Chapter 35) has standards for psychiatrists, which accompanies their licensing law (NJ Administrative Code, Title 13, Chapter 45), however psychiatrists do not have regulations regarding for child custody evaluations.
All three of these mental health professionals are guided by the professional associations to which they voluntarily belong. Their respective guidelines are aspirational, not mandatory, however. Psychologists have several guidelines that define best practices for custody evaluations. New Jersey psychologists who voluntarily belong to the American Psychological Association (APA) are also bound by the general Ethical Principles of Psychologists and Code of Conduct (APA, 2012). In addition, if they belong to the American Psychology-Law Society, which is Division 41 of the APA, they are guided by the Specialty Guidelines for Forensic Psychology (APA 2011) and the Guidelines for Child Custody Evaluations in Family Law Proceedings (APA 2010).
Social workers who belong to the National Association of Social Workers (NASW) are bound by their general Code of Ethics (2008). NASW has not published specialty standards for conducting child custody evaluations.
Psychiatrists who belong to the American Psychiatric Association (APA) are guided by their general Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (APA, 2010). Psychiatrists who belong to the American Academy of Psychiatry and the Law are guided by their Ethics Guidelines for the Practice of Forensic Psychiatry (2005) and those who below to the American Academy of Child and Adolescent Psychiatry (AACAP) are guided by several practice parameters specific to forensic cases: Child Custody Evaluation (AACAP, Volume 36 Oct. 1997 Supp.), Forensic Assessment (AACAP, Vol.50m? Dec. 2011,) and guidelines for Forensic Evaluation for Children and Adolescents Who May Have Been Sexually Abused (AACAP, Vol. 36 Oct. 1997 Supp.).
The Association of Family and Conciliation Courts (AFCC), a multidisciplinary organization that includes attorneys, psychologists, and social workers, has generated Model Standards of Practice for Child Custody Evaluation (2006). These Standards are consistent with the regulations of psychologists and social workers and the guidelines issued by their respective professional associations. Since the AFCC is a voluntary organization, its standards only apply to their members and lack the force of law. In addition, the AFCC lacks an enforcement mechanism for compliance with its standards. Those Standards are more accurately considered guidelines, which are aspirational, as opposed to true standards, which would be mandatory and enforceable for members of a professional association. Also, those Standards are controversial because they focus exclusively on science and failure to include explicit guidelines for the use of clinical methods and reasoning, which play an integral role in formulating expert opinions. l.
While all these regulations, standards, and guidelines are vaguely consistent with each other, they vary in specificity, comprehensiveness, and emphasis. Consequently, those variances create ambiguity for courts trying to decide whether evaluations done under their authority represent best practices and are legally reliable.
With New Jersey currently allowing different types of mental health professionals the ability to perform child custody evaluations and with each of those professionals being subject to different mandatory and aspirational guidelines for those child custody evaluations, our State needs consistency. More important, the children subject to those child custody evaluations need reliability when they are subject to the intrinsically intrusive nature of evaluations. It appears that the Child Custody Evaluation Standards promulgated by the American Academy of Matrimonial Lawyers (“AAML”)[i], mentioned above, offers the best opportunity for this sorely-needed uniformity.
The AAML Child Custody Evaluation Standards was the product of a multidisciplinary effort by attorneys and psychologists. The following is an excerpt from the Preamble to the Academy’s Child Custody Evaluation Standards booklet, which explains the genesis of the promulgation of these standards, and reveals why those Standards supply the uniformity our State needs:
During the 2006-2007 term, President Gaetano Ferro appointed Maria Cognetti chair of an interdisciplinary committee to develop standards for the courts, parties, counsel and mental health professionals for the preparation of uniform child custody evaluations. The committee was composed of experienced family lawyers, all Fellows of The American Academy of Matrimonial Lawyers from regions throughout the United States who have not only handled all types of custody disputes but also functioned as Guardians ad Litem. Two nationally recognized forensic psychologists, Arnold Shienvold, Ph.D. and Marc Ackerman, Ph.D., volunteered their time to provide valuable insight into the complexity of the conduct of these evaluations.
Every jurisdiction in the United States has established legal standards for the determination of child custody; few states have rules or laws which govern how child custody evaluations are conducted. In large urban areas where mental health professionals are plentiful, these evaluations are typically completed by licensed psychologists who have stated competencies in child development and custody evaluation. However, this committee recognizes the fact that in the rest of the country, where mental health professionals are scarce and economic resources limited, these evaluations may sometimes be conducted by professionals (which may include attorneys) without training in custody evaluations and court appointed lay persons functioning as Guardians ad Litem and under the mantel of various ADR methodologies. It is the intent of the committee that these Standards will aid professionals in understanding the necessary training, skill and experience required in conducting custody evaluations. It is also the intent of the committee that the court will utilize these Standards in their selection of custody evaluators.
Citizens are more likely to be touched by the family court system than any other area of law and no intrusion of the law is more intimate than the determination of who will have custody of a child. The ramifications extended well beyond the family to the entire community. The task of the child custody evaluator is unlike any other court expert. The consequences of these recommendations reverberate long after the legal case is over.
It was the conclusion of the committee that there is need for a coherent, uniform set of standards for the variety of professional who may be called upon by the court to conduct a custody evaluation. The standards set by this committee are not intended to supersede the ethical precepts of each profession; rather they are an adjunct, intended to provide the court with uniform means of assessing the quality of a custody evaluation submitted to the court. The committee gratefully acknowledges a major debt to the Association of Family and Conciliation Courts [hereinafter, AFCC] for its permission to utilize and rely upon major portions of its Model Standards of Practice for Child Custody Evaluation, 2006, and the Guidelines for Brief Focused Assessment, 2009. Many of the issues involved in drafting these Standards are virtually identical to those presented by the AFCC in its Model Standards. As a result, some of the provisions are taken verbatim or with slight adaption of the Model Standards. To reduce confusion, those provisions are presented here without quotation marks or citations. The committee also acknowledges the Specialty Guidelines for Forensic Psychology.
The criteria for expertise as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993) and Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923) were incorporated in these Standards. In addition, the committee reviewed and took into consideration the American Psychological Association [hereinafter, APA] Guidelines for Child Custody Evaluations in Divorce Proceedings, 2009, the APA Draft Guidelines for Evaluating Parental Responsibility, May 2007, and the APA Ethical Principles of Code of Conduct for Psychologists with 2010 Amendments.
Application of the knowledge and skills of mental health providers in the resolution of legal disputes is a forensic endeavor. These standards have been written in consideration of the importance of that skill set to the orderly and effective resolution of child custody disputes. In the case of custody evaluations, the purpose is to assist the court in application of the law to these important decisions. Lawyers, mental health professional and judges each have different and distinct roles in child custody disputes. The lawyer advocates for the client; the mental health professional investigates, evaluates and recommends under the canopy of the best interests standard. It is in domestic relations that law and psychology intersect.
The AAML Child Custody Evaluation Standards are intended to provide the parties, courts and professionals who conduct these evaluations a uniform guide to the properly performed child custody evaluation. These Standards may be applicable in any proceeding in which custody or access to a child is being determined.[ii]
The AAML Standards were drafted by attorneys with the key assistance of psychologists. That interplay created consistency with licensing laws and regulations as well as with the professional ethics for mental health experts. The need to have guidelines that were drafted primarily by attorneys rather than mental health professionals is clear for a variety of reasons. Notable is the need to coordinate mental health experts’ best practice parameters with legal requirements, such as the Daubert and Frye criteria in custody cases. The AAML Standards are intended to constitute a coherent, uniform set of standards to be applied to all of the different mental health professionals who may be called upon by a court to conduct child custody evaluations. While these Standards are not intended to supersede the licensing laws and regulations or the ethical precepts of each profession, they will provide courts with a uniform way of assessing the quality of child custody evaluations and their legal reliability regardless of the conflicting and varied standards now in place for each of the mental health professionals who presently conduct child custody evaluations.
The AAML Child Custody Evaluation Standards appear to represent a thoroughly investigated and researched, multidisciplinary set of criteria intended to provide a uniform guide to mental health professionals, attorneys, and courts when dealing with child custody evaluations. Those Standards highlight the need for one set of rules, guidelines, and procedures to govern any New Jersey professional conducting a child custody and/or parenting time evaluation regardless of that professional’s discipline. Although there is currently some consistency among the laws, regulations, and guidelines governing child custody evaluations, there is much work to be done to increase specificity across disciplines, standardize procedures, and coordinate professional regulations and guidelines with legal criteria. It is my hope that the bench, bar, and governing bodies of the applicable mental health professionals will come together to create an interdisciplinary committee to work on these uniform guidelines with, perhaps, the AAML Standards as a guidepost toward an appropriate outcome.
Special thanks are given to the following mental health professional for their assistance with this column: Robert Rosenbaum, Ph.D., Eileen Kohutis, Ph.D., and Madelyn S. Milchman, Ph.D.
[i] http://www.aaml.org/library/publications/21621/child-custody-evaluation-standards
[ii] http://www.aaml.org/library/publications/21621/child-custody-evaluation-standards/preamble Excerpt from the Preamble to the American Academy of Matrimonial Lawyers’ Child Custody Evaluation Standards booklet (“AAML”), with attribution to Maria Cognetti, J.D., Chair and the following members of the Committee: Marc Ackerman, Ph.D., Nancy Zalusky Berg, J.D., Rick Campbell, J.D., Keith Nelson, J.D., Arnold Shienvold, Ph.D., Louis Truax, J.D., Reporter: Sacha Coupet, J.D., Ph.D., Loyola University Chicago School of Law.