A parents guide to custody and access family assessment

 Leonoff. A (1996) in Leonoff & Montague (1996)

Introduction;

The following is provided as an introduction and guide for separating or divorcing parents who are facing an assessment to determine custody and access provisions for their children.

An assessment involves a study of the family. These family studies are commonly requested by the legal representatives of the parents or by the Court to provide an impartial basis of evidence upon which to make these vital and sensitive decisions. The assessments are only conducted when Court ordered or when the mutual consent of both parents and their solicitors has been provided.

This assessor providing the evaluation is a mental health professional with special  under-graduate and post graduate training in relational family dynamics, personality and human development who lends his expertise to assist you in making these decisions with the least stress and trauma to your children and to yourselves.

If you are now in a position where an assessment has been ordered or recommended, it is very important that you are familiar with some of the basic principles and procedures that the assessor will use in evaluating yourself and other family members or significant others. Hopefully, with this overview, you will feel more comfortable with the process and more aware of what it can accomplish.

The Assessment and the Assessor:

Divorcing parents in conflict over the proper route for themselves and their children face many losses and disruptions. No loss is more feared however, than that of children. We all experience our children as part of ourselves and we may be concerned that the other parent may not appreciate how precious a bond they represent to us. In this burdened atmosphere, custody and access assessments may feel like the edge of a slippery slope. How will the assessor view the process and what should you, as a participant know in order to further the aims and progress of the evaluation?

The Assessor:

The assessor is trained to be therapeutic and he will try to be so in your case. Although the legal system works within a conflict model, mental health assessors do not. Rather, the assessor will look at what each parent can bring to the new family system, the strengths and weaknesses alongside special needs and capacities of the children, in order to propose a post separation arrangement that will best fit your children’s emotional and social requirements. This framework will include specific recommendations as to residence, legal responsibilities and contact schedules between the children and the parents. The Assessor will be interested in whom you are as people as well as the personality needs and attributes of your children. Having collected much information from the evaluation, the assessor will then harmonise and integrate what has been learned in order to tailor make a parenting formula that will be most relevant and useful not simply in the present but for the years to follow.

The assessor will look at strengthening bonds, avoiding further losses, healing emotional wounds and finding ways to avoid creating new ones. Of course the assessor is being asked to make judgements and this is unavoidable for the reality of the divorce conflict demand this. Yet, all the research tells us that it is chronic unresolved conflict between parents that is most harmful to children (not just now but across their lifespan and on into the next generation of your family) in divorce no matter what arrangement is in place. The assessor is most interested in helping you to prevent this.

The Atmosphere of dispute:

When a divorcing family is referred for a section 47 assessment and report, there has often been a great deal of prior conflict and negative feelings likely to have prevailed. Understandably, parents may feel misunderstood and even blamed by the other parent for what has happened to their relationship and they are anxious that the assessor understands their point of view and work with their concerns and worries. Because marital breakdown and divorce result in a very stressful time, it is natural for self – esteem to suffer and for people to be drawn into a fighting position.

Having solicitors and Barristers to represent you in this conflict and to provide access to the Courts is one way to help resolve disputes. Family assessments are another because they can get beyond the combat and look at the longer term interests of the children and parents. The atmosphere and aims of an assessment are best viewed as an objective study and not as a battle. It is important to remember that you will have many years to parent together long after these urgent matters are settled.

Best Interests of the Children:

During litigation, the Courts often ask the assessor to consider what custody and access provision will be in the best interests of the children. This determination is never easy to make and although it is made after much thought and study, it remains an opinion. The assessor is asked to assist your lawyers and the Courts but is not there to replace them. The assessor is not a Judge but his expertise in human behaviour should allow a special insight into what will likely work best for all concerned in the future.

Might the Assessor be Biased or Prejudiced against me?

It is the role of your legal team to represent and defend your legal rights and to effectively present your position. In this sense your lawyer is professionally “biased” and must be in order to protect you. Unlike your Solicitor, the assessor is not a Court officer but is rather a mental health advisor or consultant to the Court. In this sense the assessor must be accepted as a neutral health professional whose goal is to evaluate the family and its dynamics and arrive at an appropriate course of action which is set forth in a series of detailed recommendations. Conclusions arrived at by the assessor will be based on the assessors expertise.

Before the assessor is chosen to provide expert advice, your solicitor will have determined that the assessor is experienced, professionally competent and able to provide a useful assessment. Furthermore, your lawyers will have confidence that the assessor is a neutral professional who has neither reason nor desire to impose on your particular family situation any pre-determined conclusions. Like all professionals your assessor has his own ideals and aspirations and the thought of prejudicing a family based on prior judgements is contrary to this assessor’s ethics and standards.

On What Basis does the Assessor Decide upon Recommendations:

It is difficult to list all of the factors that are considered when such an assessment is done. Each family situation is unique and requires a special investigation of the merits and issues that divide the parents and impede a resolution. The following, however, are some of the important factors that are well described in the psychological literature:

  1. The relative strength and health of a relationship between each child and parent.
  2. The personality of the parents and what each can bring to the benefit of their children during the growing up process.
  3. The developmental stage and needs of each child both now and in the future.
  4. The extent to which each parent knows their child and can be sensitive to the child’s developmental needs while separating these needs from their own.
  5. The capacity of each parent to facilitate the children’s links to the other parent and to acknowledge the other’s parenting role in the lives of the children.
  6. The willingness and ability of each parent to cooperate and resolve issues concerning the children.
  7. The potential of each parents lifestyle to provide socially and emotionally for their children on a consistent and realistic basis.

Common Anxieties and Concerns during Custody Assessments:

Because these assessments are done at a time of conflict, disruption and uncertainty in the life of the parent, anxieties may run high, especially when one has to face the scrutiny of such an assessment. The following are the common concerns often raised or faced by parents during these assessments.

  1. Can I question the assessor and raise my concerns or will the assessor hold it against me?” – By all means tell the assessor otherwise, you may not feel confident to be open and facilitating and the assessment will suffer as a result. When you do speak of these concerns, it is up to the assessor to deal effectively with these concerns and to allay your anxieties. This assessor has received extensive training in Psychotherapy. He is very used to being questioned and views it as a natural part of any healthy relationship. It is vitally important that you are assured that the process is an objective and reasonable one.
  2. Should I discuss these concerns with my solicitor?” – Absolutely, for your solicitors role is to protect your rights even in relation to the assessment. It is very important that you discuss fears, doubts and criticism’s first with the assessor who is the proper person to address these matters. If the assessor fails to address your concerns then you have every right to request that your solicitor communicate with the assessor on your behalf. In almost all cases this will suffice to resolve your concerns so that the assessment can proceed normally to its conclusion.
  3. Why do I feel the assessor is not accepting what I am saying” – This is a very natural feeling and almost everybody seems to experience it, especially at the outset of an assessment. Naturally, you are anxious to be well received and to have your views acknowledged. Likewise, the assessor is motivated to know you as well as possible in the time available. Towards this end the assessor will ask questions and perhaps question you further on a certain issue. This probing may leave the impression that you are being disbelieved when, in fact, the assessor is simply trying to deepen his understanding and to know you better.
  4. Can I be open and honest or should I be strategic and on guard with what I do and don’t say?” – Naturally, parents want to put their best foot forward and not to tarnish their image in front of the assessor’s eyes. The assessor on the other hand can only do the best job if he can develop a rapport and a strong working alliance with each parent. It is in each parent’s best interest to be open especially, for the sake of the children. There is no better strategy then, than to be yourself in all your dimensions and not be concerned that this will condemn you in the assessor’s eyes. It is in fact the opposite. Parents who remain closed, defensive and overly guarded limit the evaluation from being as meaningful and healthy as it might be and are rarely satisfied with the result
  5. If I have personal problems or have needed therapeutic help in the past, will this be used against me?” – Having undergone psychotherapy, psychiatric treatment or help for addictions and other personal problems does not preclude any parent from having an important role in the life of their child. This assessor in his everyday practice, works with people with emotional and behavioural problems and knows this to be a common occurrence. Because of this assessors work and training he is highly respectful of people who seek mental health treatment. He is likely to view this as an asset rather than a liability. It takes definite courage and self-responsibility to face one’s problems and get to the bottom of what trouble’s us.
  6. Will the assessor morally Judge my past conduct and my decisions?” – None of us are absolutely free of moral judgements and neither are assessors. Yet, assessors are trained to go beyond these simple notions and to try to understand people in their depths. As it is his chosen work, he is very motivated to put forth recommendations that will further the health and adjustment of the family at this most difficult time. Alleviating tension is an assessor’s first responsibility as we know it is this factor that can lead to psychological symptoms in adults and children. Hence what the assessor does is totally opposite to Judging, blaming or accusing. This type of behaviour may however, occur between ex-spouses during divorce and participants may worry that the assessor will act in kind.
  7. Will the assessor ask my children with whom they would rather live?”

There is substantial research evidence to support the conclusion that children have a wish to love and be with both of their parents, and it is unnatural for them not to express such a desire. Many years after separation, children will still harbour wishes that their parents will someday reconcile and live together as one family. It would never be appropriate, therefore, for an examiner to place such an ill-suited choice on a child’s shoulders and such questions will not be asked. Yet, older children will sometimes take sides and act in very judgemental ways. They may want someone to take the blame for this harsh imposition on their lives. Occasionally, though, for reasons specific to a family, a child of sufficient age may offer some opinion as to the type of arrangement they desire. This may include the notion of living with one parent or the wish that the parents would share the time and responsibilities. Even when a child spontaneously expresses a preference however, the assessor will always explore the underlying reasons and dynamics behind this preference to determine its meaning and motivation.

  1. How should I explain the assessment to the children?”

Naturally, this will vary with age and maturity of the particular child. Generally, however, it is important to explain that the mother and father have asked this assessor to help decide where the children should live and how the family should function now that there is a separation. It is useful to explain that the assessor will be meeting with all concerned including them. Children are often most willing to participate in these evaluations and seem to weather the process quite well. This assessor is very sensitive to children’s fears of being placed in the middle between their parents. He will design the activities and questions to avoid unnecessary stress

Younger children may have tendencies to blame themselves for the marriage breakdown and it is worthwhile for both parents to reassure their children on several occasions that this is not so. Older children and adolescents may want to lay blame and side with one parent against the other. They are at an age where moral judgements are important and are often made in very concrete terms such as “all good” and “all bad”. Although it may be soothing in the short term to gain an alliance with a child especially when we are angry with the other parent, in the long run this will only further harm the young people in the family.

Parents should support each other’s legitimacy and encourage children to express their negative feelings of anger, betrayal or shame while not cutting off relationships.

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Brian O’Sullivan M.Sc. B.A Psych & Psych Testing, FTAI, ICP, PASG

Consultant Systemic Family Psychotherapist