Child psychiatrists may become involved in child custody disputes. When parents divorce and are unable to agree on custody of their children, they proceed to court to have a judge determine custody and visitation rights. Parents can become quite angry, and custody disputes often seem more like a battle than a court proceeding. Because of these dynamics, child psychiatrists are frequently loath to become involved in child custody disputes.
Psychiatrists become involved in custody disputes either as clinicians or as custody evaluators. For the psychiatrist, whose role it is to be therapeutic, becoming involved in custody disputes may present an anxiety-provoking situation. Whichever way the psychiatrist becomes involved, he or she should have an understanding of the legal landscape.
Child custody and the US legal system
In the United States, child custody disputes are resolved in family court. Throughout their history, courts have used varying criteria in the determination of custody. American courts initially based custody decisions on English common law. The courts usually awarded custody to the father on the basis of the father’s rights and the fact that he had the financial resources to raise the child.1 Indeed, in the 19th century, some courts determined that if custody was awarded to the mother, the father had no financial obligation to the child.1
During the 19th century and into the 20th century, the Tender Years Doctrine was adopted and courts assumed that it would be preferable for mothers to raise young children.1 In the early 20th century, decisions began to be based on the “best interest of the child” in determining custody. Courts initially presumed that it was in the best interest of the child for the child to remain with the mother.
Currently, family courts determine custody and visitation on the basis of the best interest of the child.2 In 1974, the American Bar Association approved the Uniform Marriage and Divorce Act, which has been adopted by Arizona, Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana, and Washington.3 The Act states that in determining custody on the basis of the best interest of the child, the court shall consider4:
• The wishes of the parent(s)
• The wishes of the child
• The interaction and interrelationship of the child with his parent(s)
• The child’s adjustment to his home, school, and community
• The mental and physical health of all individuals involved
In a custody dispute, the judge must decide legal custody (the care, control, and maintenance of a child) and physical custody (the right to have the child live with the person).5 Recognizing the importance of both parents, courts often strive for joint custody, in which both parents share the responsibility for and authority over the child.5 In this situation, the child lives part-time with each parent, and both parents have the authority to make decisions for their child (eg, medical treatment, education). This arrangement works well for many families, because it fosters the relationship of the child with each parent. In high-conflict divorces, however, this is often impossible because of ongoing conflict between the parents.
How the child psychiatrist becomes involved
The child psychiatrist may become involved in a child custody dispute either as a treating psychiatrist for a child/parent or as an expert witness/custody evaluator. In distinguishing these two roles, it is important to first have an understanding of the types of witnesses in court.
In federal court, an expert witness is defined as “a witness qualified as an expert by knowledge, skill, experience, training, or education.”6 Expert witnesses may offer opinions if their testimony is based on scientific facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. Courts allow expert testimony because judges and juries are not expected to have sufficient knowledge about all subject areas that come before the court.
A lay witness is a witness who does not testify as an expert. Lay witnesses typically only offer testimony about observations (ie, what they saw or heard) and do not offer opinion testimony. In federal court, opinion testimony is limited to opinions that are rationally based on the perception of the witness; that help clear misconceptions of the witness’s testimony or the determination of a fact; and that are not based on scientific, technical, or other specialized knowledge.7
The treating child psychiatrist
In child custody disputes, the treating psychiatrist may be subpoenaed to provide treatment records and/or to testify at a court hearing. Before discussing each of these scenarios, it is important to understand the concept of confidentiality.
Confidentiality is the physician’s obligation to maintain the privacy of the patient’s information. As a general rule, the physician’s duty is to maintain the confidentiality of the treatment, unless the patient agrees that the physician may release that information.
In recent years, the Health Insurance Portability and Accountability Act outlined the requirements for confidentiality of patient information.8 Scenarios in which a physician is permitted to share information without the patient’s consent include reporting of suspected child abuse and emergency situations in which the patient is a danger to himself or to others.
In child custody disputes, the attorney for either parent may issue a subpoena for a copy of treatment records. In this situation, the psychiatrist is presented with 2 conflicting duties:
• To maintain the confidentiality of the information
• To respond to the subpoena
Many clinicians believe that if they receive a subpoena for records, they are always obligated to release the records. This is not the case. If the patient or parent/legal guardian consents to the release of records and signs a release form, the psychiatrist would typically release that information. If this is not the case, the psychiatrist is typically bound by confidentiality not to release that information.
Problems may arise when one parent (who has legal custody of the child) wants the records released, while the other parent (who also has legal custody of the child) does not want the records released. In addition, there are circumstances in which a court order for records may override confidentiality. As a good rule of thumb, when you receive a subpoena for records, call your malpractice provider for legal advice on how to proceed—they are there to help you.
A child psychiatrist may also receive a subpoena to testify at a court hearing. The psychiatrist is again presented with the conflicting duties of maintaining confidentiality of the patient’s information and respond-ing to the subpoena. In this situation, it would also be wise for the child psychiatrist to contact his malpractice provider for advice on how to proceed.
If you, as a treating psychiatrist, testify in court, it is important to have a clear understanding of your role as a lay witness. You are there to testify to facts about the treatment of your patient (eg, dates of treatment, diagnosis, treatment plan, impressions formed during your treatment of the patient). Often, attorneys will try to blur the lines by using you as both a fact witness and an expert witness. Before testifying, I would advise obtaining legal advice from your malpractice insurer on how to respond to such questions.
Providing treatment records and/or testifying about the treatment of a child (or parent) may have detrimental effects on the treatment relationship. Before providing records or testifying in court, it is important to have a clear discussion with the parents about the potentially negative effect this could have on the treatment of their child.
The treating child psychiatrist should be cognizant of the issue of consent for treatment of the child. The psychiatrist should clarify who has legal guardianship of the child and is able to consent for medical/psychiatric treatment. When parents are separated and in the process of a custody dispute, often they both retain legal guardianship of the child. In this circumstance, the child psychiatrist should have consent from and involvement of both parents in the treatment of the child.
The child psychiatrist as expert witness
For the child psychiatrist interested in conducting custody evaluations, I strongly advise obtaining supervision from a colleague experienced in such matters. While the child psychiatrist will use clinical skills in conducting a custody evaluation, there are significant differences between a clinical evaluation and a custody evaluation.
The child psychiatrist who serves as a clinician has a very different role from one who serves as a custody evaluator. The role of the clinician is to evaluate and provide psychiatric treatment for the child and family. In contrast, the role of custody evaluator is to provide an objective, impartial evaluation in order to answer questions posed by the attorney and/or court. The custody evaluator does not provide treatment.
For several reasons, the child psychiatrist should never serve as both a treating clinician and a custody evaluator. Serving both roles would present a significant conflict of interest. Moreover, if the child psychiatrist is treating the child, he cannot be truly impartial and objective in conducting a custody evaluation. And, serving as both a clinician and a custody evaluator would undermine the treatment relationship with the child.
Because the laws regarding custody determination vary from state to state, it is important to be knowledgeable about the custody laws in your state. Before agreeing to serve as a custody evaluator, it is important to clarify:
• What questions you are being asked to address
• Who you are working for
• Who will be paying for your services
• That all parties agree to participate in the evaluation
Before becoming involved as an expert witness in a custody dispute, it is important to have a clear idea as to what is being asked of you. This may entail some discussion with the attorney or judge to clarify what he would like you to offer an opinion on. In custody disputes, the attorney/court is typically asking for you to offer opinions that will aid the judge in determining who will have custody and what will be the visitation ground rules. Decisions about custody/visitation are typically based on the best interest of the child.
The child custody evaluator is usually asked for his opinions on individual factors that would aid the court in making the custody and visitation determinations (ie, parental bond, discipline, child mental health, parental mental health, the ability of each parent to meet the needs of the child). Some courts ask the evaluator to only address these individual factors, while other courts ask the evaluator to arrive at an ultimate opinion of what is in the best interest of the child.
Before accepting a case, it is also important to clarify who you are working for and who is paying for your services. As opposed to clinical care, you will be working for the attorney or the court. Before initiating a custody evaluation, these issues should be spelled out clearly in a written agreement.
Another important factor before agreeing to accept a case is to be certain that all involved parties agree to participate in the evaluation. One cannot arrive at an adequately informed opinion without speaking with both of the parents and the child.
Preparing a custody evaluation
There are several components to a comprehensive child custody evaluation. These include interviewing family members, observing parent-child interactions, reviewing records, and speaking with collateral sources of information (eg, care providers, teachers).2,9,10
Interviews are an essential component of custody evaluations. Before conducting the interviews, it is important that the interviewees understand the purpose of the interviews and that the interviews are not confidential (you may use any of the information obtained to arrive at an opinion, write a report, and/or testify).
In interviews with parents, the evaluator typically inquires about personal history (development, education, medical, psychiatric, substance use, relationship, legal, finances), the history of the relationship with the other parent, each child’s history (medical, psychiatric, substance use, legal, development, education, temperament), and the parenting history of both parents (including caregiving, schedules, discipline, and any abuse). In the interview with the child, the psychiatrist conducts a clinical assessment and inquires about the child’s bond with each parent. Finally, the psychiatrist conducts joint sessions between each parent and the child to observe their interactions and bond.
In collecting collateral information, the evaluator interviews teachers, mental health providers, pediatricians, and extended family members, as well as any other significant persons. The evaluator may also request medical, education, legal, and employment records pertaining to the parties involved.
After conducting interviews, reviewing necessary records, and gathering collateral information, the psychiatrist typically prepares a detailed custody report that includes the purpose of the report, information reviewed, detailed history, assessments of the child/parents, and diagnoses. The report also addresses factors in determining custody (ie, the child’s bond to each parent, communication between parents, discipline, the ability of each parent to meet the child’s needs, and any history of abuse/neglect). The evaluator may offer an opinion, with a reasonable degree of medical certainty, as to the best interest of the child.
In addition to preparing a report, the custody evaluator is often required to testify at a hearing. After taking the stand, the psychiatrist first goes through a process of being qualified as an expert (voir dire)—the psychiatrist is questioned about his background and experience. Once the judge qualifies the child psychiatrist as an expert, attorneys for each parent question the psychiatrist about his evaluation and opinions.
Custody disputes often produce anxiety for all involved. Whether you are a treating child psychiatrist or custody evaluator, it is imperative to have a clear idea of your role. As a treating psychiatrist, do not hesitate to obtain legal advice from your malpractice insurer. As a custody evaluator, the work can be both challenging and rewarding, because your assessments and opinions often have a great impact on a child’s life.