Comprised of family law judges, lawyers, and psychologists, the Custody Committee of the American Bar Association’s Family Law Section is working hard to consider how to balance the weighty considerations on all sides of often difficult child custody issues.
By Chaim Steinberger, Family Law Attorney, Litigator, and Mediator
The American Bar Association (“ABA”) was founded more than 130 years ago to promote justice and advance the rule of law. Most of the ABA’s work is done by its 21 Sections, 7 Divisions, and 6 Forums. In turn, much of each Section’s work is done by Committees of each Section. The ABA’s Family Law Section (“FLS”) deals with the issues relating to family law, and the FLS’s Custody Committee considers and deals with the all-important issue of custody of children during and after divorce.
The Family Law Section, in addition to dealing with the obvious issues relating to almost every divorce like child custody, child and spousal support, and distribution of marital property, has individual committees that also deal with tangential and esoteric issues like adoption, assisted reproductive technology (“ART”), alternative dispute resolution (including mediation and Collaborative Law), domestic violence (“DV”) and children with special needs. Individual committees also focus on the interplay between divorce and other areas of law such as taxation, bankruptcy, and military and international law. The Section also provides advanced advocacy and mediation training through specialized institutes. In addition, its different committees focus on “practice management” (the business of practicing law), trial practice, and technology-in-law-firms issues.
Custody Committee: Helping Members to Protect Their Clients’ Children
For the past year, I was honored to chair the Custody Committee of the ABA FLS. Along with my vice-chair, Psonya Hackett of Memphis, TN, and several hundred lawyers, psychologists and others, we focused on helping our members help their clients protect their children. Obviously, being embroiled in a custody battle is usually traumatic for both the parent and the child. Nevertheless, it’s sometimes necessary to enter into battle to ensure the child’s present and future well-being and safety. We have, of course, heard our share of heartache and trouble.
As with almost every controversy, there is always another side to each story. Thus, in custody battles too, a competent lawyer must always pay attention to the weaknesses of the lawyer’s own case, and the strengths of the adversary’s. Balancing the competing “themes” of each party’s case – the other side of the see-saw as it were – becomes a critical skill. Preparing to counter and deal with the adversary’s strengths requires time, determination, perseverance, skill, and savvy.
As with individual cases, all legislative and other proposals also have competing interests that must be fairly balanced to do overall justice. For example, because we want judges to make correct decisions, we exclude “incompetent” or unreliable evidence. A party, however, can be frustrated when what seems like crucial evidence is excluded because it can’t be properly authenticated. Or when a judge can’t make a summary decision to quickly do what seems to be “obviously right” without affording the other party a full and fair opportunity to prepare and present competing evidence.
American Psychological Association’s 2010 Guidelines for Child Custody Evaluations
When we were asked to comment on the American Psychological Association’s (“APA”) 2010 Guidelines for Child Custody Evaluations, the FLS with the help of the Custody Committee carefully studied the existing APA guidelines and proposed six modifications:
- We proposed that the APA add “gate-keeping” (or parental alienation) to the list of issues that could trigger a psychological evaluation.
- We proposed that a child’s “developmental” needs be added to “the child’s educational, physical and psychological” ones that evaluators consider.
- We proposed that in addition to evaluators being actually free from unwarranted bias, that they take appropriate measures to “protect against” such influence as well.
- Critically, we suggested that the APA make clear that forensic evaluators employ “diverse, valid and reliable” methods of fact gathering, rather than relying on a single method or source, and that they not ever utilize unreliable methods that might introduce error into this important process.
- We proposed that evaluators be required to test all reasonable alternative hypothesis and show their work, so that evaluators not simply latch onto the first explanation they see and blithely accept it as true.
- Finally, we suggested that the APA require its psychologists to maintain all of their records so that any evidence that contradicts the evaluator’s conclusion is revealed to a party challenging the expert’s conclusion, and so that the cross-examiner has an opportunity to see all of the hypothesis that the evaluator considered and why the evaluator dismissed those that weren’t accepted as valid. We hope that this will stop the too frequent practice of an expert “deep six-ing” any facts that mitigate against the expert’s conclusion.
The Committee also produced a program on a relatively new issue that’s become critically important. The opioid-addiction crisis has unfortunately lulled way too many parents into abandoning their children for years on end. What happens when a parent returns after a several-year hiatus and reclaims custody of the child from the only parent-figure the child has known for the last several years? Most states’ laws are not equipped to deal with this issue. Most states will not accord any rights to even a long-term, non-parent caretaker in the face of a claim by a parent.
Fortunately, the Uniform Law Commission (“ULC”) – a commission comprised of judges, lawyers, and other professionals – has carefully studied this issue, balanced the rights of all of the parties, and crafted a considered proposal that balances the interests of the child, the returning parent, and the long-term caretaker. After several years of study, the ULC promulgated a Uniform Non-parent Custody and Visitation Act (“UNPCVA”). We were honored to have the chair and several members of the ULC Committee that drafted the UNPCVA present a program on it to our members. Our members are now at the forefront of advocating for the enactment of the UNPCVA in their respective states.
For our Fall meeting in Austin, Texas, the Committee is producing a program titled, “Litigating Custody on a Shoestring Budget.” Though many have said that that can’t be done fortunately, or unfortunately, we have several respected speakers who routinely represent low-income parents in custody cases in which hiring expert psychologists is just financially impossible. With the help of several psychologist-members of the Committee, our speakers are looking forward to sharing many tips and ideas that other divorce lawyers can employ to reduce the costs of custody battles for our clients.
Domestic Violence: the First and Most Important Factor in Child Custody Determinations
The Section was asked to comment on last year’s House and Senate Concurrent Resolution number 72, elevating domestic violence as the first and most important factor of all in custody determinations, the Committee emphasized that:
“…domestic violence is more nuanced than this Resolution implies. Domineering power and control can constitute “domestic violence” even in the absence of a physical attack. Conversely, not all physical or emotional violence are equal, and their effects on victims and witnessing family-members may vary significantly based on their frequency, intensity, and duration. Situational-, defensive- and resistance-violence should be treated differently than long-term aggression. The remedies and access to the children should be tailored to the particular situation of the individual family.”
We concluded that judges should be schooled in distinguishing between the various forms of DV so that they don’t adopt a “one size fits all” attitude about it, applying a hard and fast rule in all cases without considering whether the particular rule is appropriate for the case at hand.
The Committee also prepared a report to the Section on the proposed joint resolution of the ABA Commission on Youth at Risk and the ABA Center on Children and the Law, concerning children separated from their parents. As a result, the Section conveyed certain concerns and, after discussion, approved the resolution urging the taking of appropriate steps to place to identify and locate family members, and place children in the care of family whenever appropriate.
In addition, the Custody Committee has developed over 40 proposed Continuing Legal Education programs for lawyers. Most exciting is a proposed webinar of several respected psychologists on how to properly evaluate forensic evaluations and identify its weaknesses to ensure that courts have the right information in order to make correct determinations.
The Custody Committee, Family Law Section, and the ABA work tirelessly to promote justice and to continually improve our legal system so that our members, clients, and citizens receive the justice from a system carefully designed to be fair to all.
Chaim Steinberger is an attorney, litigator, and mediator in New York City, NY. He is the author of “Divorce Without Destruction,” “Make More Money by Being More Ethical,” and “Father? What Father? Parental Alienation and its Effects on Children.” www.theNewYorkDivorceLawyers.com