The Role of the Psychologist in Family Law Custody Battles

With divorce rates ever rising in Canada issues surrounding parenting after divorce are becoming more and more prevalent. As it stands 31% of marriages in Canada are ending in divorce. Of the 31% of marriages that end in divorce an even smaller portion end up in

litigation. (Schuller & Ogloff, 2002, p. 393) As a legal assistant in a family law office I see many of the most complex family custody disputes and many instances where the Court appoints a Psychologist to assist in the Judge’s decision. Does having an expert third party involved in custody and access decisions offer the Judge a different perspective or simply reinforce what he or she already knows?

Review of research on the Psychologist’s role in custody and access disputes demonstrates that the Psychologist does play an integral part in assisting families caught in litigation in forming a parenting plan that is in the best interest of the child or children of the marriage (Covell, 1999; Emery, Laumann-Billings, Waldron, Sbarra & Dillon, 2001; Sorenson, Golman, Sheeber, Albanese, Ward, Williamson, & McDanal, 1997). The use of a third party expert in litigation is not a new concept and should be more widely used when it comes to family law. Research indicates there to be greater satisfaction in families that go through litigation compared to those who go through mediation and greater satisfaction yet when families have an independent third party to assist in developing a parenting regime (Covell, 1999; Emery et al., 2001; Sorenson et al., 1997).

Summary of Research

The Law
When examining family law matters we must understand the law as set out in the Family Law Act which came into effect on October 1, 2005 (Alberta Court Family Justice, 2005). The Family Law Act is intended to focus on the needs of child or children of the relationship and to put those needs first, it is also intended to streamline the Court process by encouraging the resolution of issues through mediation (Alberta Court Family Justice, 2005).

Under the Family Law Act the word “parenting” has replaced the words “custody and access,” this is intended to reflect that parenting is still the responsibility of both parents regardless of the breakdown of their relationship. Parents are to continue to share guardianship of their child or children after their separation until they agree on a parenting plan or the Court orders otherwise. The Court reserves the right to intervene where necessary and appropriate (Alberta Court Family Justice, 2005).
Practice Note 7 allows for the Alberta Courts to appoint a Psychologist to a family law case for either an Assessment or Intervention. The Psychologist is referred to as an independent parenting expert and is appointed when in family matters there is no resolution possible and the Court needs an objective professional opinion to assist in looking out for the best interests of the child or children involved, the Court may also appoint an independent parenting expert to expedite and facilitate a resolution of specific issues that are better resolved in a non-adversarial fashion (Alberta Court Family Justice, 2005).

When an Assessment is used in matters of child custody the independent parenting expert will examine both parent and child and provide his recommendations with respect to which parenting arrangement is in the best interest of each child. The expert will take into consideration the results of psychological testing, the mental health of the individuals being examined as well as any issues identified by the Courts as set out in the Assessment Order. The parenting expert may provide his or her input into the parameters of the Assessment and whether or not an Intervention may be more appropriate (Alberta Court Family Justice, 2005).
Similar to an Assessment, for an Intervention an independent parenting expert will usually make his recommendation to the Court as to what he feels is appropriate for that particular case. There are several forms of Intervention, which include, but are not limited to, counseling, therapy, educational sessions such as Parenting After Separation, evaluation and recommendations. The expert may determine a parenting plan that is agreeable to all parties involved or he may terminate the Intervention if he feels it is not going to be useful (Alberta Court Family Justice, 2005).

Covell (1999) argues that the existing system used in custody decisions is not really in the best interest of the child. In examining the current Canadian system she examines both cases with Psychologists involved and cases without. Covell indicates that the child’s best interests are best represented when a Parenting Plan is put to use. The underlying assumptions associated with having a Parenting Plan approach are as follows: parents enter the divorce process with little understanding of the impact it will have on themselves as well as their children; parents become self-absorbed during the divorce process and forget the best interests of their children; there will be future conflict between the parents; and that it is in the best interest of the child to have both parents involved in the parenting process. The assumptions as set out above are true to most custody cases and therefore a Parenting Plan tends to offer a long-term solution to custody arrangements, which in turn more often offers greater stability to the child or children involved.

Emery et al. (2001) examines follow-up data obtained twelve years after either mediation or litigation in custody disputes. In this study litigation was not broken down into cases in which a Psychologist was involved and cases in which one was not. Mediation was provided through a court appointed mediator, not a Psychologist. In contrasting litigation to mediation Emery et al. found similar to Covell that those who went through litigation were able to stick to a parenting plan over a greater period of time offering more stability to the child or children of the relationship. Those who went through litigation found that there was more satisfaction amongst each parent resulting in less post-decision conflict.

Sorenson et al. (1997) examines a study of sixty families involved in contested custody cases in the State of Florida. Of the sixty families studied the most common custody arrangement involved granting one parent primary residency. They found that there was almost equal distribution of judges granting primary residency mothers and fathers; however, judges were more likely to grant primary residency to fathers when a Psychologist was involved. Without the involvement of a Psychologist it was noted that the judge would most often go with the State’s presumption of shared custody based on the child’s interests. Overall the research supports and emphasizes that there is greater satisfaction with the use of the expert testimony from a Psychologist in assisting the Courts in custody decisions.

Faust and Ziskin (1988) are skeptics when it comes to forensic psychology and its relevance in law. They claim that the instability of method and theory inhibits the accumulation of scientific knowledge. Faust and Ziskin offer several arguments against the use of expert testimonies in the courtroom. Studies they reviewed show that clinicians’ error rate exceeded their accuracy rate. Also in research reviewed clinicians generally are not experienced in the forensic role because they are more familiar with the role of helping patients. Faust and Ziskin feel that the clinician’s tendency to empathize with people will cloud the Court’s decision. Lastly, they believe that clinicians tend to overvalue supportive evidence and undervalue counterevidence, which leads to the presumption of abnormality when it might not be there. Overall, Faust and Ziskin believe that the expert’s testimony will reflect personal biases and can mislead the Courts.

Analysis and Critique
The research cited above is a small portion of the research that exists in the area of forensic psychology specifically family law. While Covell, Emery et al. and Sorenson et al. investigate the Psychologist’s role in custody decisions based on the satisfaction of the parties involved after the litigation process, Faust and Ziskin examine the process itself looking at the clinician’s role as opposed to the outcome. Both methods of research although different have a consistent theme. It seems that bias exists throughout the legal system and when one adds an expert third party it adds the possibility of greater bias.
When comparing the research of Covell, Emery et al. and Sorenson et al. it is evident that structure increases satisfaction as well a stability in the outcome of custody cases. Covell offered mainly suggestion of the best approach to psychology in family law stemming from her research of the child’s best interest that in some regards is a bit of a stretch from the data used. Emery et al. and Sorenson et al. relied on surveys from longitudinal studies post-custody decision, the groups were between thirty-five and sixty all randomly selected which reduces researcher bias but increases variables.

Suggestions for Future Research
With the amount of variables that exist in family law it would be ideal to have a study longitudinally examining families who have gone through the litigation process for custody arrangements comparing the outcomes of cases using a Psychologist and those that do not. The families would need to be of similar socioeconomic status, have the same number of children and have parents who reside in the same city. Also, for consistency, it could be useful to ensure that families studied have similar family structure post-divorce i.e. having step-parents/siblings etc. A longitudinal study allows us to understand what truly works and what does not in terms of child custody arrangements over a long period of time.

Although somewhat unrealistic, it would all be interesting and informative to do a comparison of a Judge’s decision for custody in comparison to a Psychologist’s recommendations when given the same case and track the discrepancies between the two using several cases and several Judges and Psychologists in the same area. This would allow not only for the Psychologists and Judges to be compared but it would give insight into the discrepancies that exist within each profession.

When reaching a custody agreement between parents is impossible litigation is the best option. Litigation offers a structured environment to resolve family law conflict. In a litigated case, when there are expressed concerns about emotional or psychological problems that adversely effect parenting abilities or the children’s emotional well-being, or when the parties’ conflicts have become such that their hostility impedes any progress towards settlement, the services of a psychologist will be called upon by the Court to assist the decision-making process. The goal of the Court appointed Psychologist is to provide recommendations and input that can provide a basis for informed settlement discussions on residency and parenting plans that meet the individual needs of the family involved in the litigation.

The structure of the Family Law Act incorporating Practice Note 7 creates a system where there is less inter-parental conflict and likely to be more meaningful involvement of both parents in the child’s life through an agreed to Court Ordered parenting plan. Through litigation using a psychologist it results in less re-litigation and therefore less disruption to the child’s well being (Covell, 1999).

Although it is difficult to track and research the role of the Psychologist in family law custody matters the research reviewed in this paper indicates that there is little negative to come from having an expert independant third party assist the Court’s decision. Faust and Ziskin (1988) do identify that each party brings their own biases into the puzzle but the other research examined herein acknowledges the same and concludes that despite the potential bias, greater good comes from the Psychologist’s involvement.

Whether a Psychologist appointed by the Court uses an intervention or assessment style to report to the Court he provides support to both the parents and child or children involved in what can be a very emotional experience. In addition to providing support to the family the Psychologist can assist both the parents and the Court to identify the best interests of the child which is the focus of the Family Law Act.

Alberta Court Family Justice. (2005). Alberta’s family law act: an overview. Retrieved November 11, 2006, from FLA Overview.pdf
Covell, K. (1999). Promoting parenting plans: a new role for the psychologist as expert in custody disputes. Expert Evidence 7,113-126.
Emery, R., Laumann-Billings, L., Waldron, M., Sbarra, D., and Dillon, P. (2001). Child custody mediation and litgation: custody, contact and coparenting 12 years after initial dispute resolution. Journal of Consulting and Clinical Psychology,69 (2), 323-332
Faust, D., Ziskin, J. (1988). The expert witness in psychology and psychiatry. Science, 241, 31-35.
Schuller, R., Ogloff, J. (Eds). (2002). Introduction to psychology and the law Canadian perspectives. Toronto: University of Toronto Press.
Sorenson, E., Golman, J., Sheeber, L., Albanese, I., Ward, M., Williamson, L and
McDanal, C. (1997). Judges reliance on psychological, sociological and legal variables in contested custody decisions. Journal of Divorce and Remarriage 27(1/2), 1-25.