CUSTODY EVALUATIONS IN
ABUSE CASES:
Good Science/Bad Science
Joan S. Meier
Director, Domestic Violence Legal
Empowerment and Appeals Project
(DV LEAP);
Professor of Clinical Law, George
Washington University Law School
American Judges Association
2012 Annual Conference
New Orleans, LA
The DV LEAP Custody and Abuse Technical Assistance (TA) Project is supported by Grant No. 2011-TA-AX-K006 awarded by the
Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the
Department of Justice, Office on Violence Against Women.

DV LEAP specializes in appellate litigation, in any state, concerning abuse. Custody has become at least 50% of our work, both on appeals and in the thousands of consultations we provide to desperate parents. Custody evaluations are ubiquitous.
We (and the rest of the dv field) receive 5-10 desperate pleas for help from protective parents per month; custody evaluations are typically a key factor in courts’ awards of custody or unprotected visitation to an abuser

THE POWER OF FORENSIC
EVALUATIONS IN CUSTODY CASES
 Courts understandably seek expert scientific input on custody decisions
 Because custody evaluators are typically court-appointed and non-partisan, courts place substantial trust in their opinions
 Courts rely especially on the factual or analytic portions; less so the actual recommendation

 LACK OF EXPERTISE IN ABUSE including child abuse
 PARENTAL ALIENATION
(SYNDROME)
 OVER-RELIANCE ON INVALID
PSYCHOLOGICAL TESTS

Lack of Genuine Scientific Expertise in
Abuse
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Professional psychology training programs lack focus on domestic violence, even in child abuse training
Typical training in child development and divorce emphasizes importance of both parents to the children
Evaluators often share public misconceptions that domestic violence is rare and extreme, and lack empirical knowledge of its commonality (approx 75%) in custody litigating families

Lack of Scientific Expertise, cont’d
Assumption:
Contesting fathers seek custody because they really love their children
Empirical reality:
B atterers litigate custody more than nonabusers, and custody litigation is a classic battleground for abusers (aka “tangential spouse abuse” or “dv by proxy”)

Evaluators fall prey to typical credibility errors:
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Reluctant to believe that sympathetic (crying, impassioned, or nice) fathers are abusers;
See abuse claims as mothers’ distortions, fabrications, mudslinging, and/or alienation;
Women’s fears and feelings (especially anger) often perceived as hysterical, pathological, or vengeful

Lack of Scientific Expertise - child abuse and child sexual abuse
E valuators often mistakenly think that:
 Children who express love toward or act comfortable with a parent could not have been abused by that parent
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Positive interactions between parent and child when observed are indicative of the parent’s treatment of the child in private and the relationship as a whole
Nice parents could not be abusive to their children

Lack of Child Abuse Expertise, cont’d
They often don’t know that:
 Bed-wetting or loss of bladder control is often a sign of sexual abuse
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Bathroom activities may trigger memories
Children do not disclose to just anyone. The failure to disclose to one or another interviewer is not indicative that there was no abuse
As one child said “on the outside I was smiling, but I was crying on the inside.”

A Pseudo-Scientific Theory Designed
Specifically for Custody Litigation:
Parental Alienation Syndrome
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“a disturbance in which children are preoccupied with deprecation and criticism of a parent – denigration that is unjustified and/or exaggerated … [T]he concept . . . includes the brainwashing component . . . It includes not only conscious, but subconscious and unconscious factors within the programming parent that contribute to the child’s alienation.”
(Smith & Coukos quoting Gardner)
Regularly invoked in court as grounds for disbelieving abuse allegations by mothers and children
Typically circular, i.e., evaluators point to the abuse allegations as evidence of PA(S), even though Gardner said it is not PAS if there was actually abuse

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PAS has been widely discredited as unscientific by numerous professional bodies and individuals
Instead, “parental alienation” is now used in almost exactly the same way
There is little dispute that some parents denigrate each other to the children, especially in divorce
BUT: There is no valid science underlying PAS, or the use of “PA” as a basis for discrediting allegations of abuse, nor as an explanation for children’s fears

A primary function of custody evaluations is to administer psychological tests. Courts and evaluators rely on these because they are numerically scored and appear objective.

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In fact, there is no test that identifies a batterer or victim. Standard psychological tests used in custody evaluations, such as the MMPI, MCMI, Bricklin BPS, etc, are not validated for custody litigation, and
Often pathologize battered women and find no pathology in batterers
See Bancroft & Silverman; National Council for Juvenile & Family Court
Judges Guide to Custody Evaluations for Judges; Erickson & Zorza;
Jaffe, Lemon & Poisson, CHILD CUSTODY AND DOMESTIC VIOLENCE

Custody Courts Can Improve the
Quality of Science Relied On
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Judges have the opportunity to make a real difference by insisting on relevant and accurate assessments in custody evaluations
Orders should spell out what the court needs from the evaluation, clearly articulating the need for information about the impact of dv/abuse on the children and parent and its implications for perpetrator’s parenting
Courts should appoint only evaluators with dv and/or child abuse expertise if case involves abuse claims
Courts can and should follow up on reports with questions about dv/abuse if report neglects to address it

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Journal of Child Custody Symposium on Child Custody and
Domestic Violence, Vol. 6, Nos. 3-4 (2009)(articles by Jaffe,
Geffner, Meier, Zorza, Stark, Stahly, et al)
Haselschwerdt, Hardesty and Hans, Custody Evaluators’
Beliefs about Domestic Violence Allegations During Divorce:
Feminist and Family Violence Perspectives, J. Interpersonal
Viol. XX(X) 1-26 (2010)
Dan Saunders, Child Custody Evaluators’ Beliefs About
Domestic Abuse Allegations: Their Relationship to Evaluator
Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations, Final Technical
Report submitted to the National Institute of Justice, U.S.
Department of Justice, October 31, 2011