“Not one shred of scientific evidence”

A recent story from British Columbia has put the issue of assessments used in some custody and access cases on the front burner for many parents involved in family law proceedings.

The situation involving the psychologist at the heart of this story is an important one in its own right, but it also raises important questions more broadly about the role that these assessments can play in custody and access cases and whether that role is necessarily helpful.

“What value is this?”

In this instance, the psychologist was investigated by the College of Psychologists of B.C. after a number of complaints had been made by parents about his work. The report found that, among other problems, his work fell below minimum expected standards and failed to consider documented issues with violence in the family in a proper manner. It concluded with a recommendation that the case proceed to a disciplinary hearing. However, because the psychologist agreed to retire, a discipline hearing was not held, which means there is no official finding of misconduct. That, in turn, means that parents who feel his assessments resulted in poor custody and access outcomes have little or no basis on which to reopen their family law case.

Had the College proceeded with a discipline hearing and found misconduct on the part of the psychologist, parents would have had access to a public report detailing his failings, which would have supported any appeal they might have chosen to launch in family court.

As one mother, who lost most of her time with her children, said:

“What value is this [the College’s investigation of the psychologist]? Who benefits from it? It’s not the children. It’s not the families who were harmed. The only person who benefits from the resolution was [the psychologist]. I’ve been denied my children – my children have been denied me.”

Family violence, MIA

Haley Hrymak, a research lawyer with Rise Women’s Legal Centre in Vancouver, is part of a research project examining the legal system’s response to family violence. She notes that many psychologists and counsellors don’t give adequate consideration to violence within the family when making their recommendations; sometimes, failing even to ask questions about whether there has been violence in the family.

“Obviously, the presence of family violence has a major impact on the best interests of the children, but our research suggests it is not always being captured or addressed.”

In the case of the B.C. psychologist, one mother was fortunate: the judge handling her family law case ignored the psychological assessment, which recommended that her ex-partner have sole guardianship, despite a documented history of his violence towards her, and her child now lives with her.

The lack of attention to men’s violence within the family is old news to those of us who work in the trenches of family court with survivors of that violence. We hear from woman after woman who has been treated dismissively when she raised the issue of family violence: with a psychologist, a counsellor, her own lawyer, a parenting coordinator, a mediator, a judge.

When those who play a role in determining what arrangements for children should be after their parents separate refuse to consider the presence of male violence in the family, outcomes are unjust and unsafe.

Parental alienation, redux

For example, while for a time parental alienation allegations seemed to be on the wane, they are alive and well again. It is increasingly common for an abuser to respond to his partner’s evidence of his violence by alleging that she is attempting to alienate the children from him. The focus of the case then shifts to an examination of his allegation, with attention entirely diverted from the initial claim that he abused her. Often, the court recommends or orders an assessment to assist it in making a decision.

In some cases, these reports claim that the mother has fabricated the abuse in an attempt to alienate the children. In others, the mother is described as being paranoid. As recent research from the United States shows, it works: fathers who raise parental alienation in response to evidence of their violence in the family win custody of their children at a staggeringly high rate.

According to American psychologist Ira Turkat:

“To the best of my knowledge, there is not one shred of scientific evidence that child custody evaluations benefit children and, most unfortunately, there have been cases where the psychologists’ recommendations to the court endorsed parents who later killed their children.”

Who’s who?

Certainly, this is the extreme end of the spectrum. There are many psychologists and social workers who have appropriate training and expertise in the area of violence within the family whose reports are very helpful to the courts and lead to outcomes that keep children and their mothers safe.

The challenge is that most people involved in a family court case don’t know they should look for someone with specialized education and experience. Increasingly, because of ongoing cuts to publicly funded legal aid programs, both parents are unrepresented, so do not even have access to legal advice about the pros and cons of having an assessment done.

In Ontario, child custody assessments can come about in one of three ways in a family law case:

  • The parents can agree to hire a private assessor to conduct the assessment
  • The court can order a private assessment
  • The court can request that the Office of the Children’s Lawyer conduct an investigation and prepare a report

With respect to private assessments, which the parents must pay for themselves, the website for the Ministry of the Attorney General states:

“When hiring an assessor, you should look for an experienced professional who has received appropriate training. The assessor should also be a member of the governing body for his or her profession.”

The Office of the Children’s Lawyer is a government-funded office, so there is no cost to the parents, but there is also no choice in who is appointed to prepare the assessment.

In either instance, there are many excellent assessors who have good knowledge about and experience with family violence, but, unfortunately, there are also some who do not.

What to do?

Anyone needing an assessment for a custody and access case, if there is a history of violence in the family, should talk to a women’s shelter or, if they are in Ontario, a Family Court Support Worker for recommendations of assessors who have the appropriate expertise before hiring one.

Those of us working for systemic change must continue to advocate for mandatory family violence training for all those who play a role in family court, including, but not limited to, those who conduct custody and access assessments.

Poor assessments should not mean that children die because they are in the care of an abuser; nor should they be denied a meaningful relationship with their non-abusive parent, most often their mother.

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