Child Custody Disputes – Ideals and Realities

Ludwig.F. Lowenstein Ph.D

Southern England Psychological Services


There has been an increase in child custody disputes over the years at least to a large extent due to the increase in marital problems, divorce and separation. Many couples now with marital or relationship disputes are not even married, but the results of breaking up the family where children are involved are the same as if the couple were actually married in the first place. What follows will be general comments, not applicable in all cases as there are many other factors that come in to play, on points which are involved in making decisions on marital custody-type cases where children are involved.

Prior to the 1900’s children were considered the property of the father and automatically reverted to him. After the industrial revolution the mother’s role was seen as being the most important in caring for the children, especially young children. In the late 1960’s to early 1970’s decisions made depended on what were “the best interest standard”.

Psychologists became increasingly involved in helping to make decisions which took into account the interests of the child and the care they would receive from one or both parents. Certain guidelines were considered as essential although they did not apply in all cases, and in fact other aspects need to be considered from time to time.

Factors important in guiding towards appropriate custody resolutions

  1. Of most prominent concern are the rights and welfare of the child. There are however, problems here from time to time since children may wish to be with one parent, for various reasons including being the subject of parental alienation syndrome (PAS). This is more fully discussed in other articles by the author.
  2. The wishes of the parents are also considered but they may diverge, and one parent will attempt to have greater interest, or wish for control, over the custody of a child or children. It is for the psychologist and others to assess which is best for the child primarily, but also for the parents whenever possible.
  3. Of primary importance in making decisions are the mental and physical health of the parents and in the way they live and conduct themselves vis a vis the child or children.
  4. Other factors are also important including whether either party is an extreme substance abuser, or practices sexual or emotional or physical abuse.

Appropriate guidelines for psychologists and psychiatrists

There are still many problems associated with helping to make a decision in relation to parental disputes over children. Many psychologists make decisions without having seen or evaluated all the people involved in the dispute i.e. psychologists will often miss either mother or father or children. To make a most appropriate solution all of them must be assessed and decisions made on the basis of this assessment.

The adversarial system has frequently prevented an assessor , psychologist, psychiatrist, to see all parties involved in order to make such a decision. With a change in the ruling due to the Woolf Report (1999) there is now a greater likelihood that the expert witness is able to see all parties involved before a decision is made. This may mean that those parties not willing to co-operate with this assessment could cause severe difficulties in making really honest and worthwhile child custody dispute resolutions.

Those making decisions in this very important area must be experienced, qualified and have true justice in mind for the children involved as well as the parents. This means the following:

  1. They must be impartial in the decision they make in relation to both parents.
  2. In undertaking such a resolution a considerable amount of time is involved. In one study it was found that the average child custody evaluation with report writing took 26.4 hours. In addition to this psychologists and others spend an additional 3-4 hours consulting with solicitors and testifying in court.
  3. Also in the evaluation when appropriate are the need to test the intelligence, personality of children and sometimes parents.
  4. When making sole custody recommendations, this must be based on one parent being shown to be either an active substance abuser, or practising parental alienation, a parent lacking parental skills or psychological stability, or a parent lacking in emotional bonding. In the case of physical/emotional/sexual abuse this must also be borne in mind when making such decisions.
  5. Joint custody cases on the whole are preferred where both parents can play the maximum role in the rearing and care of their children. This might be said to be, all things being equal, the “ideal solution”. To rear their children in a joint manner is a great advantage.
  6. In order for joint custody to succeed however, it is vital for the parents to separate their personal difficulties from the important parenting roles they will play in a unified manner. This can often be assisted by specialists, psychologists and psychiatrists or expert witnesses who may practice some form of mediation when there are difficulties between the parents.
  7. There is a time however when children are no longer in the position of having to be passive in respect to their preference. Sometime around the 15th year children should be able to make a choice as to who they wish to live with and whom they wish to see but not in a custodial situation.
  8. The evaluation of who should have the child or children must be based on the combination of interviews of both parents, psychological testing of both parents, and the same for the child or children in question. This should be followed by report writing and the dissemination of information.

The assessment or evaluation

A. The Parental Interview

The parental interview must be open-ended in the first instance but certain areas should be covered if one feels they are likely to be relevant in making a decision. They include the following:

  1. assessment of the place of residence of both parents and most particularly the one who may have immediate custody of the child or children;
  2. the place of employment of both parents where appropriate, also the duration of the employment or security of the employment;
  3. the history of the individuals concerned who are employed;
  4. the educational history of both parents;
  5. names and ages of children who may be present where the child/ children are to reside;
  6. previous psychological/psychiatric treatment that either parents may have received in the past;
  7. alcohol and other substance abuse history of both parents;
  8. any difficulties in relation to the law that either parent may have encountered;
  9. any history of sexual abuse or assault or emotional or physical abuse;
  10. current medical history of both parents;
  11. any major stresses in both parent’s lives;
  12. previous marital history.
B. The interview of the child

Interviewing a child/children can be a difficult matter and much depends on the age of the child, intelligence and whether the child has been programmed by one parent or the other to avoid contact with the other parent. Equally children can give such answers as “I don’t know”, and this usually means they do not want to answer that particular question. It is probably best to give the child some opportunity to make a choice from several suggestions such as: “Would you like to see your mother/father more time, less time, or about the same amount of time?”

The child should also be asked how he/she is disciplined or punished by either parent and about the relationship between the parents. Children have often been programmed by one parent in order for that parent to have some advantage over the other parent. In a long well rehearsed litany of statements usually means that someone has programmed the child especially if the language used is not that of a child.

The question should also be asked in connection with one or both parent’s substance abusing behaviour i.e. alcohol etc. The questions that might be asked are:

  1. What do you do when you are with your father or mother?
  2. Who takes you to school?
  3. Who wants you to do your homework?
  4. Who makes certain you help in the house?
C. Obtaining other relevant information

Other information may be obtained form grandparents or other relatives or to visit the home of each of the parents. School records may also be consulted.

Sometimes cognitive tests or intelligence tests may be administered to the child or the parents, in order to obtain information about their capacity for reasoning, memory, concentration and judgement.

Personality testing as already mentioned can be of great value. In the United States the Minnesota Multiphasic Personality Inventory I & 2 are frequently administered. There are equivalent tests in Great Britain such as the Eysenck Tests which measure psychoticism, neuroticism, introversion/extroversion, impulsiveness, empathy, and venturesomeness and also have a lie scale indicating the truthfulness of the individual, and can indicate by the responses made, the desire of the person to be seen in a more socially acceptable light i.e. how they feel they should be seen rather than how they actually are. They are unaware of the responses they make not being valid. It is probably best to warn anyone taking such tests that there is a measure of lies which can be avoided by being very honest in responding. On the whole this results in individuals responding with a relatively low lie score. The test has norms for males and females and by ages and is an objective measure of personality.