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Child Custody Litigation:  Professional Guidelines and Practice Parameters

Note: the following references are provided for educational and informational purposes only. The views expressed in a specific article are those of the author or authors and do not necessarily represent those of the Leadership Council.

American Bar Association Commission on Domestic Violence. (2006). 10 Myths About Custody and Domestic Violence and How to Counter Them. Washington, DC: Author.

American Bar Association Commission on Domestic Violence. (1994). Model Code on Domestic and Family Violence. Washington, DC: Author.

For more information on how to obtain the Model Code, go to http://www.abanet.org/domviol/code.html
or contact the Family Violence Department, National Council of Juvenile and  Family Court Judges, University of Nevada, Reno, P.O. Box 8970, Reno, Nevada 89507, (775) 784-6012 or (800) 527-3223.

The Model Code treats domestic and family violence as a crime requiring aggressive and thorough intervention and emphasizes safety of the victim and children, and accountability of the batterer.

Summary of content provided in Chapter 4, FAMILY AND CHILDREN

  • Rebuttable presumption that it is detrimental to the child and not in the  best interest of a child to be placed in the custody of a perpetrator when finding of family violence
  • Safety and history as factors in custody and visitation
  • Rebuttable presumption that it is in the best interest of a child to reside  with the non-perpetrating parent in the location of that parent's choice when finding of family violence
  • Finding of family violence since last custody determination constitutes a  change of circumstances
  • Factors and conditions for visitation to promote safety of children and  parent
  • Specialized visitation centers to provide a secure setting, specialized  procedures for transfer and visitation, and a trained supervisor
  • Alternative sections concerning mediation for custody cases if an order for  protection is in effect
  • Children's Protective Services to provide written procedures for screening,  to provide services to victimized parent, and to promote removal of perpetrator

American Bar Association, Family Law Section. (1996). Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases. Chicago, IL: ABA
http://www.abanet.org/family/standards.pdf

EXCERPT from introduction:

"All children in contested child custody and visitation cases deserve to have their best interests thoroughly and impartially investigated and considered by the courts, regardless of their parents' litigation choices or limited resources. Children also deserve to have these proceedings conducted in a manner least likely to affect them adversely and most likely to provide judges with the facts needed to decide the case in accordance with the law. These Standards clarify when, why and how independent representatives for children's interests should be appointed to further these purposes."

"These Standards adapt the existing A.B.A. Standards of Practice for Representing a Child in Abuse and Neglect Cases to provide comprehensive guidance and standards of conduct for Children's Attorneys in custody and visitation cases; and to describe the duties which are common to all categories of children's representatives in such cases."

American Academy of Child and Adolescent Psychiatry. (1997). Practice Parameters for Child Custody Evaluation. Journal of the Academy of Child and Adolescent Psychiatry, 36 (10suppl), 57S-68S.
Reprint requests: AACAP, Communications Department, 3615 Wisconsin Ave. N.W. , Washington, DC 20016
Full text is also available to Academy members on the World Wide Web at http://www.aacap.org
Summary: http://www.fact.on.ca/Info/pas/aacap.pdf

American Psychiatric Association. (1981, 1988). Child Custody Consultation: Report on  the Task Force on Clinical Assessment in Child Custody. Washington, DC: American Psychiatric Association.

American Psychiatric Association. (1991). Task Force Report 31. Disclosure of Psychiatric Treatment Records in Child Custody Disputes. Washington, DC: American Psychiatric Association.

American Psychological Association, Practice Directorate. (1994). Guidelines for Child Custody Evaluations in Divorce Proceedings. American Psychologist, 49(7), 677-680.
Available on-line: http://www.apa.org/practice/childcustody.html

Ovid Full Text

I. Orienting Guidelines: Purpose of a Child Custody Evaluation

      • The primary purpose of the evaluation is to assess the best psychological interests of the child.
      • The child's interests and well-being are paramount.
      • The focus of the evaluation is on parenting capacity, the psychological and developmental needs of the child, and the resulting fit.

II. General Guidelines: Preparing for a Child Custody Evaluation

      • The role of the psychologist is that of a professional expert who strives to maintain an objective, impartial stance.
      • The psychologist gains specialized competence.
      • The psychologist is aware of personal and societal biases and engages in nondiscriminatory practice.
      • The psychologist avoids multiple relationships.

III. Procedural Guidelines: Conducting a Child Custody Evaluation

      • The scope of the evaluation is determined by the evaluator, based on the nature of the referral question.
      • The psychologist obtains informed consent from all adult participants and, as appropriate, informs child participants.
      • The psychologist informs participants about the limits of confidentiality and the disclosure of information.
      • The psychologist uses multiple methods of data gathering.
      • The psychologist neither overinterprets nor inappropriately interprets clinical or assessment data.
      • The psychologist does not give any opinion regarding the psychological functioning of any individual who has not been personally evaluated.
      • Recommendations, if any, are based on what is in the best psychological interests of the child.
      • The psychologist clarifies financial arrangements.
      • he psychologist maintains written records

American Psychological Association. (1996). Report of the APA Presidential Task Force on Violence and the Family. Washington, DC: Author.
Available on-line: www.apa.org/pi/pii/issues/issue5.html

EXCERPT: "Most people, including the battered woman herself, believe that when a woman leaves a violent man, she will remain the primary caretaker of their children.  Family courts, however, may not consider the history of woman abuse relevant in awarding custody. Recent studies suggest that an abusive man is more likely than  a nonviolent father to seek sole physical custody of his children and may be just as likely (or even more likely) to be awarded custody as the mother. Often fathers win physical custody because men generally have greater financial resources and can continue the court battles with more legal assistance over a longer period of time.

Family courts frequently minimize the harmful impact of children's witnessing violence between their parents and sometimes are reluctant to believe mothers.  If the court ignores the history of violence as the context for the mother's behavior in a custody evaluation, she may appear hostile, uncooperative, or mentally unstable. For example, she may refuse to disclose her address, or may resist unsupervised visitation, especially if she thinks her child is in danger. Psychological evaluators who minimize the importance of violence against the mother, or pathologize her responses to it, may accuse her of alienating the children from the father and may recommend giving the father custody in spite of his history of violence."

American Psychological Association Committee on Professional Practice and  Standards. (1998). Guidelines for psychological evaluations in child protection matters . Washington, DC: American Psychological Association.
Available on-line: http://www.apa.org/practice/childprotection.html

EXCERPT:

4. The role of psychologists conducting evaluations is that of professional expert who strives to maintain an unbiased, objective stance.

5. The serious consequences of psychological assessment in child protection matters place a heavy burden on psychologists . Because psychologists' professional judgements have great potential to affect the lives of others, psychologists are alert to guard against factors that might lead to misuse of their findings. For example, in an initial dispositional hearing, psychologists' findings may be used to separate the child from her/his parent(s). In a final dispositional hearing, the psychologists' findings may be a factor in the decision to terminate parental rights. The gravity and potential permanence of this consequence underscore the importance for psychologists to reasonably insure the objectivity of the assessment procedure and findings.

6. Psychologists gain specialized competence .

B. Psychologists make reasonable effort to use current knowledge of scholarly and professional developments, consistent with generally accepted clinical and scientific practice, in selecting evaluation methods and procedures.

13. Psychologists neither over-interpret nor inappropriately interpret clinical or assessment data. Psychologists refrain from drawing conclusions not adequately supported by the data. Psychologists interpret any data from interviews or tests cautiously and conservatively, strive to be knowledgeable about cultural norms and present findings in a form understandable to the recipient. Psychologists strive to acknowledge to the court any limitations in methods or data used. In addition, psychologists are aware that in compelled evaluations the situation may lend itself to defensiveness by the participant, given the potentially serious consequences of an adverse finding. Consequently, the situational determinants should be borne in mind when interpreting test findings.

American Psychological Association. (1992). ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT. (Effective date December 1, 1992).
Available on-line at http://www.apa.org/ethics/code.html

GENERAL PRINCIPLES

PRINCIPLE A: COMPETENCE
PRINCIPLE B: INTEGRITY
PRINCIPLE C: PROFESSIONAL AND SCIENTIFIC RESPONSIBILITY
PRINCIPLE D: RESPECT FOR PEOPLE'S RIGHTS AND DIGNITY
PRINCIPLE E: CONCERN FOR OTHERS' WELFARE
PRINCIPLE F: SOCIAL RESPONSIBILITY

Guidelines for Guardians ad Litems

A selection of state GAL guidelines published on the internet.

GAL Guidelines from the South Carolina Bar

Tennessee Supreme Court Rule 40 : Guidelines for Guardians Ad Litem

Kansas Supreme Court Rules - Guidelines for Guardians Ad Litem

Travis County, Texas- Guardian Ad Litem Information for Parents

National Associaton of Counsel for Children. (1996). ABA/NACC Revised Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases. (Amended 1999).
Available on-line: http://naccchildlaw.org/documents/abastandardsnaccrevised.doc

The NACC believes that American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases is a significant advancement in the practice of law for children . At the same time, the NACC believes the Standards should provide an alternate representation scheme in certain circumstances, particularly where very young children are concerned. The NACC, therefore, produced an edited version of the Standards.

National Associaton of Counsel for Children. (2001). NACC Recommendations for Representation of Children in Abuse and Neglect Cases.
Available on-line at http://naccchildlaw.org/documents/naccrecommendations.doc

This document is designed to assist jurisdictions in the selection and implementation of a model of child representation. The NACC believes that children's legal service needs can be met by both client directed ("expressed wishes") and advocate directed ("best interest") models of representation. Rather than urging jurisdictions to choose a particular model, this document sets out a checklist of children's needs that should be met by whatever representation scheme is chosen. In an effort to help jurisdictions understand various models, this document includes a section describing the various models of representation. Whatever form of representation jurisdictions choose, the NACC believes that every child subject to a child protection proceeding must be provided an independent, competent, and zealous attorney, trained in the law of child protection and the art of trial advocacy, with adequate time and resources to handle the case.

The National Association of Women and the Law. (1998, March). Recommendations to the Special Joint Committee on Child Custody and Access. Ottawa, Ontario, Canada.
http://www.harbour.sfu.ca/freda/reports/recom.htm

The National Association of Women and the Law (NAWL), is a Canadian, non-profit, feminist organization active in legal research, law reform and public education.

National Child Abuse and Neglect Data System. (1997). Child Maltreatment 1997: Reports from the States to the National Child Abuse and Neglect Data System (Government Printing Office, 1999) Page D-9, Tables 3.1 and 3.2
http://www.acf.dhhs.gov/programs/cb/publications/ncands97/apd.htm

According to data collected by the federal government, less than 1% (0.00999634) of reported cases of child maltreatment that are labeled "unsubstantiated" represent intentionally false reports. These figures are based on data from four states ( Florida , Missouri , Vermont , and Virginia ) which gathered data on intentionally false reports as a subgroup of unsubstantiated reports.

STATES

TOTAL REPORTS

UNSUBSTANTIATED

INTENTIONALLY FALSE

Florida

186,726

92,337

868

Missouri

80,185

49,490

460

Vermont

2,309

1,257

18

Virginia

51,227

37,282

457

TOTAL

320,447

180,366

1,803

National Council of Juvenile & Family Court Judges. (2007). A Judicial Checklist for Children and Youth Exposed to Violence. Reno, NV: NCJFCJ.

Conceived and funded by the U.S. Department of Justice, Office of Justice Programs,
Office of Juvenile Justice and Delinquency Prevention (OJJDP) as part of its Safe Start
Initiative, this publication is a collaborative effort to provide accessible information and
a useful reference tool for judges and practitioners in juvenile and family courts about
children’s exposure to violence. This Technical Assistance Brief provides:

  • A broad overview of children and youth exposure to (or witnessing of)
    domestic violence and community violence.
  • A brief discussion of the effects on children and youth of exposure to violence.
    A Checklist for Children and Youth Exposed to Violence.
  • A review of several promising community collaborations that employ a multidisciplinary
    approach in responding to children’s exposure to violence.
  • A list of references for further information about this complex topic.Provides a quick checklist to identify whether a child has risk factors for exposure to violence and whether the child is being negatively impacted.

National Council of Juvenile and Family Court Judges. (2006). Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide (2nd edition). Reno, NV: NCJFCJ.

"Richard Gardner's theory positing the existence of "parental alienation syndrome" or "PAS" has been discredited by the scientific community.15 Testimony that a party to a custody case suffers from the syndrome should therefore be ruled inadmissible both under the standard established in Daubert and the stricter Frye standard."

Read whole excerpt on PAS

National Council of Juvenile and Family Court Judges. (1995). Resource Guidelines, Improving Court Practice in Child Abuse and Neglect Cases. Reno, NV: NCJFCJ.
Available from:
National Council of Juvenile and Family Court Judges
P.O. Box 8970
Reno , Nevada 89507
(775) 784-6012 or (800) 527-3223

National Council of Juvenile and Family Court Judges. (1994). Model Code on Domestic and Family Violence. Reno, NV: NCJFCJ.
Available from: http://www.abanet.org/domviol/code.html
National Council of Juvenile and Family Court Judges
P.O. Box 8970
Reno , Nevada 89507
(775) 784-6012 or (800) 527-3223

EXCERPTS:

Sec. 401. Presumptions concerning custody.

In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence.

Sec. 402. Factors in determining custody and visitation. 1. In addition to other factors that a court must consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of domestic or family violence: (a) The court shall consider as primary the safety and well-being of the child and of the parent who is the victim of domestic or family violence. (b) The court shall consider the perpetrator's history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person. 2. If a parent is absent or relocates because of an act of domestic or family violence by the other parent, the absence or relocation is not a factor that weighs against the parent in determining custody or visitation.