Volume 20, Number 6
September 2003

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By Lynn Hecht Schafran

Lynn Hecht Schafran is an attorney and director of the National Judicial Education Program to Promote Equality for Women and Men in the Courts.

Family courts make extensive use of outside professionals. Many of these "outside non-neutrals" can be a major source of bias and can blindside judges with flawed recommendations that are contrary to the best interests of the child.

Gender bias and outsourced custody evaluations. In the mid-1980s, state chief justices throughout the country began appointing task forces to examine gender bias in their court systems and recommend reforms. Several task forces commented at length about the problems with supposedly neutral custody evaluators who were characterized as

  • hired guns who always recommend custody for the parent who hires them;
  • always being either pro-mother or pro-father;
  • unfamiliar with the appropriate legal standard for determining the best interests of the child;
  • failing to follow professional standards for custody evaluations; and
  • clinging to outmoded sex-based stereotypes about appropriate roles and conduct for women and men.

The task forces expressed concern that judges rely heavily on outsourced custody evaluations and recommendations from psychologists, psychiatrists, therapists, social workers, guardians ad litem, and others. It is crucial that the people who perform custody evaluations be knowledgeable about the law and sensitive to the impact of stereotypical thinking on their decision making.

The impact of domestic violence on children. A competent custody evaluator should be aware that although false or exaggerated allegations of domestic violence are sometimes made in custody cases, domestic violence is a pervasive problem that must be taken seriously. Most important in the custody context is the impact of domestic violence on children. Children in violent homes suffer increased physical and psychological illnesses that undermine their health, social and emotional development, and interpersonal behaviors. The negative impact of domestic violence on children does not end in childhood. Because children learn from family experience, boys often react to domestic violence with aggression toward their own mothers and siblings, which they carry into their later lives as boyfriends, husbands, and fathers. Girls often become more passive and in later life may become involved with abusive men. The children's mistaken beliefs about appropriate behaviors are reinforced when the court system rewards batterers with custody.

Custody evaluators and domestic violence. Despite the severely negative impact of domestic violence on children, many guardians ad litem, psychologists, and other custody evaluators ignore evidence of domestic violence or insist it does no harm to youngsters. Researchers interviewed judges and asked why they had awarded custody to batterers in particular cases; many answered that domestic violence was not mentioned in the reports of the guardians ad litem. This was repeatedly confirmed by mothers in the study, who told researchers that despite providing the guardians ad litem with full information about abuses and asking them to call the district attorney, police, and others who could confirm the reports, the guardians ad litem refused to do so. One guardian dismissed evidence of abuse with the statement that "violence is endemic to our society."

The impact of domestic violence on children and the fairness of the custody dispute process are specifically addressed in Principles of the Law of Family Dissolution, recently released by the American Law Institute (ALI), which advises that the court should have in place a screening process to identify domestic violence; the parenting plan should describe the circumstances of the abuse; a hearing on the parental agreement should be held when credible evidence of child abuse or domestic violence exists; and mediators should screen for domestic violence and may not impose face-to-face mediation when it is present. Guardians ad litem should know how to recognize domestic violence and understand its impact on children and victim parents.

The double bind for mothers. The indifference to domestic violence demonstrated by some custody evaluators puts women in an impossible bind. Society holds mothers to an exacting standard with respect to protecting their children. Battered mothers are regularly prosecuted for neglect for "allowing" their children to witness domestic violence or for failing to seek an order of protection and leave the relationship. Others are prosecuted when they come to the authorities' attention because they have taken action. These mothers often lose their children to foster care. But battered mothers who report domestic violence are often ignored, accused of fabricating the abuse to deny fathers custody or visitation, categorized as "alienating" parents, or told the abuse has no bearing on custody decisions despite state laws requiring that domestic violence be taken into account in determining custody and visitation rights. Often, the mothers lose their children to the batterers. This paradox holds true for child sexual abuse cases as well.

Recommendations. Task forces and other entities have made numerous recommendations, including the following:

  • Each state supreme court should conduct an investigation of the role of custody evaluators and also determine which evaluators are most often requested or appointed.
  • Courts should reject psychological or guardian ad litem reports that perpetuate gender bias and insist that guardians ad litem and others who make custody recommendations receive training.
  • All judges and the people who report to them at all levels should participate in periodic gender fairness education programs.
  • Allegations of past physical or emotional abuse should be investigated before orders for temporary or permanent custody or visitation are entered. Neutral third parties experienced in detecting spousal and child abuse should conduct the investigations.
  • In cases that involve domestic violence, courts should not utilize mediation because it is intended only for parties of equivalent power.
  • In cases that do not involve domestic violence, courts should explore using mediation with mediators trained in understanding gender issues.
  • Courts using court services for custody evaluations should provide rigorous training and evaluation to ensure that those making custody recommendations are sensitive to bias in investigating and reporting.
  • The office of the state court administrator should develop a standardized format for statewide use in custody evaluations and reports.

The need for a standardized format. A detailed, comprehensive, and standardized format for evaluations and reports is key for two reasons: it will describe exactly how the evaluation should be conducted, and it will create a record that can be challenged if necessary. The standardized format must require a high level of detail to be effective. An official court form for these reports should be developed that contains the following elements:

  • a listing of all parties interviewed and an explanation of their relationship to the litigants;
  • a listing of all allegations of abuse made by any party, signed by the accuser;
  • findings regarding abuse suffered by the victim;
  • findings regarding abuse suffered by children;
  • a listing of evidence that led to the findings, with all related documents attached (not just those that support the evaluator's conclusions);
  • a statement of reasons for custody and visitation recommendations;
  • a statement of alternative recommendations;
  • a statement of the child's wishes; and
  • a cover sheet that red flags for particular scrutiny cases with abuse allegations.

Courts must guarantee the following: access to the reports, the right to submit written responses to clarify and correct the reports, and a system for these responses to become part of the permanent record to be reviewed by the judge.

- This article is an abridged and edited version of one that originally appeared on page 10 of The Judges' Journal, Winter 2003 (42:1).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
- Website: www.abanet.org/jd/home.html.
- Periodicals: The Judges' Journal, quarterly magazine; The Judicial Division Record, quarterly newsletter.
- Books and Other Recent Publications: The Directory of Minority Judges of the United States, 3d ed.; The Improvement of the Administration of Justice, 7th ed.; Judicial Outreach on a Shoestring: A Working Manual; Caseflow Management in the Trial Court: Now and for the Future; Standards Relating to Court Organization, 1990 ed.

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