ch 6: family law and other forms of civil litigation

Zibbell and Fuhrmann (2016) guidelines and professional requirements:

"child custody evaluators require specialized skills in interviewing adults and children, and understanding of child/adolescent development and family dynamics, current knowledge of research in areas relevant to the questions asked by the court, and familiarity with the relevant family law statutes and cases in the jurisdiction in which they practice."

termination of parental rights

(rare) court finds parent/s not fit to care for kids-abandonment, serious substance abuse, severe child abuse, etc.

legal parental authority

Decisions regarding kid's long-term welfare, education, medical care, and religious upbringing. - matters significantly affecting their life.

family courts

Family law, divorce, child custody and support, visitation rights, relocation, domestic violence, etc.

the ultimate issue question

Should examiners make recs as to which parent should be given custody of the child or as to whether parental rights should be terminated?

joint custody

both parents share legal/physical authority, but kids mosstly with 1 parent who will have physical authority to make day-to-day decisions (more time with 1 parent than other)

developments in family structures are not bad because...

children benefit from having extended family members involved in their care, and the children of LGBT parents are hust as healthy as children of heterosexual parents -more important about good care than who raised them

people seek redress with:

civil right claim a claim of a creak of contract intellectual property claim (patent case) a prisoner case a labor case (unfair labor practices)

employment compensation claims

claims regarding physical injuries, psychological damage, or emotional distress sustained as a result of employment -employers are required to insure their workers against injury while on the job

a decision as to who should have custody of the child or children must be demonstrated at least by

clear and convincing evidence that parents are unfit to care for the child or children

physical parental authority

decisions affecting only the child's daily activities -can they stay overnight at a friend's house, play baseball/softball, have access to parent's car

courts also consider alleged wrongs on such matters as:

defamation invasion of privacy toxic harm personal injury

fostering attachment

developing interactive attachment between parent and child on ongoing basis

what are key factors that require careful scrutiny in the relocation evaluation?

developmental age of the child distance proposed to move extent of noncustodial parent's involvement in the child's daily activities nature of the parent's conflict that resulted in a divorce

the most contentious areas faced by family courts are those involving ...

divorce and child custody, most particularly when custody is contested

in ____________________ situations, family court may be the place where a victim seeks a temporary or permanent restraining order against an abuser.

domestic violence

divided custody

each parent is granted legal and physical parental authority on a rotating basis (equal time with both parents)

we must be careful to not

equate family forensic psychologists with family psychologists

visitation risk assessments

evaluations on whether/how often kids should be allowed to visit noncustodial parents or others

family FP can give judges and attorneys context on how families have changed:

ex. more children live with relatives, instead of their parents ex. increase in unmarried parents, and LGBT parents ex. many teens live with people they aren't even related to

traumatic brain injury(TBIs)

ex: those suffered in motor vehicle accidents and concussions in sports-related event

S.M. Lee and Nachlis (2011) roles played by psychologists and other MHPs in family courts

expert witness evaluator coach review expert consultant mediator

in most cases, the plaintiff pursues some form of _____________________ for alleged harm suffered.

financial compensation (compensatory/punitive)

in a majority of cases, the FP focuses the evaluations on the type and extent of ____________ suffered by the plaintiff

functional impairment

consistency as well as flexibility

good parents achieve balance between the two

How many marriages end in divorce?

half of all first marriages within 15 years (decreased slowly to 40%)

probate courts (aka surrogate courts)

handle wills, decedents' estates, trusts, conservatorships, and guardianships

FPs and legal professionals are beginning to recognize the value of ____________ in the decision-making process that directly affects their own lives and welfare.

having children participate

mediator

help clients manage emotions; negotiate settlements to avoid trial

why can family courts be dangerous places?

high emotions lead to verbal clashes and minor physical altercations; may be high conflict between parents and sometimes between attorneys

second marriages have ____________ rates of separation or divorce than first marriages

higher

family psychologists have extensive knowledge about

human development and systems theories -what works for kids may not work for teens

how do states vary widely on parental relocation matters?

in some states, there is a presumptive right to relocate in others, the parent must prove the move is in the best interests of the child

consultant

inform attorneys about research relevant to case; assist in trial strategy; develop Qs for expert witness

types of relief sought by plaintiffs

injunction specific performance requirement monetary compensation

Eve, Byrne, and Gagliardi's (2014) 6 broad categories of defining good parenting

insight willingness and ability day-to-day vs long-term needs putting the child's needs before one's own fostering attachment consistency as well as flexibility

compensatory damages

intended to make up for the harm suffered (make things whole/equal)

CCE also includes:

interviews with children and parents parent-child observations review of info from collateral sources (school records/teachers/nannies/criminal court records) be clear of limits of psychological testing make recs of who should get custody

approximation rule

judge looks at amount of caretaking done by each parent before making a decision on custody -encourages the court to make a decision which most closely approximates past involvement -may seem sensible, but does not take into consideration a child's changing developmental needs

tender years doctrine

legal assumption-traditional belief that mother is parent best suited to care for kids of a "tender age" *primary legal standard introduced over a century ago *given way to the BIC standard

two fundamental categories of parental/caregiver's decision-making authority"

legal parental authority physical parental authority

tort

legal term for a civil wrong; plaintiff alleges some negligence on part of respondent

modern family courts (aka domestic courts)

litigating divorce proceedings and making custody decisions (also may occur in courts of general jurisdiction)

what has reduced much of the standardized testing relied on in the past to localize the brain damage

modern tech such as magnetic resonance imaging (MRI), functional MRI (fMRI), positron tomography (PET), computerized tomography (CT), and diffusion tensor imaging

sole custody

most common 1 parent has both legal/physical authority and other parent does not -noncustodial parent usually retains visitation rights

willingness and ability

motivation/skills to provide adequately for basic needs of a child (physical and emotional)

when it comes to identifying ______________________, standardized neuropsychological tests are usually heavily utilized

neurocognitive processes or ability

grandparent's rights

no constitutional right to see grandchild over objection of competent mother -statutes in many states-grandparents should not completely be barred from grandchildren, except under rare circumstances (abuse)

coach

offer support (NOT THERAPY) to parents, kids in custody hearings; education about court process

best interest of the child (BIC) standard

parent's legal rights should be secondary to what is best for child *dominant custody standard in all states and the District of Columbia *does not presume that either parent is naturally better than the other *been criticized for being too vague and too likely to lend itself to subjectivity on the part of the decision maker

plaintiff

person filing lawsuit -subject to being eval'd not only by a clinician contacted by their lawyer, but also by a clinician hired by the defendant

respondent

person/org alleged to have caused harm

injunction

plaintiff desires ongoing harmful behavior to stop

specific performance requirement request

plaintiff wants respondent to do something they are supposed to or required to do -ex: reasonable accommodation in the workplace for a person with a documented disability

friendly-parent rule

preference given to parent most likely to nurture child's relationship with other parent, provided they are not abusive -presumes it is best for child to remain in touch with both parents

custodial parents usually have good reasons for wanting to relocate, but there is always the possibility that they seek to do so in order to:

punish the other parent

the American Psychological Association "Guidelines for Child Custody Evaluations in Family Law Proceedings" strongly emphasize that psychologists should

remain familiar with specific laws and court rulings governing the practice and nature of child custody adjudication withing the locality where they administer the eval

family courts have the power to ___________________ from their homes and place them into temporary custody of the state, such as in foster homes, as well as the power to revoke parental rights permanently

remove neglected and abused children

a state agency, such as child protective or child welfare agency, may

request a temporary or permanent custody determination when it believes the parents have been abusive or neglectful *more heavy-handed *more likely to remove minority kids

review expert

review/appraise work of other MHPs; give opinions about data/research cited

putting the child's needs before one's own

sacrifice personal needs for overall welfare of child

consistency

setting healthy limits and boundaries for the child on consistent basis

anxiety and depression are often brought up in court to

smear the other parent

family psychologists

some provide services to legal system, most do not -give counseling/treatment to families, often during times of crisis

neuropsychology

study of psychological effects of brain/neurological damage/dysfunction of human beh

Sample Factors Considered in Relocation Decision

table 6.3

expert witness

testify about assessments, research on relevant issues

proving harm

that something bad-some identifiable injury-must have happened to the plaintiff

proving breach

that the defendant failed to meet that responsibility

proving duty

that the defendant has an affirmative responsibility to do something or not to do something

proving causality

that the defendant's wrongful behavior was the source of the injury

Melton et al (2018) emphasizes

the complex nature of this issue, and they note that psychologists should not provide an ultimate opinion on whether rights should be terminated *also warns that psychs should not determine whether abuse or neglect actually occurred

in June 2003, the Journal of Family Psychology published a special issue devoted to

the intersection of family psych and family law; since that time, family practice in forensic psych has increased dramatically

a custodial parent can challenge or request a change in the visitation rights of the noncustodial parent under the premise that ...

the noncustodial parent is emotionally or physically damaging the child-or presents a strong risk of inflicting such harm

insight

understanding one's role as a parent -what does a parent do?

functional impairment

what people can/cant do in basic daily home and employment requirements -affects the plaintiff's quality of life, and also prevents the plaintiff from performing the job that was held prior to the damage

day-to-day vs long-term needs

whether the parent tries daily to meet the child's physical, emotional and cognitive needs -must also support and encourage the child to become an independent person in the long term

termination of parental rights most typically follows ...

a period of time when the child has been in foster care

flexibility

ability of the parent to adapt to the changing developmental needs of a child

family forensic psych can make contributions in all the following areas:

adoption divorce, child custody and visitation conflict resolution and mediation juvenile justice assessment of parental fitness termination of parental rights elder law and estate planning child-parent relationships when parents are imprisoned guardianship reproductive rights and technologies family violence

__________________ are finalized in family or probate courts

adoptions contested wills decisions about competency to make medical decisions involuntary commitments to mental institutions

parental relocation

an increasingly frequent topic for family courts, in which they are asked to make a decision as to whether the custodial parent should be allowed to relocate the child to a geographical area away from the non-custodial parent

forensic neuropsychology

application of info from neuropsychological profession to legal matters

Least detrimental alternative standard

arrangement that would cause kid least amount of harm *custody eval would be more efficient at "screening out" the custody arrangement that would create problems for the child rather than making a determination that one parent would be better than the other

evaluator

assess people-interviews, tests, observations, etc.

punitive damages

assessed when the harm done is so grave that the judge/jury believes the defendant should receive extra punishment -main goal is to deter the defendant from further harmful action and to discourage others from committing similar harmful acts in the future (intended to punish)

covenant marriage

available in Louisiana 1997-LA legislature passed the nation's 1st law in an attempt to lower divorce rates -marriage entered into by one male and one female who understand and agree that marriage between them is a lifelong relationship *MUST BE CHOSEN *more loop holes to get a divorce

very young children may appear not to be negatively affected by the move, but as they grow older, they may be confused as to why it occurred and, depending upon their relationship with the custodial parent, may strongly resent that it happened.:

-8-12 years: better adjustments to move; better equipped to maintain long-distance relationship with other parent, understand dynamics -teens often strongly resist move: strong ties to school, peers, athletic teams, clubs

with a covenant marriage, the couple legally agrees to seek marital counseling if problems develop during the marriage; and legally bind themselves to only seek a divorce for the following:

-adultery by the other spouse -commission of a felony by the other spouse and sentence of imprisonment at hard labor or death -abandonment by the other spouse for one year -physical or sexual abuse of the spouse or of a child of either spouse -the spouses have lived separate and apart for 2 years -the spouses are judicially/legally separated and have lived separate apart since the legal separation for (a) 1 year 6 months if there is a minor child/children of the marriage; (b) 1 year if the separation was granted for abuse of a child of either spouse; or (c) 1 year in all other cases

emotional problems or mental disorders IN PARENTS to be considered in child custody evaluations:

-anxiety -depression -bipolar disorder -borderline personality disorder -narcissistic personality disorder -antisocial personality disorder -problems with alcohol use

a plaintiff must prove four elements:

-duty -breach -harm -causality

methods of evaluation in child custody cases

-frequently vague and open-ended -psychs use variety of psychological inventories, interview questionnaires, and tests to evaluate parents, guardians, and children -Eve, Byrne, and Gagliardi's 6 broad categories of defining good parenting

why are divorces relatively easy to obtain today compared to before?

-in the past, grounds for divorce centered primarily on one party being at fault (adultery/physical or mental cruelty/desertion) or incapable to perform marital duties (imprisoned) -today, both parties typically agree that their diffs are irreconcilable, and divorces are granted with no fault placed on one or the other

in most civil cases, FPs retained by attorneys would be expected to evaluate:

-whether the plaintiff was harmed by the defendant -if the plaintiff was harmed, the type and degree of harm the plaintiff suffered

split custody

1 or more kids go with 1 parent, other kids go to 2nd parent -most likely when kids are far apart in ages

custody arrangements tend to fall into one of four patterns:

1. sole custody 2. divided custody 3. split custody 4. joint custody

state laws require that custody be determined for all dependent children under age

18 *although it is estimated that children are involved in about 40% of divorces, the majority of these do not require a judge to make the custody decision

custody decisions also may be needed when the parents are not married:

2/5 of births in the US are to unmarried mothers -children born to unmarried parents have a greater risk of parental separation

in 2009, __________ of custodial parents were mothers with sole custody

82%

parenting evaluation/assessment of parenting plans (aka child custody evaluations) CCEs

assessments made by MHPs to help judges make decisions in disputed custody situations