Encyclopedia of Psychology and Law

custody, the effects of which have been widely debated

since the 1980s, appears to be relatively uncommon. Of

note, custody arrangements appear to evolve over time,

with actual living situations not necessarily correspond-

ing with the initial legal agreements.

Legal Standards

All U.S. jurisdictions determine custody using the

“best interests” standard, wherein custody is granted

in accordance with the promotion of circumstances

that ostensibly are in the best interests of the children.

In practice, this standard has been found to be vague

and difficult to apply. Some states have begun to oper-

ationalize the term best interestsby identifying spe-

cific factors that have an impact on a child’s welfare.

In turn, these factors become the specific focus of the

custody evaluation process.

Custody standards for many states are informed by

the Uniform Marriage and Divorce Act (1979), which

specifies various factors on which the best interests stan-

dard for a specific child should be based (e.g., the inter-

action and interrelation of the children and their parents).

Although the specific standard differs from state to state,

some evidence of standardization has begun to emerge.

For example, state codes typically require an evaluation

of each parent’s current status (e.g., employment, parent-

ing skills), history (e.g., in terms of caretaking, sub-

stance abuse, spousal abuse), and psychological health

(e.g., ability to be flexible, general mental health). The

courts also are to consider the wishes of the child con-

cerning placement if the child is developmentally able to

express such wishes. In addition, the courts may flexibly

consider any other factors found to be relevant. Of note,

some authorities have questioned the heavy emphasis on

what are ostensibly in a child’s best “psychological”

interests rather than on factors such as economic, educa-

tional, or medical well-being.

Although the states have attempted to identify

important types of information on which to base cus-

tody decisions, they do not limit the methods through

which this information is gathered. For example, exam-

iners typically are not constrained in their choice of

evaluation approaches or tests. Likewise, courts do not

have standard formulae for weighting the evidence pro-

vided. Such plasticity in the actual application of the

law prevents courts from being locked into a formula

that inadequately reflects the complexity and variety of

the custody situations that they encounter, but it also

has raised criticisms concerning the lack of direction

provided and the potential for subjective biases to enter

into the decision-making process.

Professional Standards of Practice

Mental health experts are involved in custody cases in

various roles, such as mediators, examiners, and thera-

pists. The role of the examiner has been argued to be

exceedingly difficult and one fraught with dispropor-

tionately high rates of malpractice claims. In recogni-

tion of the importance and difficulty of the examiner’s

role, several organizations have published professional

guidelines to inform and direct the various participants

in the divorce and custody process. For example, the

American Psychological Association (APA) has pub-

lished guidelines for psychologists to apply in child

custody evaluations during divorce proceedings. These

guidelines are primarily an extension of the profes-

sional ethics code to custody matters. They delineate

the examiner’s responsibility in terms of disclosing the

forensic (rather than therapeutic) role to the participants

in the evaluation, representing the child regardless of

who engaged the examiner’s services, and using current

best practices when carrying out the evaluation.

The Association of Family and Conciliation Courts

has also published standards of practice for child cus-

tody evaluations. More extensive than the APA guide-

lines, this document recommends specific areas that the

examiner should evaluate. The American Academy of

Child and Adolescent Psychiatry has provided the most

detailed guidelines for both the process to be used and

the content to be addressed by the custody examiner.

The Process of Conducting

Child Custody Evaluations

Custody evaluations may involve a variety of data col-

lection techniques, including psychological testing,

interviews, and direct observation of the parties.

Procedures vary across jurisdictions and according to

the examiner’s preferences. Although examiners may

be retained by one party in the dispute, more com-

monly the court appoints a mental health professional

to develop an impartial evaluation of all parties. The

examiner frequently begins by gathering collateral

information about the history of the case, as well as

about the parent’s financial and employment history,

medical records, and school records.

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