The evolution of current American attitudes and concepts of family, marriage, divorce, and childrearing responsibilities has been highly influenced by technological innovations, and by changing legal concepts, economic conditions, and governmental policies (1). These factors include the development and availability of birth control and family planning options in the 1960s and the women’s and children’s rights movements in the 1960s and ’70s (2,3,4).

During these decades, the U.S. Supreme Court affirmed constitutional rights to privacy regarding the sexual behaviors of adults (5,6). The past 3 decades have also seen large changes in the labor market and increase in educational and employment options for women. There have also been various governmental tax policies (marriage penalties) and transfer payments (social welfare and dependency support) that impact individual decisions about marriage, cohabitation, and childrearing arrangements (7,8,9).

These same sociocultural changes impelled the divorce reform pressures in the 1960s, resulting in the divorce reform state statutes in the 1970s, enabling no fault divorce, community property rights, and variable child custody arrangements. Recent demographic trends indicate that approximately one-half of marriages in the United States end in divorce, with increasing numbers of children living with an unmarried or single parent. Approximately one-third of American children will experience significant family instability and grow up living with only one parent, especially if they are poor and minority children (7).

These sociocultural changes and legal reforms in turn have generated a demand for competent psychiatric evaluators who are knowledgeable about the complex clinical, legal, and ethical considerations involved with child custody work, and who are capable of integrating and translating the multidimensional aspects of this evaluation into a comprehensive and useful format for the courts.

While some parents may think or hope that their conflicting or untoward behavior may have little impact on the child, our clinical experience with these children reveals the heartfelt sensitivity and anguish that the child may feel. For example,
one 5-year-old boy when discussing with the child custody evaluator his experience in his family, apprehensively stated, “My parents are having a tug of war and I am the rope.” An 8-year-old girl, after overhearing part of her mother’s angry telephone exchange with her father, anxiously asked her mother, “Do you hate the part of me that is Daddy?”

The psychological sequelae on children of divorce are dependent on many risk and protective factors, but a large body of research over the past 30 years confirms that divorce increases the overall risk for adjustment problems in children and adolescents (10,11,12,13,14). Overall, the data indicate the psychological risk to be at approximately two times greater for children of divorce families as compared to children from intact families (12,15). More specifically, about 10% of children in married families had serious psychological and social problems compared to 20–25% of children from divorced families (12,13,16).

Several important longitudinal studies have investigated the short- and long-term effects of divorce on children (13,17). According to these studies, the initial period of separation is immensely stressful for the majority of children and adolescents, partially due to the fact that most children are uninformed by their parents about the separation or divorce (13). Thus, a large number of children are unprepared for their parents’ separation and react with an acute, intense sense of shock, disbelief, distress, sorrow, anxiety, and anger (13,15). Developmental factors dictate how children and adolescents manifest their distress at the time of marital rupture (12,15,18,19). Preschool children can experience regression, intensified anxiety, fears and neediness, sleep disturbances, and increased aggression. Middle school–aged children may experience anxiety, loneliness, and a sense of powerlessness. They may also struggle with feelings of responsibility for the divorce, conflicts of loyalty between the parents, and have fantasies of reconciliation. Their school performance and peer relationships may also be negatively affected. Adolescents may experience acute depression, intense anger, and anxiety about their own future relationships. They may also withdraw socially and accelerate their separation and individuation process from the family. In general, this acute response diminishes or disappears over a period of 1 to 2 years (13). Interestingly, the initial responses of children do not necessarily predict the longer term consequences for psychosocial adjustment (15).

Regarding the longer term consequences, children of divorce are significantly more likely to have externalizing problems such as conduct disorder and antisocial behaviors, relationship problems with peers, parents and authority figures, academic problems, and internalizing symptoms such as depression, anxiety, and low self–esteem (16). Other potentially long-term negative effects of divorce include a significant decline in the economic stability of their family and the loss of important relationships with close friends and extended family members, including nonresident parents, who are typically the fathers. As young adults, these children are at risk for weaker marital relationships, earlier pregnancies and lower socioeconomic attainment (16).

The psychological impact of the divorce on any individual child is dependent on a number of risk and protective factors. High levels of interparental conflict— whether in the conflict of the marriage or in high conflict divorce situations— appear to have an especially negative influence on the psychological adjustment of children (20). Protective factors include a good relationship with at least one parent or caregiver, parental warmth, and the support of siblings and peers (13,16). The effect of the parent and child’s gender on postdivorce adjustment is another increasingly important area of study. The data on this subject is unclear, with some studies indicating boys are more vulnerable than girls in both short-term and long-term consequences (15,21). In mother-custody families, boys may have improved adjustment with regular paternal contact, provided the father is reasonably healthy (21). Overall, interparental conflict, the psychological health of the parents, and the quality of the parent–child relationships appear to be among the most important predictors of a child’s adjustment to divorce (16,22).

Despite the increased risk of psychopathology in children of divorce, it is important to recognize that the majority of controlled research findings demonstrate that no significant difference exists between children from divorced and married families (13,18). More specifically, about 75 to 80% of children and adolescents who come from a divorced family do not suffer major psychological problems (13). In other words, the majority of children demonstrate resiliency rather than dysfunction as an outcome of divorce.

Changing values and perceptions of women and children’s rights in the 1970s (2) have largely driven the evolution of current concepts of divorce. Historically, the father had inherent custody of the children since they were considered to be his “chattels” or property and women had few legal rights (18,23,24). From the mid-nineteenth century through the later part of the twentieth century, the courts emphasized the importance of the mother–infant bond and adopted the “tender years doctrine,” with custody presumptively going to the mother (23). During the 1970s, the courts also relied on the concept of the “psychological parent,” with the presumption that the mother fulfilled this role (15). The current social and legal trend has moved away from assuming single parent custody and increasingly recognized the importance of the father’s role in parenting (25). Currently, the legal doctrine of the “best interests of the child” is the guiding principle in deciding child placement and custody disputes (26). The model legislation of the Uniform Marriage and Divorce Act (the “Act”) approved by the American Bar Association in 1974 (27) further established the language and definition regarding the “best interests” criteria. According to the relevant section (section 402), the court shall consider the wishes of the parents and the child; the interactions of the child with those who may significantly affect his or her best interests; the child’s adjustment to his or her home, school and community; and the mental and physical health of all individuals involved (26,27).

The majority of states have adapted their statutes from the concept of and language in this Act (26). For example, in California, the court makes a determination in the “best interests of the child,” considering “among any other factors it finds relevant,” “the health, safety, and welfare of the child,” “allegations of abuse and neglect” and “the habitual and continued illegal use of controlled substances or the continual abuse of alcohol (28).” California Family Code Section 3040 further delineates the “best interest of the child” definition: “The court shall consider, among other factors, which parent is more likely to allow the child frequent and continued contact with the non-custodial parent … and shall not prefer a parent as custodian because of the parent’s sex.” California Family Code Section 3042 also states, in part, “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give weight to the wishes of the child in making an order and granting or modifying custody (29).” Despite the general acceptance of the “best interests” principle (30,31) the concept remains ambiguous, leaving judges wide discretion to interpret it in a variety of ways. As a result of this vagueness, the courts have increasingly relied on the expertise of mental health professionals to assist in the determination of the “best interests” concept (23).

Another important legal concept in child custody work involves the two usual outcomes of a custody dispute, namely joint or sole custody (31). In joint legal custody, both parents have legal decisionmaking powers regarding their child’s welfare. In sole legal custody, one parent has the legal authorization to make major decisions for the child. In joint physical custody, the child resides for periods of time in each parent’s home. The schedule regarding the time spent in each household and transitions between residences varies on a case-by-case basis. In sole physical custody, the child resides with one parent all the time. Current literature reflects a lack of consensus on the best custody arrangement for children (21).

Competence as a forensic specialist in child custody work involves a well trained clinician with sufficient skills in evaluation, diagnosis, and treatment of mental health problems (18,23,32). Other important skills include knowledge of child development, an understanding of family dynamics, and familiarity with family law and the legal process of divorce and custody in the relevant jurisdiction. In many states, clinicians must remain current in their knowledge of child custody issues by participating in relevant court approved continuing education requirements. For example, court appointed child custody evaluators must document that they have obtained appropriate training as specified by the Judicial Council of California (33).

To further promote and maintain standards of care in this exceedingly complicated area of forensic work, guidelines for evaluating child custody disputes have been published by practitioners and other mental health and legal associations. Professional organizations have taken the lead in developing guidelines and practice parameters. The AACAP has published Practice Parameters for Child Custody Evaluations (23); other guidelines have been published by the American Psychological Association (34), the American Association of Family and Conciliation Courts (35), the American Psychiatric Association (36), the Judicial Council of California (37) and other mental health professionals (19,32,38).

Prior to beginning the evaluation, the expert should familiarize himself with the common ethical issues and pitfalls frequently encountered in child custody work (19). Wearing “two hats,” therapist and forensic evaluator, is a common mistake and inappropriate in the setting of a custody evaluation (31,39). As a therapist, the clinician acts as an advocate for the child and attempts to establish a therapeutic alliance with him/her for the purpose of treatment. As a forensic evaluator, the clinician is acting as a neutral expert who assesses the child and then provides objective information and informed opinions to the attorney or court. Before starting the evaluation, the clinician should be clear about his role and convey this information to all parties involved. The evaluator should also avoid situations that might bias the evaluation or suggest a conflict of interest such as prior involvement with either of the parties in the case (23,39). Finally, the expert should be careful about conducting unilateral evaluations with only one parent–child interaction assessed. This type of one-sided participation inherently leads to biased assessments (40).

The psychiatric evaluation process itself has several phases. The initial phase essentially involves acceptance of the referral, clarification of the questions to be answered and determination of the fee schedule (40). In order to avoid a biased assessment, the referrals should come from both attorneys and the judge. Experts should talk to the attorneys in a conference regarding clarification of the questions to be answered. Evaluation and court time fees should be determined up front and full or partial retainers requested prior to starting the evaluation process (23).

The next phase of the evaluation consists of the clinical interview and collection of data from a variety of sources. Prior to beginning the interview process, the expert may explain to the parents that information provided in the evaluation is not a confidential or privileged communication; the information can be disclosed in the written evaluation and to the attorneys and judges during the court process (18). The expert should obtain written waivers regarding this issue. Interviews typically include an interview with each parent individually, the child alone, and the child with each parent (18,23,32). Some evaluators prefer to make home visits to put the information they are gathering in a larger context. In the interview with parents, the expert may obtain the history of the marriage and separation and each parent’s psychosocial history, work schedule, financial stability, social support network, parent capacities and understanding of the child’s needs, plan for meeting these needs, disciplinary style, daily routine with the child, and relevant cultural and religious beliefs (23,32).