Framing Family Portraits for the New Paradigm:

The Modern Art of Parenting Plan Evaluations

Dear Forensic Expert:

I'm a lawyer for mom, dad, the child or another family member litigating child custody. Most likely you have come into this case at my suggestion. I may have negotiated a stipulation appointing you, asked the judge to appoint you, or retained you and asked the judge to require the other family members to be assessed by you. Think of me as a consumer of your product.

You are the painter of a family portrait. Your profession has developed traditional formats for forensic reports, and you probably find a familiar struc
ture comfortable. But those of use who view your portraits often find them con
fusing. We have to use them to help us make many complex, important, and highly emotionally laden decisions. Our choices will shape lives. We are unlikely just to accept your recommendations in their entirety. We want to understand what you thought was important, and why it was important. If we know that, we can form an intelligent judgment about whether to follow all or some of your suggestions. We can think of alternatives or adaptations that might serve the same purposes. We can learn something that can carry over to the next situation, or the next family. We can understand whether and when some aspect of your recommended plan should be changed in the future.

What if you organized reports around the components of a parenting plan? When parents disagree about how the responsibilities for raising children should be allocated, the task (in negotiation, mediation, evaluation, and litigation) is to issue an order setting forth the terms of a detailed parenting plan. Shouldn't the report's organization reflect that task?

I hope you'll also think of me as a collaborator in the quest to figure out what parenting plan will best meet this family's needs. My client's interest is, of course, to ensure that the children grow up whole and healthy. He or she may have some strong ideas about how to bring that about, but we've come to you to check out the validity of those ideas. While I'm an advocate for whatever decisions my client makes when I act outside the veil of attorney-client privilege, when I'm alone with my client I can be a powerful influence. My client is best served if I make sure you get access to all the important information, and if I ask you to think through the most important questions facing the family. Keep me in the loop.

I also have to make you aware of the complex legal consequences on down the line as a result of various parenting plans. For example, in California, every parenting plan influences such diverse issues as the ability of a parent to seek modification in years ahead, ability of a parent to seek employment, taxation, which health insurer provides primary coverage, the amount of support, the use of the family residence, liability for a child's torts, what state or country will have jurisdiction in the future, and which analytical framework courts must apply if one parent later wants to move. California's Supreme Court has strongly suggested that labels matter. Thus the same parenting schedule labeled "joint custody" could trigger completely different modification and move-away analysis that if it was labeled "primary parent," "residential and non-residential parent" or "custody" and "visitation." Your recommendations will have serious unintended consequences if you aren't alert to such issues.

When I began to practice family law in 1976, these cases were called custody battles, and the end result was a one time choice between the two parents. Over the past 20 years we have lived through a paradigm shift. While some people still use the old frame of reference, the leaders among mental health professionals, judges and lawyers see these cases as parenting plan disputes. The end result is a detailed allocation of parental responsibilities, and guidelines for behavior. The new paradigm1 requires that we frame our tasks very differently. While in my state, the Supreme Court is still applying the old paradigm to some families, trial courts and intermediate appellate courts have made the paradigm shift. They see a parenting plan as allocating dimensions of parental rights and responsibilities. They are coming to recognize the need for adaptation over time to reflect changes in the children's needs and the parental capacities to meet those needs, as well as external changes such as remarriage, new employment or school schedules, etc.

As an attorney for one of the parents, or the child, I see the report first. I must interpret this report to the ultimate decision makers in the case — the parents and the judge.

Families, lawyers, mediators and judges will use the report to craft a parenting plan. It will also help us better understand the family and use those insights in an attempt to change unproduc
tive or destructive attitudes and behaviors. It seems to me that if you kept those purposes in mind, your reports would look completely different. As the architects teach us, form follows function.

Evaluation reports are typically organized as they were under the fading paradigm. If the task of the court is to choose between two parents, reports which provide a psychological portrait of each parent and some incidental information about the child are most helpful. If the task of the court is to sort between competing pictures of truth in a battle of allegations and cross-allega
tions, then reports summarizing the data from various witnesses and records are most valu
able. Neither of those are the task under the emerging "parenting plan" paradigm. As we move from fighting custody battles to devel
oping parenting plans, it seems to me that you should feel compelled to discard your old for
mat. Doesn't it feel confining? Does it really let you explain what alternatives would be best for this family and why? If you did so, what other changes would flow from the new organization? Would your analytical process change? Would the kinds of data sought change? Would the understanding of the reader (parents, lawyers and judge) change?

Neither of the two traditional formats help me understand what weight you gave to each item of data reported. Neither format explains the significance of the data, or the connection between the data and the recom
mendations. I almost never see a report which compares and contrasts two or more possible solutions.

Negotiation theory teaches us that people are far more likely to abide by rules they help create. Parents are more likely to accept a parenting plan if they can have a hand in negotiating the terms. We come to you, not for a prescription, but for parame
ters. A report which ties the analysis to the terms of the parenting plan is a far better tool for negotiation, mediation and litigation.

The experience of being evaluated is terrifying. The stakes are enormous. No mat
ter how thorough, an evaluation is ultimately a reduction of a human being to a somewhat distorted cartoon. None of the lenses through which we assess families and their members can encompass the whole. A parent is hyper-aware of the fact that others, most significantly a former mate, will be pouring over each word, waiting to say "Aha!" Parents (and other consumers of evaluations) search frantically for an explanation of the outcome. Their guesses are often wildly off the mark. Most often, they simply reduce their analysis to gender. They may not like that explanation, but at least it is understandable.

I never let a client read a report alone. Rather, I schedule a debriefing session, with some follow-up conversation. However, there is a great deal to assimilate. The difficulty is exacerbated because the format of the report does not make explicit the links between the information reported and the recommendations made. As you write your report, take a moment to envision a parenting reading and discussing it with me in my office, the judge reading it the night before a hearing, and each lawyer deciding what to emphasize in negotiations and litigation.

For example, many reports summarize all allegations and concerns voiced by the parents, children and collateral witnesses. Typically, such reports include little analysis. Time after time I have seen a party, lawyer or judge assume that the evaluator found such an allegation both true and significant because it was included in the report. If there is an opportunity for inquiry, you usually say that you included that fact, not because it influenced the outcome, but so that the party would feel heard, and no one could complain that you failed to consider a particular fact or concern. Unfortunately, having a lawyer ask follow-up questions informally, by letter, by deposition or in court is a luxury that many families can't afford. Sometimes the court's timetable makes it impossible. Why can't the report tell us what data is important, what isn't and why? In addition to knowing what you considered, we need to know what weight you gave it, and what portion of your recommended parenting plan it affects.

When I've asked this question, evaluators tell me that judges complain about the length of reports, and that such analysis would add many pages. I'm not sure that's true. In fact, I'm pretty much convinced that if you presented the data, analysis and recommendations differently, your reports would be far clearer, and a bit shorter. I can't help wondering whether you would find, as you began to organize your report around the components of the parenting plan, that your methodology and analysis would evolve as well.

Also, remember that few of us who use your report are trained in your terms of art. Please don't use any technical language without definitions and explanations of signifi
cance to the issues in our case. I've picked up quite a bit along the way, but maybe my col
league or the judge has not. And do you re
ally trust me to explain to my client what "narcissistic personality disorder," "en
meshed," or "parentified child" means, much less what implications each has for decisions about the parenting plan? I'd bet you'd be more comfortable providing that information yourself. I promise, in turn, not to assume you know the intricacies of the Hague Convention. (I do expect, however, that you'll be familiar with all of the implications of our state's latest rulings on move-aways, for example. If you aren't, your report will be far less valuable, and could do unintentional harm.) Some eval
uators attach a glossary, which is extremely helpful. Others attach a list of the various tests and structured interviews they use, and a brief explanation of each. This is also very helpful.

Develop a relationship with a custody lawyer in which each of you consults with, and educates the other. In some communities, interdisciplinary study groups meet monthly. Take continuing education classes aimed at lawyers. Understand the principles of due process, and the procedures followed in this courthouse for custody cases.

In many cases, a parenting plan begins with some factual findings which provide a touchstone for determining if there are any significant changes in the future. Your report should help us think through which facts are important. For example, if the ages of the children or the distance between parental homes were important to your recommendations, please say so.

The components of a parenting plan are encompassed in a few categories:

Information exchange and communication between parents

Decision making authority

Timeshare schedule of daily caretaking responsibility

Holidays, vacations and special days

Logistics, transitions, etc.

Other provisions which contribute to the success of the plan

Mechanism for review and adaptation

I'd like your reports to be designed to help me think through each of those issues, not just incidentally include some recommendations about them at the end. If you knew that you would present the data and recommendations in this format, you might more closely scrutinize informa
tion to decide whether it, in fact, is relevant to these kind of decisions. Maybe there would be other information you would want to consider.

Introducing the Family: Who Are They and How Did They Get Here?

Such a report would begin with an introduction, orienting the reader to the history of the family and why an evaluation was sought. This is an opportunity for some storytelling to introduce the members of the family and their world. The introduction is particularly important for the judge, who may read your report before learning anything else about the case. Your introduction would also set forth information about the evaluation process. You usually already do this. I'd like to know when and for how long you met with each person, who else you spoke to, what you read, what testing you did, etc. Understanding how you got your information will help us understand your re
port. It will also help me gather and offer in
formation in the next case, and show me where time and effort was wasted. I'm hoping that we'll work together again.

If the evaluation was triggered by any "big" issues, such as allegations of a parent's severe mental illness, substance abuse, child abuse, ongoing or severe domestic violence, etc., I'd like you next to address those issues. This section should also address major con
cerns about a child, particularly if the child has special needs. Unique cultural characteristics of the family or some of its members might be explained here. Because these "big" questions bear on the totality of the plan, it would be very helpful to address them up front.

In discussing the "big" issues, tell us who raised the concern and what you did to check it out. Tell us what facts were important to you in reaching a conclusion about this issue and why. Tell us what concerns each parent voiced and whether you decided those concerns were well-
founded. If you are able to, give us a prognosis. Can we expect change? What would be necessary to bring this change about? What's the probability? What might increase the odds?

The remainder of the report should focus on each of the sections of the parenting plan. In each section you help us best by weaving in the data you relied upon with your analysis. Tell us where there are consistencies and inconsistencies in the data? Do the test profiles match your clinical impressions, for example? What did you observe in family interaction sessions which influenced your recommendations?

Information Exchange and Communication Between Parents

One of the central issues in any parenting plan is the extent to which parents can expect to either co-parent collaboratively or to parallel-parent peacefully. Too often, no matter high the level of conflict or how ill-
equipped one parent is to make decisions, you recommend joint legal custody. Tell us about tolerance, reactivity, impulse control, over
sensitivity to implied criticism. Will every phone call be an opportunity to push the other parent's buttons? Will a new mate be threat
ened by too much interaction between former mates or are the stepparents able to talk with one another and work things out that would send the parents into World War III? Will the kids spend their lives as diplomats or spies, navigating between two hostile worlds and developing a bitter, cynical, distrustful world view?

Tell us how involved each parent is in the children's lives. Who is likely to have ac
cess to school, medical and social informa
tion? How accurately does each parent inter
pret information and report it? How willing is each to assume responsibility for passing on information in a timely fashion. Do these households use cell phones, pagers, fax or E-
mail, which can greatly facilitate neutral, daily information exchange? Can they speak on the phone in a relaxed fashion or is every telephone call a major ordeal? Do they need a lot of communication ground rules? How much information does each parent want? How much will each need for his or her respective role?

Especially with infants, toddlers and very young children, can these parents accept information from one another about their baby's growth, development and changing routine without feeling condescended to, or dictated to? Can they keep a log which travels back and forth? Can an older child provide information about schedules and extra-curricular activities, or should this data still go from parent to parent?

Decision making Authority

Here the discussion should have two themes — the quality of each parent's decisions about the children, and their ability to work collaboratively. Don't recommend joint legal custody without any analysis of the ability of the parents to work together. Children's needs aren't served by impasses or power struggles. Not all parents are equally equipped to make good decisions about their children. There are many options for allocating legal custody rights and responsibili
ties. Give us the information we need to do a detailed plan.

First tell me how well each of the parents knows the children, and how accurately each parent can assess medical, educational and social needs. Does each parent see the chil
dren as separate beings, rather than an exten
sion of self? How age-appropriate are each parent's choices? How has decision making historically occurred? If one parent has domi
nated childrearing decisions, have those been good decisions? What kind of problem-solv
ing skills does each parent have? How reli
able and responsible is each parent? Can a particular parent be relied upon to see that checkups and vaccinations take place on schedule? Does either have a particular exper
tise which is beneficial to the children? Does either deny or minimize a child's special needs, or see a healthy child as frail or im
paired? How well does each parent work with care providers and their staffs? Does one of these parents change care providers at the drop of a hat?

Next I want to know how well the parents can work together? Are they competi
tive or complementary? What kind of negotia
tion skills does each have? Can they pick their issues, or must they each control every hair
cut and bedtime? Are their values and life
styles harmonious? Will one parent sabotage or undermine schools, doctors and therapists if the other parent selects them? Will a parent's resentment at exclusion create future battles? Do extended family or community members exert strong pressures?

The challenge is to allocate decision making responsibilities, so as to maximize each parent's positive involvement without creating impasses, fostering warfare, avoiding important decisions because they can't face each other or making bad decisions. The details will differ for each family. Which decisions must be joint, and which can each make alone? How much consulta
tion and collaboration should be required? How will enrichment activities be chosen? Should one parent have most of the control? Should one choose schools and the other choose doctors? Is one parent so uninvolved that joint legal authority would be cosmetic?

Timeshare Schedule of

Caretaking Responsibility

This is the core of most parenting plans. Does each parent have the ability to ensure that the children are healthy and safe? Does each parent know how much supervision a particular child needs and have good judgment about safety issues? Does each parent have sufficient coping skills to maintain a household? Does either parent pose a special physical or psychological risk so that parenting time must be monitored? Is one parent apt to move frequently, necessitating changes of school, friends, activities, doctors, tutors, therapists, child care providers and communities?

What is the nature of parent-child attachments? How healthy are they? What would be necessary to strengthen and maintain those attachments? What about sibling and stepparent relationships? Who are the important people in this child's life?

Tell me about the ability of each parent to promote the child's healthy growth and development. There are many dimensions of parenthood. Please discuss each parent's

nurturing and empathy

modeling and encouraging development of social skills

encouraging age-appropriate independence and individuation

intellectual stimulation

opportunities for developing motor skills and physical competence

When you make a recommendation, usually the particulars of the schedule matter less than the parameters. You don't care whether a midweek overnight occurs on Tuesdays or Wednes
days. You do care if it prevents a young child from having to manage a long separation from a parent, or if it keeps a parent in the loop of a child's school and social worlds. Does this child have a notion of time that is greater than "now" and "not now?" Tell us about each child's concept of time and ability to manage separations. Can this child handle a longer separation if accompanied by an older sibling? Will this parent burn out after a certain number of hours of coping with the kids?

Please discuss issues like the connection between the schedule, geography, and the child's ability to enjoy continuity in peer relationships and enrichment activities. Do these parents recognize the importance of this child learning social skills through peer relationships? Are they willing and able to extend themselves to ensure continuity of children's friendships and activities in each household? Do they encourage enrichment activities? Did a parent who chose a new home consider the issue of the impact on the child's daily life? If a parent lives a distance away, consider recommending that the parent travel to the child's community as well as the child traveling to the parent's community. Explain that this will help the parent feel connected to the child's school, friends and activities. Time with parents shouldn't be instead of time with peers. When parent and child spend time in the car, is that time used meaningfully?2

Please also address the question of whether the plan should provide for one on one time for each child with each parent. We tend to always treat the children as a group, depriving them of the individual attention they would get in an intact family. Consider the impact of each proposed plan on new siblings, stepparents and other family members. Families must consider the needs of all of their members, not just the child who is at issue in the proceeding.

If there is a chance that one parent will drop out of the child's life or be an inconsistent participant, anticipate the consequences of that. You can, for example, recommend that a parent who fails to maintain regular involvement with the child not be allowed to suddenly reappear and demand a scheduled vacation. An order can provide that if a parent fails to maintain the relation
ship with the child that the schedule be terminated until that parent reapplies to the court for a new parenting plan. I've seen parents turn up five to seven years later and be legally entitled immediately to alternate weekends or six weeks of a summer. Even if the child doesn't remember the parent, denying such access can be a criminal offense, if the order doesn't provide for some kind of sunset provision.

Include a chart which graphically demonstrates the schedule you propose, charted over a two or four week period. Highlight information about this plan such as percentage of time with each parent, number of transitions, preservation of continuity in weekly enrichment activities with one or both parents, school days missed, ability to buffer transitions with school or day care, etc.

Holidays, Vacations and Special Days

Here again each child's capacity to handle separation from either parent sets the stage for what is possible and is far more important than the specific details. Often once we know that information (and how you expect it to change as the children grow older) we can then structure a holiday schedule which responds to other needs and desires of the family.

How holidays and vacations are structured have a number of other implications as well. There is a great deal of emotion associated with holidays and parents are particularly sensitive to the absence of their children on such occasions. Resentments about holiday arrangements that have not been well thought through can tarnish the family's ability to accept the parenting plan as a whole. As adults, many of our strongest memories are of holidays and vacations – these are key moments. Holidays and vacations contribute greatly to our sense of family, and our knowledge of family history and traditions. Often entire families gather on such occasions and the absence of a beloved child or grandchild is painfully missed. Such gatherings strengthen the child's relationship with the family (or can shatter it if holidays are chaotic and conflict-ridden in a particular family). As new siblings are born in each household, one child's absence affects both the child herself and her younger siblings. Holidays also can have sacred significance, helping a child form a religious and cultural identity and introducing spiritual values into the child's life.

These events can also trigger highly emotional interactions between ex-spouses which can spoil the event for the child, particularly in the event of a mid-day exchange. How graceful are the interactions between the adults in each household.

Can (and should) the holidays, vacations and special days be structured so as to minimally disrupt the base plan? Should Mother's Day and Father's Day be just the day, or the entire weekend to facilitate travel, minimize transitions and let the child participate in some prepara
tions?

In allocating responsibility for the summer school vacation, please also discuss how the proposed plan affects such questions as summer school, summer day camp, summer sleepaway camp, parents vacation time, travel, continuity of peer relationships, etc. When making recom
mendations about birthdays, and special holidays like Halloween, it is helpful to make some very specific recommendations. These can include which parent will be responsible for organizing or contributing to a classroom celebration, which parent will be responsible for organizing the party to which classmates and friends are invited and how invitation lists can be exchanged. Is it important for this child to have actual contact with each parent on a birthday (perhaps dinner or brunch with one and the balance of the day with the other) or will it suffice for each to celebrate the birthday on the weekend preceding or following it?

Logistics, Transitions, Etc.

Small details have great impact in this area. Make very specific recommendations and share the data and reasoning behind them. Should all transitions be buffered by school or day care? Should one parent be ordered to stay away from school or day care at the time scheduled for the other parent to arrive at the beginning or end of the school day? Should all exchanges take place in a public place (if so, please explain the emotional connotations of police station exchanges and suggest an alter
native if at all possible). Should the parents meet at a halfway point? If so, that point should be open at the hours of exchanges, have a place to play if the receiving parent is delayed, be well lit, and sheltered from weather. Fast food restaurants with play facil
ities often are a great choice, as are libraries, museums etc. I usually suggest that the par
ent receiving the child be responsible for transportation because, in the event of delay, the children are comfortable in one setting rather than waiting in the car on the curb outside an empty home.

Reminders about how to handle such situations can also be valuable. You may want to recommend some specific orders such as:

1.	Greeting the other parent politely.

2.	Who may be present.

3.	Limiting conversation to pleasantries and reserving all adult information exchanges, requests and recriminations to settings where the children are not present.

4.	How long a parent must wait before the exchange is forfeited (until the next day or the next scheduled transition?)?

5.	Exchanging logbooks or other items.

6.	Transitional objects.

7.	Movement of toys, clothing, bikes, pets or other items between households.

8.	Safety concerns such as car seats, seat belts, safe transportation. Parents who have histories of accidents, alcohol use or drug use might be required to have a valid driver's license before transporting children. Should a parent with a history of alcohol abuse have to go the police or highway patrol for a breath or blood test upon the other parent's request?

Address the psychological ramifications of dropping children off at the curb as compared to escorting them to the door. Should either parent be permitted to enter the other's home? Explain what behavior is typical of children at such transitions and how parents might respond most supportively.

If you recommend that a parent's time with the children be monitored, please tell us what risks concern you and how the monitor can best protect against those risks. Is the monitor to protect the child from some specific kind of conduct or hazard? Is the monitor to protect a parent against false allegations? Who should, and should not be, a monitor? Can a particular friend or family member recognize danger to the child and be willing to compromise their relationship with the parent to protect the child? What kind of loyalty struggles within the family would be set into play by the use of a nonprofessional monitor? On the other hand, would grandma's presence be more natural and comfortable than a professional monitor? What responsibility does the monitor have to share information with each parent? Is the monitor intended for safety purposes or is he or she serving a dual role as a parenting coach? Can the monitor set limits on activities or destina
tions?

What message will the child infer from the presence of a monitor? How should the monitor be explained to the child? Must the monitor be continuously in earshot and sight? Does the monitor have the power to terminate a visit, and, if so, under what circumstances. Under what circumstances should the monitoring order be withdrawn or reviewed?

In cases of alienation or reintroduction of an absent parent, should the first contacts take place in a therapist's office? Should there be a staged reintroduction with gradual increases in time spent together?

If long distance travel is involved, please think through all of the details. What information must the distant parent share with the primary residence parent prior to and during the trip? Must childcare arrangements, extended stays with relatives or friends, day camp enrollment or other plans be mutually agreed upon? Must the absent parent provide name, address and telephone number? Is the child old enough to fly alone (developmentally and per airline policy}? Is the child comfortable flying alone or must an adult accompany him? Should travel be scheduled only for certain times of day or to ensure arrival back a certain number of days before school resumes or a certain number of hours before bedtime?

Other Provisions Which Contribute to the Success of the Plan

What else will be essential or helpful to the success of this parenting plan? What recom
mendations to you make about phone access (and why?). Is there a need for counseling or parenting classes for one or both parents? If so, please make sure you are familiar with local laws concerning the Court's power to order such therapy. Set forth the goals of the recommendation, the duration of the program, the skills and expertise required of the therapist, etc. Make very concrete recommendations concerning the role of the therapist in reporting, or not reporting to the court. Include a mechanism by which the parent attending must provide proof of attendance.

Appointment of a child's therapist also requires a detailed discussion. What is the purpose of such therapy? Is there a particular modality that would be preferable? How fre
quent should the sessions be? How long (ei
ther in terms of time or achievement of spe
cific goals) should the treatment continue. Explain how important it is for the therapist to establish and maintain relationships with both parents. To ensure this, provide that informa
tion should be disclosed to both, that they should take turns bringing the children to ther
apy, and that the parents, stepparents and siblings should or should not participate at the invitation of the therapist. I usually draft or
ders which prevent the therapist from filing declarations with the court or making recom
mendations to the court concerning the parenting plan. Those orders specifically provide that the therapist may share information, impressions and observations with any court- appointed custody evaluator.

Be specific about the role of the mental health professional. Are you suggesting individual psychotherapy, joint sessions to learn communication-negotiation-decision making skills, treatment for the child, mediation or appointment of a Parenting Plan Coordinator (special master who arbitrates ongoing disputes).

Don't hesitate to make some specific referrals. If there are existing mental health professionals working with the family explain why those relationships should be preserved or why the family might be better served by a fresh start or a new approach? Is the professional perceived by one parent as aligned with the other? Does the professional have enough expertise in the specific issues of the case? If community mental health agencies are to be used, provide informa
tion about access, availability, expertise and costs.

Is this parenting plan based upon any assumptions that the distance between parental homes will not increase. Figure out what the greatest distance of separation which would be possible without making the plan infeasible, and recommend geographic limitations. Please discuss, in considerable detail, what impact greater distances will have on the child's life and relationships.

Mechanism for Review and Adaptation

Few parenting plans should be set in stone. As families change, children mature and life proceeds, what should trigger a review of this plan? Are you recommending any automatic future changes? Will a review evaluation be required? Should there be on-going mediation or a Parenting Plan Coordinator? Are there behavioral goals (for parent or child) upon which either continuation of this plan or a built-in modification depend?

If you have told us what facts were important for each of the issues above, you will have given us a road map for what changes might trigger a modification.

Be Mindful of Multiple Audiences

Your report is likely to be reviewed by parents and stepparents, lawyers, consultants, mediators, and the judge. Each audience has differing degrees of background, insight, understand
ing of the implications of certain statements, etc. For the most part, you should assume virtually no psychological knowledge on the part of your readers and explain everything extremely clearly. Even if you believe that the report was commissioned by a particular judicial officer, the case may be reassigned before a hearing.

Consider the impact of the report on each audience. If the report is perceived as too harsh or critical, a parent may feel compelled to fight for his or her good name and self respect. Such a report will not serve a therapeutic purpose or promote settlement. Rather, the parent will feel driven to discredit you, and will give no credence to the report. If, on the other hand, the report is written in a more gentle fashion. the lawyers and judges may underestimate the seriousness of the concerns you identify.

The best path is to be clear, honest and respectful. Acknowledge directly each parents' strengths and limitations. A parent who feels appreciated by you will be more likely to consider whether your criticisms and suggestions have merit. Explain the probable consequences for the children of particular actions, behaviors or court orders.

Understand that, although you may choose to de-emphasize statements made to you by the children, or collateral sources, that you must disclose those statements if your records are re
quested, you testify in court or your deposition is taken. Don't promise secrecy, because the parents are entitled to understand all of the facts upon which such an important decision was based. You wouldn't want any backdoor information to influence a decision which shaped the entire future of your family. You'd want an opportunity to comment upon or interpret such information.

Give some specific directives about limiting access to copies of the report. Parents should have unlimited access to the reports in their attorneys', therapists', and consulting mental health professionals' offices. They should be specifically restrained from providing access to the report to persons other than those professionals (and, perhaps, stepparents or other adults centrally in
volved).

Also give some specific direction about what the children should be told (or permitted to overhear) about your report, analysis and recommendations. Explain the consequences for the children if those recommendations are ignored.

If you have specific concerns, flag them for counsel, families and the court. Explain to the lawyers the importance of a debriefing session, and interpretation of the report by the lawyer and/or a mental health professional. Some years ago, I brought a mother into my office to read a report. That evening she was admitted to an emergency ward after a suicide attempt. A few days later, the teenager had run away, anticipating implementation of the report's recommendations for a residential treatment program. Think through how to balance safety concerns with the parents' right to know the information in the evaluation and to prepare to address those issues in negotia
tion, mediation and litigation. The report will be of no benefit to anyone if it triggers suicide, violence, a runaway or an abduction.

Conclusion

Forensic child custody evaluations are commissioned because the parties, counsel, mediator, and/or the Court want assistance in developing a parenting plan. Many lawyers do not devote a substantial amount of their prac
tice to child custody issues, and lack psycho
logical sophistication. Depending upon the jurisdiction, the judge might never have prac
ticed family law at all, and may know nothing about child development. The parents, no matter how sophisticated, are subject to dis
tortion of their understanding because of their own ego needs and passionate belief in the justice of their respective viewpoints. If the evaluation report explicitly ties each item of data, and each analysis to the concrete recom
mendations, there is far less risk of misunder
standing. Moreover, changes in circumstance or requests to vary particulars of the order from specific recommendations can be assessed within the framework of the data and analysis you have developed.

Your evaluation will also be far more useful if you discuss the strengths and risks associated with each of the requests made by the parents, and with some of the other alternatives you considered. Often judges will substitute their own pet provisions for yours. Anticipate the need for all of the participants (parents, lawyers and judge) to participate in crafting the final order. Give them clear explanations of the kind of balancing you did in deciding what to recom
mend. They may not agree with you, but at least a variant result will not be based on ignorance or failure to recognize implications and potential consequences. Use the report as an opportunity to educate the family, the lawyers, and the judge. The insights they gain from you will benefit this family in other situations and will carry over to other cases that don't get evaluated.

Finally, it is critical to understand the current calendar practices of your local court. You have no doubt spent between three and twelve months studying the family. if you did
n't observe them over more than a brief period of time, you may not be able to distinguish what is typical or characterological from what is situational. If you have taken a large period of time to complete the report, some changes may have become impractical because the children have become well settled in their new home, school or community. At this point the delay itself forces you to balance the benefits of the other arrangement with the costs of lost continuity.

Please recommend that the parents and their counsel be given at least two weeks to assimilate and analyze the report before being expected to negotiate, mediate or litigate. Even for a party "favored" by the recommen
dations, reading the report is traumatic. If you were acting as a therapist, you'd hope the parent gained insight over time and would not expect instant enlightenment and acceptance. Few of us have sufficient self-knowledge to fully anticipate and accept how we may be seen when dissected in this fashion. There is no substitute for enough time to read the report, discuss it, reflect on it, read it again, consult other professionals and ask questions. Parents, having come this far, should not be rushed into the decision making process. If they are, too many cases will go to trial. The lawyers and judge may not fully appreciate how important this time is. Add a stock paragraph to your wordprocessor.

Delay is equally troubling. Many reports are partially, or entirely obsolete because of delay between the time of assessment and time of hearing. Don't assume that the court will automati
cally do something to prevent this. Many Family Court judges have little special training or experience. In some jurisdictions, judges hear many types of cases. In others, they rotate in and out of the Family Court assignment. Court resources are not allocated to Family Law Depart
ments in proportion to the number, complexity or importance of the matters they consider. Even if a hearing date has been set, don't assume that it won't be rescheduled. Caseloads are extraordi
narily heavy and hearing time is precious and rationed out as family law filings increase, the issues become more complex and new courtrooms are not assigned. If there is urgency to the implemen
tation of your recommendations, state this firmly, clearly, and with reasons on the first page of the report. This gives the lawyers a chance to ask a court to specially set a hearing or make emer
gency interim orders. If you don't find any urgent need for new orders to be implemented, recommend that a few weeks before the hearing is conducted, you have a chance to update your report. Sometimes only phone calls to the parents will be required. Other times, more investiga
tion will be necessary. The more specific you are about what is needed, the more likely it is to be provided.

Thanks for considering these suggestions. I hope you'll take the challenge and try restructuring your reports in the ways I envision. I look forward to working with you to assist families, and explore what would be best for children and their families.

Sincerely,

Leslie Ellen Shear

This paper originally appeared in Children, Divorce and Custody: Lawyers and Psychologists Working Together (A Continuing Education Conference by the American Bar Association Section of Family Law and the American Psychological Association), April 17-20, 1997, Los Angeles