Ask the Experts

from the

AFCC eNEWS:

Guidance from

Leading Family Law

Professionals

www.afccnet.org

Ask the Experts from the AFCC eNEWS:

Guidance from Leading Family Law Professionals

Edited by:

Andrea Clark, MSW

Larry V. Swall, JD

October 2015

may be reproduced and disseminated without modification, for educational purposes.

ASK THE EXPERTS | 1

CONTENTS

Introduction

Top Ten Tips for New Parenting Coordinators (February 2008)

Christine A. Coates, MEd, JD, Robin M. Deutsch, PhD, Barbara Jo Fidler, PhD, Joan B. Kelly, PhD,

Arnold Shienvold, PhD, and Matthew J. Sullivan, PhD

Top Ten Tips for Interviewing Children for Custody Evaluations (April 2008)

Kathleen Clark, PhD, Leslie M. Drozd, PhD, Jonathan Gould, PhD, ABPP, Mindy F. Mitnick, EdM, MA, Kathy Kuehnle,

PhD, and Philip M. Stahl, PhD, ABPP

Top Ten Tips for Reducing Work Stress (June 2008)

Vicki Carpel Miller, MS, LMFT, and Ellie Izzo, PhD

Top Ten Tips for Mediators to Move through Emotions (August 2008)

Sue Bronson, MS

Ten Ethical Considerations for Parenting Coordinators (September 2008)

Linda B. Fieldstone, MEd, and Nina M. Zollo, Esq.

Ten Tips for Judges and Judicial Officers in Matters with Self-Represented Parties (October 2008)

Hon. Emile R. Kruzick, Hon. David R. Aston, Hon. Peter Boshier, and Hon. Hugh E. Starnes

Ten Tips for Separated and Divorced Families for the Holidays (November 2008)

Peg Libby

Ten Risk Management Tips for Child Custody Evaluators (December 2008)

David A. Martindale, PhD, ABPP

Top Ten Tips on Court Program and Community Collaborations (January 2009)

Linda B. Fieldstone, MEd, Hon. Sandy Karlan, and Hon. Judith L. Kreeger

Top Ten Things a Family Court Judge Should Remember (February 2009)

Hon. William C. Fee and Hon. Denise Herman McColley

Ten Tips for Parents About Children and Divorce (March 2009)

Jennifer McIntosh, PhD

Top Ten Things to Consider When Developing a Parenting Plan (April 2009)

FLAFCC Parenting Plans Taskforce

Top Ten Tips for Managing Personality-Disorder People (May 2009)

William A. Eddy, LCSW, Esq., CFLS

Top Ten Ways to Protect Your Kids from the Fallout of a High Conflict Break-Up (June 2009)

Joan B. Kelly, PhD

Top Ten Ways to Assess “Is Collaborative Practice Right for Me?” (July 2009)

Nancy Cameron, LLB

Top Ten Features of Models of Brief Focused Assessments (August 2009)

Linda M. Cavallero, PhD

Ten Tips for Setting Up A Court Connected ADR Program (September 2009)

David P. Levin, JD

Ten Tips for Success in Resolving Parenting Disputes (October 2009)

Hon. Harvey P. Brownstone, LLB

Continued

ASK THE EXPERTS | 2

Top Ten Resources of the National Council of Juvenile and Family Court Judges (November 2009)

Ten Practice Tips from the AFCC Task Force on Court-Involved Therapists (January 2010)

Lyn R. Greenberg, PhD, ABPP

Top Ten Useful and Possibly Distracting Websites (February 2010)

Annette T. Burns, JD

Top Ten Tips for Fostering Children’s Resilience after Divorce (March 2010)

JoAnne L. Pedro-Carroll, PhD, MA, MEd

Top Ten Tips for Using an Unbundled Approach to Expand Your Services and Build Your Practice

(April 2010)

Forrest S. Mosten, JD

Top Ten Mediation Screening Questions (May 2010)

Grace M. Hawkins, MSW

Top Ten Tips to Have a Successful Collaborative Practice Outcome in Family Cases (July 2010)

Sherri Goren Slovin, JD

Top Ten Biases Often Overlooked by Child Custody Evaluators (August 2010)

David A. Martindale, PhD, ABPP

Ten Tips for Cross-Examining a Child Custody Evaluator (September 2010)

Timothy M. Tippins, JD

Ten Tips for Surviving Cross-Examinations (September 2010)

Timothy M. Tippins, JD

Ten Steps on the Path to Stepfamily Happiness (October 2010)

Leslie Todd, LCSW, ACSW

Top Ten Ways to Reach Out to the Self-Represented (December 2010)

Pamela Cardullo Ortiz, JD

Child Support—Did You Know? (January 2011)

Cindy Holdren

Top Ten Things Family Law Professionals Should Know about Child Development (February 2011)

David Finn, PsyD

Ten Points of Consideration for Family Law Professionals about the Voice of the Child (March 2011)

Lorraine Martin, MSW, RSW

Ten of the Toughest Challenges in Parenting Coordination Work (April 2011)

Christine A. Coates, MEd, JD, Robin M. Deutsch, PhD, and Matthew J. Sullivan, PhD

Ten Tips for Legal and Mental Health Professionals Involved in Alienation, or Alleged Alienation

Cases (May 2011)

Barbara Jo Fidler, PhD, Nicholas Bala, JD, LLM, and Michael Saini, PhD

Creating a Circuit-Supported Family Program (June 2011)

Linda B. Fieldstone, MEd, and Michelle Artman-Smith

Ten Reasons the Hague Abduction Convention May Not Be Enough (July 2011)

Leslie E. Shear, JD

Top Ten Tips for Judicial Interviews of Children (August 2011)

Hon. Denise Herman McColley

Top Ten Questions to Ask When Selecting a Supervised Visitation Provider (October 2011)

Joseph J. Nullet and Judy L. Newman, MSW

Ten Tips for the Holidays (November 2011)

Robin M. Deutsch, PhD

Top Ten Tips for Dealing with Relocation Cases (December 2011)

Philip M. Stahl, PhD, ABPP

Continued

ASK THE EXPERTS | 3

Top Ten Tips for Handling Child Custody Cases Involving Domestic Violence (January 2012)

Loretta Frederick, JD, and Gabrielle Davis, JD

Ten Things to Enhance Social Media Success for Family Law Professionals (February 2012)

Annette T. Burns, JD

Top Ten Tips for Psychological Testing in Child Custody Evaluations (March 2012)

David Medoff, PhD

Ten Tips for Our Most Challenging Family Mediation Cases (April 2012)

Christine A. Coates, MEd, JD

Top Ten Tips for Professionals Appointed to Conduct a Child Custody Evaluation Accompanied by

Allegations of Child Sexual Abuse (May 2012)

Kathryn Kuehnle, PhD

Top Ten Ethical Issues in Forensic Consulting (June 2012)

Robert A. Simon, PhD

Ten Tips for Practitioners Using Social Science Research (July 2012)

Marsha Kline Pruett, PhD, MSL

Top Ten Tips for When to Withdraw as Parenting Coordinator (August 2012)

Siri Gottlieb, MSW, JD, Gary Direnfeld, MSW, and Christine A. Coates, MEd, JD

Research in a Strained System—When and How Can it Be Useful?

Top Ten Tips to Help Professionals Use Research Effectively (September 2012)

Lyn R. Greenberg, PhD, ABPP, Leslie M. Drozd, PhD, and Mary Catherine M. Bohen

Ten Tips for Judicial Officers Dealing with Self-Represented Litigants in Family Court (November 2012)

Michael J. Dwyer, JD

Ten Tips for Developing Parenting Plans for Special Needs Children (December 2012)

Daniel B. Pickar, PhD, ABPP, and Robert L. Kaufman, PhD

Ten Tips for Doing Forensic Addictions Evaluations (February 2013)

Robert L. Lang, LPC, LAC

Ten Tips for Professionals: Using Online Communication in an Ethically Responsible Manner

(March 2013)

Allan E. Barsky, MSW, PhD, JD

Ten Rules for Settlement Negotiations (April 2013)

Gregg M. Herman, JD

Ten Tips for Engaging People in Conversation (July 2013)

Sue Bronson, MS, and Rebecca T. Magruder, MSW, JD

Professional Self-Care: Ten Tips for a Quality of Life Check (August 2013)

Leslie Todd, LCSW, ACSW

Top Ten Tips for Interviewing Adolescents (September 2013)

Mindy F. Mitnick, EdM, MA

Ten Tips for Developing and Drafting Effective Parenting Plans in Mediation (October 2013)

Donald T. Saposnek, PhD

Ten Tips for Professionals on Domestic Violence and Cultural Contexts in Asian Communities

(December 2013)

Chic Dabby

Ten Serious Errors Made by Custody Evaluators (February 2014)

David A. Martindale, PhD, ABPP, and Jeffrey P. Wittmann, PhD

Top Ten Tips When a Child is Resisting or Rejecting Contact with a Parent (March 2014)

Robin M. Deutsch, PhD, and Matthew J. Sullivan, PhD

Ten Tips for Lawyers When the Other Party is Self-Represented (April 2014)

Annette T. Burns, JD

Ten Tips for Writing High Quality and Helpful Custody Evaluation Reports (August 2014)

Robert L. Kaufman, PhD, and Daniel B. Pickar, PhD, ABPP

Continued

102

105

107

109

111

115

118

120

121

123

ASK THE EXPERTS | 4

Ten Reasons to Reconsider NOT Using the Rorschach in Your Child Custody Evaluations

(August 2014)

Robert E. Erard, PhD

Ten Considerations for Using Gatekeeping to Assess and Describe Family Dynamics

(September 2014)

Leslie M. Drozd, PhD, Nancy W. Olesen, PhD, and Michael Saini, PhD

Ten Tips for Preparing for and Trying Relocation Cases: The Legal Perspective (October 2014)

Hon. Mark A. Juhas and Michael J. Kretzmer, JD

Ten Tips for Online Mediators: All Mediators are Online Mediators (November 2014)

Clare E. Fowler, EdD

Ten Tips for Client Engagement (December 2014)

William A. Eddy, LCSW, Esq., CFLS

What is the Biggest Challenge Facing Conflict Professionals Today? (January 2015)

Bernard S. Mayer, PhD

Ten Tips to Save Money Using Your Parenting Coordinator (February 2015)

Annette T. Burns, JD

Tips for Unbundling Your Family Practice: 2015 (March 2015)

Forrest S. Mosten, JD

Top Ten Tips for Helping Parents Keep Children Out of the Middle (April 2015)

Mindy F. Mitnick, EdM, MA, and Zachary A. Kretchmer, JD

Ten Tips for Working with Interpreters and Translators in a Court Setting (May 2015)

Grace M. Hawkins, MSW, and Hon. Emile R. Kruzick

Low-Income and Never-Married Fathers and Families: Context and Perspective for Service and

Support (July 2015)

Jacquelyn L. Boggess, JD

Courthouse Facility Dogs—An Innovation to Improve Services for Your Clients (August 2015)

Ellen O’Neill-Stephens, JD

Top Ten Reasons to Support a CASA Volunteer Program (Court Appointed Special Advocates)

(September 2015)

Doug Stephens

Index

125

129

131

135

139

141

144

146

150

153

155

157

160

162

ASK THE EXPERTS | 5

Introduction

Ask the Experts from the AFCC eNEWS: Guidance from Leading Family Law Professionals

Since 1963, the Association of Family and Conciliation

Courts (AFCC) has provided an interdisciplinary forum

for judges, lawyers, mental health and dispute resolu-

tion professionals to convene, innovate and share in-

formation on practice, research, programs and policy.

Members are AFCC’s most valuable resource, and

ever since the organization was founded, AFCC mem-

bers have been at the forefront of change, innovation

and reform in family law. Many concepts now common-

place, such as joint custody, mediation, collaborative

law, unified family courts, parenting coordination, diff-

erentiated case management, parent education and

alternative dispute resolution, evolved because of the

dedicated work, expertise and leadership of AFCC

members.

A willingness to share and collaborate in developing

new approaches to challenging issues is a hallmark of

AFCC membership. This happens through conference-

es, journals, think tanks, listservs, and newsletters.

This publication represents decades of expertise con-

tributed by AFCC members to the AFCC NEWS and

AFCC eNEWS. Published primarily as Ask the Experts

columns, this compilation of columns provides practice

tips for family law professionals in areas including

intimate partner violence, alienation, high conflict, par-

enting coordination, mediation, parent education and

more.

This compilation is available at www.afccnet.org and is

intended to be shared freely. Articles may not be al-

tered. The authors and AFCC must be credited if art-

icles are distributed or reproduced individually.

Editors: Andrea Clark, MSW, and Larry Swall, JD.

ASK THE EXPERTS | 6

February 2008

Top Ten Tips for New Parenting Coordinators

Christine A. Coates, MEd, JD, Boulder, Colorado, Robin M. Duetsch, PhD, Boston, Massachusetts, Barbara Jo Fidler, PhD, Toronto,

Ontario, Joan B. Kelly, PhD, Corte Madera, California, Arnold Shienvold, PhD, Harrisburg, Pennsylvania, and Matthew J. Sullivan, PhD,

Palo Alto, California

1. Avoid burnout

Don't let your caseload of parenting coordination (PC)

cases exceed half of your overall caseload. Take regu-

lar vacations making sure that you are not available

during those periods.

2. Never accept a PC case without a court order or

consent agreement

Always try to have input into the contents of the Stipu-

lation and/or Order before issuance or signing.

3. Payment

Get as much of a retainer as the parties can pay up

front and bill against it for your work. The beginning of

a case is very time intensive. Keep a client "trust acc-

ount" to hold unused retainer moneys, so that you don't

get caught taking a loan to reimburse clients.

4. Boundaries, boundaries, boundaries

Set up the communication structure immediately.

Set time limits on your sessions and stick to them.

Remind yourself that the clients own the problems.

5. Document, document, document

Document all of your work carefully and completely.

6. Screening

Screen for domestic violence (intimate partner violen-

ce) and power imbalances.

7. Calendar

Have the parents transpose the words of the parenting

plan/order for parenting time (usual and holiday) into

calendar form for at least 6 months, preferably for one

year, in the early stage of the work and quickly address

any scheduling conflicts, ambiguities, loop holes at the

outset to preempt nth hour conflicts, “crises.”

8. Conference call service

Get a reliable, affordable conference call service to fac-

ilitate conference calls in your work.

9. Hybrid ADR process (remember, it’s efficient!)

Parenting coordination is a hybrid ADR process, not

therapy, advocacy or evaluation. Take advantage of all

the functions as appropriate: assessment, education,

coordination, conflict management, mediation, arbitra-

tion. Also, make a clear distinction for the clients when

you begin to arbitrate a conflict and are making a de-

cision.

10. Networking

Have a mentor or at least a few other professionals to

consult with about parenting coordination cases. It will

save your sanity. Join the AFCC Parenting Coordina-

tion Network (group email networking list for AFCC

members to connect with each other, ask questions

and share techniques) for stimulating discussions.

ASK THE EXPERTS | 7

April 2008

Top Ten Tips for Interviewing Children for Custody Evaluations

Kathleen Clark, PhD, Galion, Ohio, Leslie M. Drozd, PhD, Newport Beach, California, Jonathan Gould, PhD, ABPP, Charlotte, North

Carolina, Kathryn Kuehnle, PhD, Indian Shores, Florida, Mindy F. Mitnick, MEd, MA, Edina, Minnesota, and Philip M. Stahl, PhD,

ABPP, Queen Creek, Arizona

1. Differences

Understand the differences between clinical/thera-

peutic and forensic interviews. Clinicians without spe-

cific forensic training should not engage in forensic

interviews. If an issue arises during the interview that

requires training more specialized than basic forensic

interviewing, report it to the proper agency or refer it to

an expert in an appropriate area.

2. Sound forensic interviews

Establish rapport, explain the interview purpose and

discuss interview "ground rules." Explain the limits of

confidentiality and how the information obtained will be

used in a way the child will understand. The interviewer

should explain to the child that it is acceptable to tell

the interviewer they don't know the answer to a ques-

tion or don’t understand it. Furthermore, they should

correct the interviewer if s/he is mistaken. The inter-

viewer should provide children with practice res-

ponding to open ended prompts when describing their

experiences.

3. Understand child development

In conducting forensic assessments of children, it is

critical that the interviewer determines any factors that

may impinge upon the child's ability to comprehend,

recall accurately and report past events. To understand

this, the interviewer should be trained in child develop-

ment including memory, suggestibility, language and

communication.

4. Truth or lie

The interviewer should let the child know that they will

not be able to help her/him answer questions and that

it is important to tell the truth. Ask questions early in the

interview that will determine if the child knows the diff-

erence between the truth and a lie.

5. Open-ended questions

Research has shown that open-ended questions pro-

duce better results than specific "risky" questions.

Examples of open-ended questions include: tell me,

what, where, when, how. Examples of risky questions

to avoid, if possible, include: why, did, was, can you

tell, or.

6. Follow-up

Follow up with questions such as "tell me more" and

"what happened next." Avoid yes/no and forced choice

questions unless necessary.

7. Ask one question at a time

Wait until the child is finished responding before asking

the next question or commenting on what the child has

said. Avoid repeating the question, as this may make

the child feel that her/his first answer was wrong.

8. Understand admissibility

Evaluators should be familiar with the Federal Rule of

Evidence 401 and similar rules of evidence in their

state, as well as, case law, including but not limited to

Frye, Daubert, and Kumho. Forensic practice is spe-

cialized and requires specialized training and know-

ledge.

9. Remember these are children

Speak to a child in words s/he will understand. Avoid

abstract, vague and legal terms. Some children may be

more open and communicative if they are allowed to

play or draw as they are interviewed.

10. Respect the children

Listen and make sure that you understand the child’s

point of view apart from the view of the parents. Let

them know that their views are important but they are

not responsible for the outcome—their parents or the

judge are.

ASK THE EXPERTS | 8

June 2008

Top Ten Tips for Reducing Work Stress

Vicki Carpel Miller, MS, LMFT, Scottsdale, Arizona, and Ellie Izzo, PhD, Scottsdale, Arizona

Vicarious trauma is what happens to us when we listen

to clients’ trauma stories day after day. We listen to

these stories, while controlling our empathic response.

This puts an enormous strain on our brain, leaving us

vulnerable to physical, emotional and spiritual distur-

bances. Take a look below to read our top ten tips to

reduce your brain strain and protect you from the ra-

vages of vicarious trauma.

1. Schedule your day realistically

Your work is not meant to envelop your life. Make sure

you have breaks or down time. Go to the bathroom, call

a friend, step outside and breathe.

2. Schedule difficult clients in between less

challenging ones

Working with difficult clients is draining; don’t see them

back-to-back. Your tolerance will be reduced and you

might get impatient or irritable.

3. Know your triggers

We all have a personal history, our childhood. Reveal

your history to yourself or someone else you trust so

you remain aware and conscious of your own personal

triggers and impasses. This will allow you to function

more competently and professionally.

4. Schedule exercise, lunch and frequent breaks

as though they were regular work day

appointments

These balancing activities are as important to you as

you are to your clients. Our physical health is para-

mount to providing clear thinking and ethical prac-

tice.

5. Debrief or talk with other professionals in a

safe, confidential setting

This is essential for releasing stress from our work and

preventing Vicarious Trauma.

6. Take care of your health

Schedule check-ups routinely with your doctor and

dentist. Don’t put it off and set yourself up to worry

about some unaddressed physical symptom.

7. Pay attention to your visceral reactions, such

as a gut kick or positive Gorney Reflex (hair

standing up on the back of your neck)

These are internal red flags to take notice of something

coming from the client that warrants your attention. Ig-

noring gut level reactions can lead to more complicated

circumstances later on in dealing with difficult cases or

clients.

8. Stay within your scope of practice

Our desire to help can sometimes lead us astray. Don’t

be afraid to ask for support from adjunct services.

9. Don’t procrastinate and put off completing

important paperwork or less desirable tasks

required in your work

Worrying about completing these tasks is far more

stressful than completing them on a regular basis.

10. Spend time in spiritual activities that access

the higher left side of your brain

These are activities that elicit positive emotions such

as joy and calmness for you. These activities are differ-

ent for everyone, but essential for all.

Vicki Carpel Miller, LMFT, and Ellie Izzo, PhD, are co-directors

of the Vicarious Trauma Institute in Scottsdale, Arizona. They

have recently co-authored Day After Day the Price you Pay:

Managing Second-Hand Shock and The Second-Hand Shock

Workbook. For more information, please visit their Web site at

www.vicarioustrauma.com.

ASK THE EXPERTS | 9

August 2008

Top Ten Tips for Mediators to Move through Emotions

Sue Bronson, MS, Milwaukee, Wisconsin

1. Make emotions a standard part of the discuss-

ion

When you paraphrase, include the feeling being ex-

pressed. It may be a feeling word, an image, or a meta-

phor.

2. Separate emotions from thoughts

Emotions are energy in the body. Thoughts are how we

make sense of events in our head. If you can change

the word “I/You feel…” to “I/You think…” it is probably

a thought. Without attention to emotions in mediation,

we run the risk of missing something central to a dis-

pute and its resolution.

3. Feelings are simple and universal

We all share common human emotions. The rhyming

basics are mad, sad, glad and afraid. Our common

experience of emotion is the foundation of empathy.

Look for emotions in mediation and how they affect

decisions.

4. Feelings are complex and individual

Each emotion has an intensity—annoyed, angry and

rageful are increasing intensities of mad—and can

blend with other emotions to create a unique array

for each of us. We may also have contradictory emo-

tions in rapid succession. When acknowledging an

emotion in mediation, slightly overstate the intensity

of emotions more difficult for the individual to ex-

press, allowing them to correct down if necessary.

5. Recognize your own feelings

Mediators need to be comfortable with our own emo-

tions so we don’t usurp the process. Knowing your own

emotions can help you better understand what is hap-

pening to others and see the early cues in mediation.

6. Watch carefully

Emotions are expressed through facial expressions,

breath, voice tone and volume, and body movements,

among other ways. Notice changes to unmask emotion

as it presents itself. Provide your observations without

judgment or interpretation.

7. Venting is NOT useful

Venting is generally a repetition of old statements and

reinforces negative patterns. True emotional express-

ion happens in the present moment. We can see/feel

the actual physical sensations in the body. The body is

a source of information, strength and a resource for

solutions.

8. Label it and move on

Sometimes it is enough to acknowledge an emotion

simply by naming it and moving on. Name the feeling

and connect it to needs and interests, pair it with a

question for clarification, provide another way to ex-

press the need, or follow with silence.

9. Slow down to experience the emotion

At times it may be important to capture a brief moment

when a new spontaneous response occurs. Was it

seen and understood? This could be an opening of

new doors for resolution.

10. Be genuine

It is not enough to learn stock phrases and use them

liberally. We must be authentic.

ASK THE EXPERTS | 10

September 2008

Ten Ethical Considerations for Parenting Coordinators

Linda B. Fieldstone, MEd, Miami, Florida, and Nina M. Zollo, Esq., Tallahassee, Florida

The parenting coordinator's (PC) ability and commit-

ment to act ethically is a fundamental part of the par-

enting coordination process and is a vital aspect of the

quality of the service offered. The PC's ethical behavior

preserves the integrity of the parenting coordination

process, provides protection for each participant and

helps maintain the sanity of the PC in dealing with

these high conflict cases. AFCC members Linda

Fieldstone and Nina Zollo offer their ten ethical con-

siderations for parenting coordinators.

1. Know your limitations

Decline the appointment or refer the case back to the

court for the appointment of a new PC, if there are

issues such as domestic violence or abuse, mental ill-

ness or substance abuse, or any other issues in which

you are not specifically trained to address in the par-

enting coordination process.

2. Screening is a process, not an event

Screening for domestic violence, mental health and

substance abuse should occur throughout the parent-

ing coordination process. You may be the first person

to recognize that such issues are impacting the family.

3. Know the law

Stay current with and adhere to all statutes, rules, ad-

ministrative orders, regulations and procedures in your

state or jurisdiction.

4. Know the legal history of the family

Be familiar with all orders, pleadings and other court

documents relating to the parents, the children, and

any extended family, if relevant.

5. Educate your clients on the PC process (or let

your clients know what they are getting into)

Provide an oral and written explanation of the parenting

coordination process to the parents during your first

meeting so that they are aware of the scope of your

authority, what the PC does and does NOT do, and any

limits on the confidentiality of the process.

6. Explain your fee structure

Explain the basis of all of your fees, how and when

each parent incurs charges, including time spent to

read information provided by the parents or obtain in-

formation from their court files, responses to emails,

fax and telephonic communications between meetings,

and any additional charges for depositions and testi-

mony.

7. No dual roles and learn to say NO!

Refrain from acting in any role not directly related to the

parenting coordination process, such as acting as att-

orney, therapist, financial advisor, custody evaluator,

mediator, advocate, supervised visitation observer, in-

vestigator or JUDGE. Educate the court on the role of

the PC by declining to perform tasks that are beyond

the scope of your duties, or are unethical according to

any other professional standards to which you must

adhere. (The AFCC Guidelines for Parenting Coordi-

nators may be a helpful resource to provide the court

when there is a general question of propriety).

8. You are not an enforcer

Since you are NOT the judge, and parents have due

process rights, you cannot impose penalties if the par-

ents do not adhere to your recommendations, court or-

dered authority, or payment plan.

9. You are not a miracle worker

No matter how skilled you are as a PC, there are cases

where parenting coordination should not occur (we

have all had them!), or should be terminated and refer-

red back to the court.

10. You can’t learn too much

Continued training is the key to enhance your know-

ledge base and helps you to enhance the knowledge

base of other PCs in your community. To make it easier

for you, AFCC offers trainings for PCs at conferences

and other venues periodically throughout the year!

ASK THE EXPERTS | 11

October 2008

Ten Tips for Judges and Judicial Officers in Matters with Self-Represented Parties

Hon. Emile R. Kruzick, Toronto, Ontario, Canada, Hon. David R. Aston, Toronto, Ontario, Canada, Hon. Peter Boshier, Wellington, New

Zealand, and Hon. Hugh E. Starnes, Fort Myers, Florida

Self-represented parties present a great challenge to

judges and judicial officers and are growing in numbers

throughout the world. This distinguished international

(Canada, New Zealand and US) panel of judges has

compiled a list of tips to help the judiciary fairly and

equitably treat clients who may be representing them-

selves and to guide them smoothly through the judicial

process.

1. Maintain order

It is the role of the judge or judicial officer to control the

courtroom and the proceeding. The judge should main-

tain that control with both the parties and the lawyer(s).

2. Inform of rights of parties

The judge or judicial officer should ensure that the self-

represented person is aware of his/her right to counsel.

If the person wants to be represented by a lawyer the

person should have reasonable opportunity to get legal

advice or hire a lawyer.

3. Ensure clarification

The judge or judicial officer should ensure the specific

issues before the court are clarified and that the judge

or judicial officer understands what the litigant is ask-

ing.

4. Understand the role

The role of a judge or a judicial officer is as a judge

and not that of counsel. However the judge or judic-

ial officer should ensure, without educating the liti-

gant, that the person understands that the proce-

dural and evidentiary rules will be followed and that

it is the obligation of the self-represent to respect

those rules and procedures.

5. Maintain boundaries

The judge or judicial officer should not engage in con-

versation with the litigant or the lawyer(s). The judge

should not engage in argument and should terminate

any such disagreement dispassionately.

6. Exhibit fairness

The judge or judicial officer should ensure that the per-

son leaves the courtroom with the sense that he/she

was dealt with fairly and had an opportunity to be

heard.

7. Treat both sides equally

The judge or judicial officer should be sensitive to the

difficult position of counsel as well as the litigant, but

treat both sides equally.

8. Be cognizant of emotions

The judge or judicial officer should be sensitive to tone,

vocabulary and body language. Attempt to use quest-

ions rather

than assertions in the dialogue with the self-

represented person.

9. Maintain balance

It is important that the judge or judicial officer not say

or do anything that reflects perception of familiarity with

the lawyer on the other side.

10. Record if possible

It is advisable to have a record of the exchange and

therefore consider having everything recorded.

ASK THE EXPERTS | 12

November 2008

Ten Tips for Separated and Divorced Families for the Holidays

Peg Libby, Executive Director, Kids First Center, Portland, Maine

When asked to write 10 tips for the holidays in the Ask

the Experts section of the AFCC newsletter, I decided

to ask the REAL experts, the kids who attend our div-

orce support groups at the Kids First Center. Here is

an excerpt from the Holidays and Celebrations chapter

of our new book, Kids First: What Kids Want Grown-

ups to Know about Divorce and Separation.

1. Plan, plan, plan

Planning and predictability help kids cope, especially

with events like holidays that are often ripe with emo-

tion and expectations.

2. Begin early

Don’t leave the complicated scheduling logistics until

the holiday is close at hand – take it seriously and make

decisions early (when parents begin writing out their

separation plans is a good place to start).

3. Be specific

Though future events can never be foreseen entirely,

kids want to know what to expect year after year at

holiday time. Specific and detailed holiday plans will

provide kids with the security of knowing they have a

plan they can count on.

4. Include the kids

Based upon the ages of the kids, parents are wise to

include kids in discussions of new holiday traditions,

while making it clear that the final decision will be up

to the parents.

5. Be open and flexible

Though parents are urged to specify a very detailed

schedule for holiday events, it is also unrealistic to

block out the possibility of changes. However, the

same rules of planning, specificity, predictability and

inclusion of kids apply.

6. Give kids permission to discuss their exper-

iences at the other home

Parents respect their kids’ need for privacy by not ask-

ing probing questions about the other parent’s home.

However, kids may want to discuss their holiday exper-

iences and they will feel comfortable if they are free to

do so.

7. Create new traditions

It is OK, even important, to acknowledge that “some-

thing has changed this year” as families go through the

first holidays following separations. Each parent can

play a role to help create a new, personalized tradition

that honors the old traditions.

8. Introduce no surprises

Introduction of surprises or emotionally charged infor-

mation, such as new partners, or moving, is best delay-

ed until a quieter time. When parents keep in mind the

child’s point of view during holidays, they can avoid bad

perceptions of otherwise good news.

9. Don’t discuss issues

Refrain from the temptation to use holiday drop-off and

pick-up times to review past problems and areas of ten-

sion. Parents can easily project their own feelings onto

their child.

10. Give yourself a break

It should be expected that difficult feelings and behave-

iors will arise around holidays and special events. Un-

fortunately, parents do not have a guide-book that tells

them what to do for every such event. There is only a

right solution for a specific family and specific kids. In-

formed, caring parents work together to figure out what

works to put kids first.

ASK THE EXPERTS | 13

December 2008

Ten Risk Management Tips for Child Custody Evaluators

David A. Martindale, PhD, ABPP, St. Petersburg, Florida

Risk is most effectively managed when we practice

well and practicing well requires that we set the bar not

at the lowest acceptable point (defined by enforceable

standards and regulations) but at the highest point

(found in the guidance that is offered by respected coll-

eagues and by professional organizations). Risk re-

duction procedures are, in many respects, anger re-

duction procedures. Litigation exacerbates anger, and

anger often gives rise to complaints. Litigation-related

anger is reduced when litigants and others involved in

the evaluative process are treated fairly.

1. Be fair

Evaluators are fair to litigants when the evaluators pro-

vide clear, complete, written information to the litigants

concerning the evaluators’ policies, procedures, and

fees and employ a balanced approach; are fair to child-

ren when the evaluators provide children with age-

appropriate information concerning the pro-cess; are

fair to family members and to collateral sources when

the evaluators make clear the ways in which inform-

ation gathered will be used and identify those to whom

the information is likely to be disclosed; are fair to attor-

neys when the evaluators provide information reason-

ably needed by attorneys in order to effectively counsel

their clients; and, are fair to judges when the evaluators

offer advisory input that has been developed in a sound

manner.

2. Have a data base for your opinions

Evaluators offer only those opinions that are based

upon sufficient facts or data and are the product of reli-

able principles and methods that have been reliably

applied to the facts of the case.

3. Keep records

Evaluators create records the completeness and qua-

lity of which reflects anticipation of their scrutiny in an

adjudicative form and take reasonable steps to main-

tain those records.

4. State your limits

Evaluators describe the known limitations to their

data without awaiting requests that they do so.

5. Know your local legal environment

Evaluators acquire knowledge of the legal and profess-

ional standards, laws, and rules applicable to the juris-

dictions in which their evaluations are performed.

6. Avoid dual relationships

Evaluators recognize that objectivity is impaired when

an evaluator currently has, has had, or anticipates hav-

ing a relationship with those being evaluated. The dy-

namics of c

ognitive bias that characterize concurrent relationships

also operate in sequential relationships.

7. Don’t make interim recommendations

Evaluators refrain from making interim recommend-

dations. Temporary orders often written in response to

interim recommendations transform previously level

playing fields into precarious slopes. Evaluators who

have all the information needed in order to responsibly

offer recommendations should conclude their evalua-

tions and prepare their reports. Evaluators who have

not yet obtained all the information needed in order to

responsibly offer recommendations should not offer re-

commendations. Information needed by the court in or-

der can be imparted without opinions being offered.

8. Do not speculate

Evaluators do not speculate. Carefully developed infer-

ences may be useful when appropriate emphasis is

placed upon the limits of such inferences, but specu-

lation offered by experts in the course of giving testi-

mony may be assigned weight that is not warranted,

with harmful results.

ASK THE EXPERTS | 14

9. Focus on parenting skills

Evaluators conceptualize parenting as a job; utilize

peer-reviewed research to ascertain what attributes,

behaviors, attitudes, and skills have been reliably asso-

ciated with the demands of the job; focus attention on

those characteristics; and, demonstrate that their opin-

ions rest upon the knowledge base of the mental health

fields by citing in their reports the research upon which

they have relied.

10. Support your statements

Evaluators base the opinions contained in their recom-

mendations, reports, and diagnostic or evaluative stat-

ements, including forensic testimony, on information

and techniques sufficient to substantiate their findings

and provide opinions of the psychological charact-

eristics of individuals only after they have con-ducted

an examination of the individuals adequate to support

their statements or conclusions.

ASK THE EXPERTS | 15

January 2009

Top Ten Tips on Court Program and Community Collaborations

Linda B. Fieldstone, MEd, Miami, Florida, Hon. Sandy Karlan, Miami, Florida, and Hon. Judith L. Kreeger, Miami, Florida

An increasing number of domestic relations courts are

recognizing that the needs of family litigants are often

non-legal child related issues and are best served out-

side of the family court arena. Family Court Services of

Miami-Dade County Domestic Relations Division was

developed to fill the gap between the court and the

community and bridge parents and children to the most

appropriate providers in their neighbor-hoods. In this

era of “do more with less,” this function of the court has

become even more crucial to the families we serve.

These Top Ten Tips will help you build strong links bet-

ween your court and community:

1. Define the need

Let the judges define their needs and develop a system

that meets their expectations; create easy forms and

meaningful procedures to structure a program to meet

the expectations of the court first. Remember that a

court services program would not exist without the con-

fidence of the court.

2. Know your customers

Understand the types of services that are best suited

for these families and search for them in various parts

of the community; if you don’t find what you are looking

for, help to create them.

3. Tailor each referral to the unique needs of each

family

Administer a comprehensive intake to ascertain needs

of the family, including location, language, affordability/

fee structure, insurance, date/time restrictions, gender

preferences, domestic violence and abuse history,

special training required, prior services utilized and

special needs of any family member.

4. Don’t forget the vet

Remember to check if either parent is eligible for vet-

eran’s benefits; collaborate with your local Veteran’s

Administration to provide a strong link to the appro-

priate provider.

5. Be aware of cross cultural issues

Make sure that the services that you offer are cross cul-

tural in nature so to avoid frustration and further bar-

riers to healing for the parents and children that are re-

ferred.

6. Be on guard when referring families with dom-

estic violence and abuse issues

Check if referral sources have appropriate safety pre-

cautions in place before referring families with dom-

estic violence and abuse history, such as separate ent-

rances and waiting areas, security cameras, security

guards, specific security procedures in place, detailed

verbal and written orientation to policies and proced-

ures and special training for providers.

7. Be prepared for crisis intervention services

Develop the capacity to assist the court with a parent

or child that requires immediate attention, threaten to

hurt themselves or others. Provide a link to the most

appropriate agency and/or law enforcement to ensure

the safety of those in proceedings.

8. Support your community providers

Provide networking opportunities and on-going train-

ings for community providers regarding the challenges

in working with family court litigants, differentiation in

high conflict and domestic violence and abuse cases,

appropriate interfacing with the court and specific court

procedures to follow. Invite judges too. Trainings pro-

vide a special link between the court and community;

providers feel appreciated and supported.

9. Create a family court council

Coordinate a meeting with the Chief Judge of the Divi-

sion (or designees) and the service providers in your

community to open the dialogue between the court and

the community providers. This will eliminate unfulfilled

expectations of one another and provide a smooth

working relationship.

ASK THE EXPERTS | 16

10. Establish quality control

Develop measures for quality control management and

assessment of the providers that the Court is using, as

parents will trust the program because the Court sent

them. The providers are interested in working with the

Court and getting our business, so don't be afraid to

thoroughly verify their credentials and accomplish-

ments.

ASK THE EXPERTS | 17

February 2009

Top Ten Things a Family Court Judge Should Remember

Hon. William C. Fee, Angola, Indiana, and Hon. Denise Herman McColley, Napoleon, Ohio

Judges who hear domestic matters need all the skills

of other judges plus some special interpersonal skills.

Some of the top things that family court judges should

remember are:

1. Humility

Take your job seriously, not yourself. Don’t ever be-

come overly impressed with yourself. You are not God

or the President, and you are definitely not infallible.

2. Equanimity

Try not to become angry at litigants. Treat them as you

would like to be treated. You are often seeing good

people at their worst.

3. Appreciation

What other job allows you to get up each morning and

remind yourself that what you do each day helps child-

ren lead a better life?

4. Creativity

Keep an open mind. Look for new ways to settle pro-

blems. Each family’s problems are unique.

5. Listening skills

Really listen to others – litigants, lawyers, children, wit-

nesses – it’s amazing what you will learn if you really

listen to what is being said.

6. Firmness

Be firm about requiring lawyers to prepare adequately

for trial, for mediation and for other legal processes. It

will save time and anxiety for everyone in the long run.

7. The self-represented litigant is not a lawyer

Have an easy plan of court access for self-represented

litigants, who are increasing in number.

8. Know the affiliated professionals

Know your local mental health professionals and med-

iators. They can help you do a better job and make life

easier for you.

9. Know the developmental stages of children

You are not expected to be a child psychologist, but it

is important that you know what can be expected of diff-

erent age children, and what developmental needs

have to be met at each stage.

10. Set the tone

Make your courtroom one where cooperation, not liti-

gation, is supported for parents in custody/parenting

time disputes.

Oh, yes, and:

11. Have an unlisted phone number

ASK THE EXPERTS | 18

March 2009

Ten Tips for Parents about Children and Divorce

Jennifer McIntosh, PhD, North Carlton, Victoria, Australia

1. Parents have a large influence on children’s

divorce outcomes

To a great extent, your child’s outcomes after divorce

are in your hands. That’s the good news, and the chal-

lenging news as well. The way you go about divorce

will make a difference to your children’s ability to cope

with the family separation, as well as their long term

well-being.

2. Warmth, availability and emotional safety

It’s important during and following divorce for parents

to be available and responsive to their children. That

means warm, real time parenting, not good time over-

compensating. Let your children know you are willing

to hear about all of their feelings – not just the ones that

feel good or seem fair.

3. Doing the emotional work

Being available to your children means clearing a spa-

ce in your own mind for thinking clearly about them.

Sadness, anger or confusion are normal and neces-

sary emotions for children as well as parents after div-

orce. Adjustment and working it through is what mat-

ters.

4. Keeping it predictable

Just like before divorce, infants and children after sep-

aration need predictability, routines, practical support,

and emotional scaffolding from Mom and Dad. They

need parents to stay attuned and be responsive to their

needs. Make sure your parenting arrangements enable

this to happen.

5. Cleaning up the conflict

Parents may take a while to sort through the conflict

that came with the separation. Get all the support you

need to sort it through as early as possible and go back

to your mediator or counsellor for “tune-ups” as need-

ed. While you are in the thick of parenting decisions

and settlements, your children shouldn’t be. Reassure

them you are working to resolve things.

6. Divorcing your spouse, not your child’s other

parent

Building a parenting alliance with your ex-partner is

crucial to your child’s emotional security after separa-

tion. That doesn’t mean being best friends, but it does

mean agreeing on how to communicate safely and

effectively about your child’s needs. Enlist the support

of a good mediator if that is hard to achieve on your

own.

7. Don’t drag it out

The longer parents’ take to build an alliance and re-

solve their disputes, the more energy a child has to use

to cope with strain and stress in the family. That can

drain a child of energy they need to get on with their

normal development: learning, building their identity

and esteem, having good friendships, and achieving

their goals.

8. Legal advice versus legal action

Many parents benefit from the advice of lawyers, to

inform them about their rights and responsibilities in

making parenting plans and resolving financial settle-

ments. Be aware that getting legal advice is very dif-

ferent from taking legal action. Adversarial processes

are necessary for a small percent of the population who

have serious risks and issues that cannot be resolved

otherwise. Research shows that engaging in court can

do further and long term damage to your relationship

with the child’s other parent. Take good legal advice,

but try to minimize the need for legal action.

9. Letting your children have a safe voice

Research also shows it can be beneficial for everyone

if children are given safe opportunities, free from loyalty

burdens, to express how things are for them, and for

their parents to better understand that. This is very dif-

ferent from asking children to make decisions – never

a good idea. Some court and mediation pro-grams

have specially trained social science professionals who

can assist with safely including children’s views in your

planning for post-divorce life.

ASK THE EXPERTS | 19

10. Permission and support for safe relationships

with both parents

Despite the acrimony that many parents feel for each

other during the divorce process, most children want to

keep their relationships with each parent and need

support to do that. Loyalty conflicts are common when

children see and feel a lack of respect and cooperation

between their parents. Worse still is the child who sur-

vives emotionally by distancing one parent in order to

keep sides with the other. Effective management of the

adult emotions involved means everything for child-

ren’s well-being, especially their need to preserve sup-

portive relationships with both parents.

ASK THE EXPERTS | 20

April 2009

Top Ten Things to Consider When Developing a Parenting Plan

FLAFCC Parenting Plans Taskforce

The AFCC Florida Chapter Taskforce on Parenting

Plans has looked to current research to provide for the

development of empirically advised parenting plans.

The Florida Chapter hopes to post more information,

including a substantial bibliography, on its web site at

FLAFCC.com soon.

1. There is no one size fits all parenting plan

Parenting plans should be constructed to meet the uni-

que needs of each family and each family member.

2. Children’s developmental needs must be con-

sidered

Children of different ages need and benefit from diff-

erent parenting arrangements. Parenting plans need to

include time-sharing arrangements that reflect child-

ren’s developmental needs and individual require-

ments as much as possible. As children get older,

these time-sharing arrangements will need to be more

flexible.

3. Children grow and families change

A good parenting plan takes into account develop-

mental changes as children grow and life cycle events

that will occur in the lives of their parents. Parenting

plans should not be static, and should anticipate the

need for adjustments to the parenting plan in order to

avoid potential conflict when these changes occur.

4. The best parent is two parents

When parents construct their plans, it expresses

their acknowledgement that both parents, whenever

reasonably possible, are important to their children.

Children retain the feeling of family when they have

pleasant, free access to both parents and both ex-

tended families. The best plan allows ample time for

each parent to develop meaningful ongoing rela-

tionships with their children.

5. Maximize relationships

The disrupting effect of divorce or parental separation

can have profound consequences for children. Child-

ren are likely to feel more secure and experience less

disruption in their lives when allowed to remain in safe,

consistent, supportive, and familiar environments. A

good parenting plan encourages the relationships that

existed between children and others that were esta-

blished before the divorce or parental separation.

6. Minimize loss

Children often experience a series of significant losses

as a result of their family’s changing structure. They

may lose their home, familiar schools, access to fri-

ends, access to extended family members, regular

contact with a pet, and daily access to a parent. Parent-

ing plans that anticipate these changes and minimize

losses for their children can be very beneficial.

7. Protect children from conflict

It is well documented that children are harmed when

exposed to the conflict between their parents. A good

parenting plan builds in structures to avoid children’s

exposure to parental discord. Some parenting plans

may help increase the level of cooperation between

parents and other plans may specify the use of an

outside party or “intermediary” if parents are unable to

resolve their parenting disputes without exposing the

children to conflict. Plans can also include that a speci-

fic mechanism such as counseling, mediation, and par-

enting coordination be attempted to resolve issues be-

fore parents resort to court action.

8. Protect children’s feelings and promote their

sense of well being

Children are harmed when they hear one parent say

bad things about the other parent. A child’s identity is

tied to being a product of both parents and their ex-

tended families. Parenting plans that build in children’s

rights to love both parents without fear of reprisal and

eliminates blame helps keep children out of loyalty

binds and minimizes their feelings of guilt for their par-

ent’s separation.

ASK THE EXPERTS | 21

9. Parenting style, gender, and culture makes a

difference

Each parent has different and valuable contributions to

make to their children’s lives. Parenting plans that ack-

nowledge and respect differences in parenting style,

the need for gender development for each child, and

the importance of maintaining cultural norms helps pro-

mote healthy development and a sense of continuity for

children.

10. Communications is essential

Communication and cooperation between parents is

important. Consistent rules and routines in both house-

holds and sharing of knowledge of events create a

sense of security for children of all ages. Parenting

plans should specify a detailed plan for constructive

and effective communication between parents about

the children.

The FLAFCC Parenting Plans Taskforce: Debra K. Carter, PhD,

Chairperson; Michelle Artman-Smith, Esq.; Eric Bruce, Esq.;

Linda Fieldstone, MEd; Hon. Diana Moreland; Jack Moring,

Esq.; Roxanne Permesly, LMHC; Laurie Pine-Farber, LCSW;

Magistrate Lee Schreiber; Deborah Silver, PsyD; Robert Silver,

PhD; Nina Zollo, Esq.

ASK THE EXPERTS | 22

May 2009

Top Ten Tips for Managing Personality-Disorder People

William A. Eddy, LCSW, Esq., CFLS, President, High Conflict Institute, San Diego, California

1. Don’t be surprised

People with personality disorders are normal in many

ways, yet they can be shockingly abnormal in intimate

relationships and during crises. Don’t be surprised that

a seemingly reasonable, intelligent and successful per-

son (in their work, etc.) may suddenly be extremely an-

gry, self-centered, manipulative, and lacking in empa-

thy in a close relationship.

2. Don’t try to talk logic

When a personality-disordered person is emotionally

upset, they may be physiologically unable to access

their logical, problem-solving skills. Research suggests

that some people with personality disorder may have a

smaller corpus callosum, which makes it harder for

their brains to process highly upsetting emotions and

problem-solving at the same time.

3. Learn the dynamics of personality disorders

People with personality disorders have chronic internal

distress and/or ongoing impairment of social function-

ing in many settings. They are characterized by an in-

ability to reflect on their own behavior and an inability

to adapt their behavior to changing circumstances.

This is part of who they are. There are at least ten dif-

ferent types of personality disorders.

4. There is treatment

While traditionally most mental health professionals

have viewed personality disorders as unresponsive to

treatment, some methods are having success these

days – especially those that emphasize cognitive-be-

havioral skills rather than seeking deep in-sights about

the past. Dialectical Behavior Therapy, developed by

Marsha Linehan in Seattle, has become the foremost,

research-based successful method for treating border-

line personality disorder. Schema Therapy, developed

by Jeffery Young in New York, in another method which

is having researched-based success with borderline

and narcissistic personalities.

5. It’s not about you!

People with personality disorders now represent app-

roximately 20% of the general population, at least in

the United States, according to a recent controlled

study of over 35,000 people sponsored by the National

Institutes of Health. They attack the people they are

closest to or people in authority. They chronically bla-

me others, as a defense mechanism against feeling the

unbearable pain of being consciously responsible for

their actions. Their constant blaming behavior is about

them, not about you.

6. Their problems go way back

One of the diagnostic mental health criteria for person-

ality disorders is that the disorder is a long-standing

problem dating prior to adulthood. In many, perhaps

most, the troublesome behavior it dates back to very

early childhood, when something went wrong in esta-

blishing a “secure attachment” between an infant and

his/her parent(s). If the child develops an “insecure

attachment,” research shows that the child is at much

higher risk of developing a personality disorder as an

adult. However, life events can help avoid this or in-

crease this risk.

7. Use empathy, attention and respect

While this is the opposite of what you feel like doing,

E.A.R. works surprisingly well at calming down any up-

set person. It doesn’t cost you anything and it doesn’t

mean that you agree – it just means you want to con-

nect with them to help them. You will have to re-peat

this often with personality-disordered people.

8. Their emotions are contagious

Research shows that emotions are contagious, and

that fear and anger are particularly contagious. Person-

ality-disordered people generally have less control

over their emotions, so that intense fear and intense

anger are common occurrences – and professionals

often get “emotionally hooked,” if they aren’t aware of

this.

ASK THE EXPERTS | 23

9. Respond to hostility with BIFF

Whether in emails, letters or in person, personality-

disordered people attack and blame those closest to

them and people in authority. Avoid the urge to

retaliate or criticize them. Instead, make your response

Brief, In-formative, Friendly and Firm.

10. You can’t reach everybody

Regardless of what you do, there will be some clients

you cannot help. It’s not about you. Avoid taking res-

ponsibility for their problems or decisions. You’re just

responsible for your part. Sometimes by letting go of

the outcome, they become more responsible. Pay att-

ention to any gut feelings that you may be in danger,

and get help when necessary. Get support and consul-

tation when working with personality-disordered cli-

ents. You’re not alone!

ASK THE EXPERTS | 24

June 2009

Top Ten Ways to Protect Your Kids from the Fallout of a High Conflict Break-Up

Joan B. Kelly, PhD, Corte Madera, California

1. Talk to your children about your separation

Studies show that only 5 percent of parents actually sit

down, explain to their children when a marriage is bre-

aking up, and encourage the kids to ask questions.

Nearly one quarter of parents say nothing, leaving their

children in total confusion. Talk to your kids. Tell them,

in very simple terms, what it all means to them and their

lives. When parents do not explain what's happening

to their children, the kids feel anxious, upset and lonely

and find it much harder to cope with the separation.

2. Be discreet

Recognize that your children love you both, and think

of how to reorganize things in a way that respects their

relationship with both parents. Don't leave adversarial

papers, filings and affidavits out on your kitchen count-

er for children to read. Don't talk to your best friend,

your mother or your lawyer on the phone about legal

matters or your ex when the kids are in the next room.

They may hear you. Sometimes kids creep up to the

door to listen. Even though they’re disturbed by conflict

and meanness between their parents, kids are inevit-

ably curious – and ill-equipped to understand these

adult matters.

3. Act like grown-ups: keep your conflict away

from the kids

People with personality disorders have chronic internal

distress and/or ongoing impairment of social function-

ing in many settings. They are characterized by an in-

ability to reflect on their own behavior and an inability

to adapt their behavior to changing circumstances.

This is part of who they are. There are at least ten dif-

ferent types of personality disorders.

4. Dad, stay in the picture

Long-term studies show that the more involved fath-ers

are after separation and divorce, the better. Develop a

child-centered parenting plan that allows a continuing

and meaningful relationship with both parents. Where

a good father-child relationship exists, kids grow into

adolescence and young adult-hood as well-adjusted as

married-family children. High levels of appropriate fath-

er involvement are linked to better academic function-

ing in kids as well as better adjustment overall. That's

true at every age level and particularly in adolescents.

Fathers, be more than a “fun” dad. Help with homework

and projects, use appropriate discipline, and be emo-

tionally available to talk about problems.

5. Mom, deal with anger appropriately

In their anger and pain, mothers may actively try to

keep Dad out of the children's lives – even when they

are good fathers whom the children love. When you’re

hurting, it’s easy to think you never want to see the ex

again, and to convince yourself that’s also best for the

kids. But children’s needs during separation are very

different from their parents. Research reports children

consistently saying, “Tell my dad I want to see him

more. I want to see him for longer periods of time. Tell

my mom to let me see my dad.”

6. Be a good parent

You can be forgiven for momentarily “losing it” in anger

or grief, but not for long. Going through a separation is

not a vacation from parenting-providing appropriate

discipline, monitoring your children, maintaining your

expectations about school, being emotionally avail-

able. Competent parenting has emerged as one of the

most important protective factors in terms of children’s

positive adjustment to separation.

7. Manage your own mental health

If feelings of depression, anxiety, or anger continue to

overwhelm you, seek help. Even a few sessions of the-

rapy can be enormously useful. Remember, your own

mental health has an impact on your children.

8. Keep the people your children care about in

their lives

Keep the people your children care about in their lives.

Encourage your children to stay connected to your ex’s

family and important friends. If possible, use the same

ASK THE EXPERTS | 25

babysitters or child-care. This stable network strength-

ens a child’s feeling that they are not alone in this

world, but have a deep and powerful support system –

an important factor in becoming a psychologically heal-

thy adult.

9. Be thoughtful about your future love life

Ask yourself: must your children meet everyone you

date? Take time, a lot of time, before you remarry or

cohabit again. Young children in particular form attach-

ments to your potential life partners and, if new relation-

ships break up, loss after loss may lead to depression

and lack of trust in children. And don’t expect your older

kids to instantly love someone you’ve chosen – this

person will have to earn their respect and affection.

10. Pay your child support

Even if you’re angry or access to your children is with-

held, pay child support regularly. Children whose par-

ents separate or divorce face much more economic

instability than their married counterparts, even when

support is paid. Don’t make the situation worse. In this

as in all things, let your message to the kids be that you

care so much about them that you will keep them sep-

arate, and safe, from any conflict. They will appreciate

it as they get older.

ASK THE EXPERTS | 26

July 2009

Top Ten Ways to Assess “Is Collaborative Practice Right for Me?”

Nancy Cameron, LLB, Vancouver, British Columbia, Canada

1. I want a confidential, private process

Collaborative Practice includes a commitment not only

to confidentiality, but also to resolving matters outside

of a contested court setting. This commitment ensures

privacy, since it does not create documents that are fil-

ed in court (except the final, uncontested divorce filing).

Unlike court-based processes, where financial state-

ments, tax returns, and affidavits are routinely filed in

court even if the parties do not end up in a (very public)

trial, Collaborative Practice allows participants to eng-

age in private negotiations.

2. I want to be involved in the negotiations, with

the support of my own lawyer

Collaborative Practice is a client-centered dispute re-

solution model. This means that one needs to be willing

to engage personally in the negotiations – to articulate

one’s needs, interests and desires, to engage in the

conversations necessary for negotiation, to brainstorm

possible solutions or to listen to one’s partner and

understand his or her needs. This can be daunting

work at a time when communication with the other par-

ticipant may be difficult, and where conflict-laden, en-

trenched communication patterns come to the fore.

Collaborative Practice lawyers are trained to support

you in your negotiations and to give legal advice within

the collaborative process in a manner that informs

clients but does not derail negotiations. They work to

assist their clients in evaluating possible solutions, tak-

ing into account: their client’s needs, the children’s

needs, feasibility, the law and analyzing both the bene-

fits and risks of agreeing to proposed settlements.

3. I want to have input into, and some control

over, the process

Since Collaborative Practice is a client-centered pro-

cess, the process can be modified to meet the needs

of clients. The disqualification agreement, the agree-

ment that neither lawyer (nor any other collaborative

professionals retained) will act for the clients in the

event either party begins a contested court proceeding,

is the core, nonnegotiable, process component of Coll-

aborative Practice. Within this boundary, the process

can be tailored to meet individual needs. It can involve

a coordinated team of mental health professionals to

work with communication and parenting plans, a child

specialist to make certain that the voice of the child is

heard, and a neutral financial specialist to assist in

compiling and understanding financial information, tax

consequences and future projections.

4. I want to have input into, and control over, the

outcome

As a voluntary process, no agreement is concluded un-

less and until the parties are in agreement with the

settlement. No one will impose a settlement on you.

The advantage of this is that you have the opportunity

to craft a settlement that meets your needs. The dis-

advantage of this is that you will not have a resolution

unless it meets the needs of both you and your spouse,

and you are both prepared to enter into the agreement.

Research across North America indicates that appro-

ximately 95% of cases that are begun in the court

system settle without a trial. Given this level of non-trial

settlements, it makes sense to choose a process that

is built on moving towards resolution, as opposed to

moving towards trial.

5. I want non-adversarial advocacy support

Collaborative lawyers are trained in interest-based

negotiation, in working in a team setting with the other

lawyer (and any other collaborative professionals) and

at the same time supporting you as your advocate.

Unlike traditional litigation lawyers, collaborative lawy-

ers commit to negotiating in an environment that is res-

pectful of both parties, that does not employ litigation

strategies, and that works towards creating a safe neg-

otiation environment for both people involved.

6. If other professionals are involved (mental heal-

th professionals, financial professionals) I want

them to work as a coordinated team with the law-

yers, and I want there to be a free sharing of infor-

mation between professionals

Collaborative Practice is the only dispute-resolution

process where all professionals have been trained in

ASK THE EXPERTS | 27

the same model of resolving disputes, and all commit

to the same principles. This involves an open sharing

of information between professionals, so that the pro-

fessionals are all working together to the same end – a

resolution that works for both parties. Although it is not

unusual for people to work with both mental health

professionals and financial professionals as they go

through separation and divorce, this coordination of

services is unique to Collaborative Practice. We bel-

ieve that the open sharing of relevant information bet-

ween professionals and the careful coordination of

their involvement increases the likelihood of client suc-

cess.

7. I believe my partner and I have a good chance

of resolving matters outside of a courtroom, and

we are both willing to commit our resources and

efforts to an out-of-court settlement

If you are not successful in reaching a resolution

through Collaborative Practice and decide to start a

contested court proceeding, then both you and your

partner must engage new lawyers. This obviously will

mean incurring additional legal fees. Current research

indicates that approximately 90% of collaborative cas-

es result in a settlement. It is important, when meeting

with your lawyer, to discuss factors that are likely to

increase or decrease your chance for success. What

does conflict look like between you and your spouse?

Do you have concerns about disclosure? How does

your collaborative lawyer suggest dealing with these

concerns? Is it important for you to continue to have an

on-going relationship with your partner?

8. I believe my partner and I continue to have

enough trust to be able to engage in good-faith

negotiations and full disclosure

It is sometimes difficult to assess trust at the end of a

relationship, especially when the deep trust necessary

to preserve a healthy, intimate relationship may have

been broken. If you have a profound distrust of your

partner, then collaborative practice may not be the right

choice for you. Do you have enough trust to be able to

negotiate in good faith? What support might you need

in order to do this? Do you have trust that all necessary

disclosures will be made? Are you trusting enough to

make these necessary disclosures yourself? If trust is

an issue, be certain that you talk to your lawyer about

this. Collaborative Practice has the advantage of being

able to work with a team of trained professionals to ass-

ist in trust building. However, profound distrust may be

an indicator that collaborative process is not the right

process for you.

9. I am willing and able to take my partner’s needs

and interests into account in developing process

and outcome, and believe he or she will do the

same

Collaborative process can be hard work. It requires in-

sight at a time when one may feel particularly vulner-

able. It requires give and take at a time when some

people feel they have given all they can. It requires

listening at a time when you might not want to listen. It

requires articulating your fears and understanding your

partner’s fears. It means that both people must work to-

gether to create a negotiation pace that works for both

of them. And finally it requires the ability say, “this is a

resolution that I can adopt,” and commit to signing a

final agreement.

10. I want a process that can incorporate the spe-

cific needs of our children, and works to improve

communication between the parents

For many parents, this is the number one reason for

choosing Collaborative Practice. If you have children,

what kind of a co-parenting relationship do you want to

build? As you navigate into a two-household family,

how important is it for you to create an environment for

your children where they can continue to cherish their

relationship with both parents, and know that their par-

ents have done everything possible to take the child-

ren’s particular needs into account? If you believe that

the end of a marriage does not have to mean the end

of a family, talk to a collaborative practitioner about

whether or not Collaborative Practice is the right choice

for you.

ASK THE EXPERTS | 28

August 2009

Top Ten Features of Models of Brief Focused Assessments

Linda M. Cavallero, PhD, Shrewsbury, Massachusetts

1. Some family matters involve issues limited in

scope

BFA models presume that in some family court cases

there are discrete issues, limited in scope, that do not

require a comprehensive family evaluation to assist the

court in judicial decision-making.

2. Specific referral questions must be identified by

a judicial officer

A BFA addresses specific referral question(s) identified

by a judge or designated judicial officer in a court order.

These narrowly defined issues can be assessed at

different stages in the legal process, whenever the jud-

ge requests a focused assessment.

3. BRAs are by nature more limited in scope than

CCEs

A BFA differs from a comprehensive child custody eva-

luation in its narrower scope, more descriptive report-

ing of data and, consequently, more limited inference

making. Comprehensive evaluations, by contrast, are

designed to provide data on more broadly based ques-

tions about general family functioning and parenting

capacity that are not appropriate to a BFA model.

4. BFAs can be an efficient as well as timely tool

for addressing time sensitive issues

A BFA can be an efficient and cost effective tool to

assist in judicial decision-making in family situations.

By their nature, BFAs involve more circumscribed in-

quiry into family issues, and are therefore likely to be

less intrusive to the family than comprehensive cus-

tody evaluations. BFAs can provide information to

the court more quickly than a comprehensive eval-

uation, avoiding some of the delays in the resolution

of issues that can exacerbate tensions in families. A

BFA can be used to assist judicial decision-making

when there are acute questions regard-ing individual

or family problems, especially those related to time

sensitive, child safety issues.

5. BFAs best address well defined questions that

require clinical judgment

A BFA best addresses questions that are well-defined,

narrow in scope and require clinical judgment, e.g., to

what degree is a child’s custodial preference based on

developmentally appropriate reasoning?; is supervised

visitation needed to protect a child’s safety or well-

being while with a parent in light of some aspect of the

parent/child relationship?; whether and under what

conditions to reunite an estranged parent and child-

(ren).

6. The assessor or their agency must be named in

a court order for assessment

Prior to commencing a BFA, the assessor must secure

a court order that includes a well-defined referral ques-

tion(s) and specifically names the clinician or their age-

ncy to conduct the assessment.

7. Assors select data gathering methods to add-

ress the referral questions

Assessors should design the BFA by selecting data

gathering methods designed to provide sufficient infor-

mation to address the referral question(s) of the court.

8. Clinicians interview family members, consult

relevant collaterals and review records

In a BFA, an appropriately trained clinician, in a court,

agency or private setting, conducts interviews with par-

ents and their children, observes parent-child inter-

action, reviews relevant records and consults relevant

collateral contacts. The assessment process is guided

by the focused question(s) provided by the court or

judicial officer.

9. Qualified mental health professionals with app-

ropriate education and training can conduct BFAs

BFAs should be performed by qualified mental health

professionals who are independent practitioners or part

of a family court system, by court services employees

ASK THE EXPERTS | 29

or by individual practitioners or teams qualified by stat-

ute or court rule. Brief focused assessors should poss-

ess appropriate education and training.

10. Assessors provide relevant information mak-

ing clear its limitations

As impartial assessors, clinicians who perform BFA’s

must strive to provide reliable, relevant information to

the court in a timely fashion, make clear the limitations

of the assessment and to identify important issues not

assessed.

ASK THE EXPERTS | 30

September 2009

Ten Tips for Setting Up A Court Connected ADR Program

David P. Levin, JD, Albuquerque, New Mexico

1. Judicial partnerships are fundamental

Courts are constitutionally created institutions which

judges are mandated to lead. The same litigant popu-

lation will visit the courtroom and the dispute resolution

office. Beyond being the administrative authority who

determines whether and how a court connected ADR

program will or will not happen, judges are essential

day to day working partners to effectively serve a com-

mon public.

2. Cultivate understanding with persistence, pati-

ence, and empathy

ADR providers, judges, court staff, the public, and the

legal community all live in different worlds. ADR pro-

gram leaders should assume that others, both the court

divisions and the identified population of litigants that

the program is serving, may not understand what an

ADR process offers and how it works. The same is true

for ADR providers regarding needs and interests of the

legal system and the target population. Identify players

and plan the time for mutual learning.

3. What does “ADR” mean for you?

“ADR” may mean anything. Identify core values and

their boundaries. Is a process time limited or open end-

ed? How does self-determination by participants inter-

sect with the pressure to close cases through evalua-

tive methods? This on-going assessment is essential

for guiding the direction of program development.

4. Start slow and small, and be open to adjust-

ments

Designing a program is a process, not an event. Learn

from early cases. Be open to the unexpected. Allow for

a “pilot project” period of time to learn what works, what

is problematic, what makes a difference and what has

been unforeseen.

5. Keep a “road map”

Start a never ending list of ideas. Log everything that

you think of – the notion may not come again! From

time to time, use a copy of the list to review and revise

goals, tasks and priorities. Periodically review the list to

rediscover great ideas.

6. Discover the legal and professional context

Learn to know the specific laws that apply to your pro-

gram, as well as the model national standards. This re-

quirement is particularly important for a court connect-

ed program. Know the context within which the pro-

gram will be operating.

7. Design screening and an option to return cases

Design the criteria and process for screening potential

cases, and include the option to decline a case which

is unamenable for the offered type of ADR. This essen-

tial step will clarify for yourself and others the scope

and boundaries for the program.

8. Capture early data and evaluate outcome re-

sults

One day you may have a sophisticated computer pro-

gram and evaluation protocols. At the onset of the pro-

gram, create even a crude way of tracking cases and

outcomes. Early data will be difficult to retrieve later,

and early outcome evaluation will provide important in-

sight for how the program is developing. Planning

these steps will help clarify program goals and expect-

ations, along with the indicators of whether the pro-

gram is on track.

9. Build a program policies and procedures man-

ual as you go

Keep archive copies of forms, policies, procedures,

and other documents. Design an outline of topics for a

program manual. Insert the documents in the outline,

and develop documents for unfilled sections. Describe

program mission, goals, objectives and processes. Ult-

imately include enough detail to allow the program to

be replicated.

10. Keep the faith

Program development takes time. Avoid being para-

lyzed by studying the situation to death, but also do not

leap blindly over the cliff for immediate success. Be

patient, thoughtful and flexible. Plan for set-backs and

for unexpected successes. Work hard in the short term

to help the long view happen.

ASK THE EXPERTS | 31

October 2009

Ten Tips for Success in Resolving Parenting Disputes

Hon. Harvey P. Brownstone, LLB, Toronto, Ontario, Canada

1. Be child-focused

Parents must learn to love their children more than they

dislike each other. Children need peace more than

their parents need to win. Make your child’s well-being

the focal point of every discussion you have with your

ex-partner. Before taking a position on any issue, ask

yourself, How will this affect my child? Ask your ex-

partner to do the same. Never let a discussion with your

ex-partner be about your needs or his/her needs; it

should always be about your child’s needs.

If you cannot agree on which solution would best meet

your child’s needs, ask yourself how you and your ex-

partner would have decided this issue had you remain-

ed together as a couple. In most cases, the answer

would be to consult an expert. For example, if you and

your ex-partner have a disagreement about your child’s

health, or educational needs, or extra-curricular active-

ties, you should both be meeting with your child’s doct-

or, school, a family counsellor, or parenting coach.

There are many professionals with special expertise to

help parents resolve their disputes in a child-focused

way. The first step to being a mature, responsible co-

parent is to always put your children’s needs ahead of

your own.

2. Learn to distinguish between a bad partner and

a bad parent

The fact that your ex-partner was a bad partner does

not necessarily mean that he/she is a bad parent. In my

experience, most people who have been unfaithful to

their spouses have actually treated their children very

well. The way that a person treats his/her spouse in an

unhappy relationship when no children are present

may not be a good indication of how that person treats

his/her children. It can be extremely difficult for a parent

who has been mistreated by the other parent to accept

that the child might see that parent differently and have

a good relationship with him/her. Your child is entitled

to get to know the other parent in his/her own right and

to have a relationship with the other parent that is in-

dependent from your own. Even if the other parent is

flawed, and even if restrictions or limitations must be

placed on his/her contact with the child, your child can

still have a safe and beneficial relationship with that

parent. If your feelings about the other parent are

standing in the way of your child’s relationship with him/

her, you should seek help from a counsellor or thera-

pist.

3. Never speak negatively to the child about the

other parent

Your child has a right to a loving relationship with each

parent, free of any influence or brainwashing. More-

over, your child needs and deserves emotional per-

mission from you to enjoy his/her relationship with the

other parent. It is unfair and cruel to place your child in

a conflict of loyalties and make him/her choose bet-

ween you and your ex-partner, as this deprives the

child of an important relationship. Keep your thoughts

and opinions about the other parent to yourself; never

share them with your child. Never draw your child into

your disputes with the other parent. And while I’m at it,

you should never criticize the other parent’s family,

new partner, or friends in front of your child. Nor should

you tolerate your relatives, new partner, or friends de-

nigrating or berating the other parent in front of your

child. Make it clear to them that your child is to be

shielded and protected from adult conflicts. Besides, it

makes absolutely no sense to criticize people that your

child is going to have a lot of contact with — what

exactly do you want a child to do with this information?

Most of the time a child will go right to the person who

has been criticized and repeat everything you have

said! Trust me, I’ve seen it happen thousands of times.

One thing I have trouble understanding is why parents

criticize each other’s new partners. If you were attract-

ed enough to your ex-partner to have a child with him/

her, why does it surprise you that someone else finds

him/her attractive? In most cases, a new partner had

nothing to do with the breakup and is going to have

considerable contact with your child. You gain nothing

by making an enemy of that person.

ASK THE EXPERTS | 32

4. Never argue or fight in front of your children

No exceptions. If you and your ex-partner cannot be-

have civilly in front of your child, then don’t be to-gether

in front of your child. It’s that simple. I cannot under-

stand why so many parents have trouble pretending to

get along with each other for the few minutes it takes

to pick up or return a child at access exchanges. It’s

called acting, and it’s not that hard to do! Parents —

even those who live together — pre-tend in front of their

children all the time. It is even more important to do this

after separation, because children need to be reas-

sured that their lives will be happy and stable even

though their parents live apart. Why are parents able

to behave well in a courtroom in front of a judge (at

least the vast majority do) but not in front of their own

children? Don’t they love their children enough to say

“hello,” “good-bye,” and “have a nice day,” and make

small talk for the sake of keeping things peaceful and

pleasant? Apparently not. This is shameful. There are

lots of ways for parents to communicate with each

other without the children being present: they can meet

in person, or use telephones, faxes, letters, e-mails,

and, of course, they can communicate through their

lawyers. There is absolutely no good reason for par-

ents to expose their children to their conflict. Parents

who continually fail to heed this advice should be pre-

pared to welcome the child protection authorities into

their lives. (See Chapter 11.)

5. Listen to the other parent’s point of view even if

you don’t agree with it

If you are going to communicate directly with your ex-

partner, remember that communicating with maturity

starts with listening. You must learn to really hear what

your ex-partner is saying, and understand his/her point

of view. In any disagreement, try repeating back to your

ex-partner what his/her position is, and the reasons

why he/she is taking that position. I often do this in

court and am frequently amazed by many people’s in-

ability to correctly repeat back to me what their ex-

partners have just finished telling me only a few se-

conds before! For that matter, I am equally amazed at

how often I am accused of saying things I did not say

— thank heavens we have transcripts in court that re-

cord exactly what was said! The point I am making is

that you cannot decide whether you agree with some-

one if you have not clearly understood what he/she is

saying. You must put your emotions aside and listen

with your brain. Even if you end up disagreeing with the

other parent, you should at least be able to convey to

him/her that you have understood his/her point of view.

Many times I find that once two people have clearly un-

derstood the other’s position, they are not as far apart

as they first thought they were. Good listening skills are

not acquired overnight, but post-separation counselling

can be very helpful in speeding up the learning pro-

cess.

6. Consider mediation before giving the decision-

making power to a judge

Too many parents react in a knee-jerk way to each

other’s conduct by running to family court without first

getting legal advice or considering the impact of start-

ing a court case. It is essential to consult a family law

lawyer before taking any steps to resolve a conflict with

an ex-partner. Your lawyer will explain your options

and advise you on which one will best fit your situation.

It may not be necessary to turn the decision-making

power over to a judge. With the right help, you and your

ex-partner may be able to arrive at compromises that

will be better for your family than a court-imposed de-

cision. Many thousands of parents have found med-

iation to be a beneficial problem-solving mechanism,

so it is definitely worth exploring. For all the reasons

given in Chapter 2, going to court should be a last

resort, except for the special circumstances set out in

Chapter 3.

7. Separate your financial issues from your par-

enting issues

In any family breakdown, there are two types of issues

to be resolved: financial issues and parenting issues.

These are completely separate matters and should be

dealt with that way. With the exception of the inter-

section that might occur between access and child

support (see Chapter 9), you should not allow your dis-

cussions and disagreements over property and money

to enter into your co-parenting relationship. Your rela-

tionship with your children should have nothing to do

with financial transactions or property transfers. Even

if your ex-partner’s conduct regarding financial matters

is making life difficult for you, this should not interfere

with his/her role in your child’s life. It can certainly be a

challenge to behave civilly with someone whom you

think is trying to cheat you financially, but the ability to

keep parenting issues separate from financial matters

is a hallmark of maturity.

8. Be flexible and reasonable in making access

arrangements

By far the greatest area of conflict between separated

parents is that of organizing, carrying out, and enforce-

ing access visits. Family courts everywhere are

swamped with parents complaining of each other’s

frequent cancellations, lateness, and a myriad of other

misbehaviours. In a great many of these cases, a little

ASK THE EXPERTS | 33

common sense and fairness from both parents would

have gone a long way toward resolving the problem.

Do your best to follow the four simple tips about access

given in Chapter 12. Be flexible and reasonable in

accommodating your ex-partner’s work schedule and

travel concerns, as well as changes in your child’s

routines. Be considerate when dealing with access on

special occasions and during vacation periods. You

never know when you might need your ex-partner to

extend the same consideration to you. Remember that

access schedules must be adjusted to accommodate

changes in the parents’ and children’s lives. This is not

only normal but is to be expected, so go with the flow,

don’t make a big deal out of every minor deviation from

your access schedule, and be willing to make compro-

mises for your child’s sake.

9. Your children still see you as a family, so com-

municate!

As I have mentioned, you can be an ex-partner, but you

are never going to be an ex-parent. If you truly accept

that your children are innocent and bear no respon-

sibility for your separation, then you know that they are

entitled to be part of a family and to have their parents

behave like family members, even though they live

apart. Children who have contact with both parents

need them to communicate with each other. I have had

situations in which a child’s health suffered because

one parent didn’t tell the other about the child’s medical

problem, so the child didn’t get the proper medical

attention in the other parent’s care. This is unforgiv-

able. When a child is going frequently from one par-

ent’s home to the other’s, it is vital that each parent

know about anything important that has happened to

the child while in the other parent’s care, especially an

illness. It is also important for parents to have each

other’s addresses and telephone numbers, unless

there is a very good reason to not disclose this inform-

ation — and even in that case, there must be some way

for parents to contact each other (for example, through

a third party) in the event of an emergency. Parents

should have equal rights to obtain information about

their children from schools, doctors, and other service

providers. Parents should have equal rights to attend

important meetings such as parent-teacher interviews

or key medical appointments. Both parents should be

able to attend special events in the children’s lives such

as religious ceremonies, school events, sports tourna-

ments, and music recitals. Even if there is a restraining

order (or criminal court no-contact order) prohibiting

contact, speak to your lawyer about the possibility of

amending the order to permit at least some minimal

form of communication regarding your child, even if it

is in written form (for example, by using a communi-

cation book), or through a third-party intermediary.

Your children need you to know what’s happening in

their lives even when they’re with the other parent. If

possible, find a safe and legal way to make this hap-

pen.

10. Don’t hesitate to get help

Family breakdown is one of the most stressful and

painful experiences anyone can go through. The chal-

lenge of overcoming a failed partnership while at the

same time developing a good working relationship with

an ex-partner can be overwhelming. You do not have

to do this alone. There are specialized counsellors and

therapists who can help you, your ex-partner, and your

child. Many community organizations offer excellent

programs to help separated parents and their children

make the necessary transition from ex-partner to co-

parent. There are social workers and parenting coach-

es with the expertise to help you and your ex-partner

develop a workable parenting plan. There are many

books that offer great ideas (see “Suggested Read-

ing”). Speak to your family doctor about a referral to a

counsellor or therapist. It’s worth attending one meet-

ing just to find out what services might be available to

you and your family. Finally, remember that your family

law lawyer is there to help you and can refer you to a

number of community resources. Family law lawyers,

like family court judges, know only too well that post-

separation parental disputes are about much, much

more than the law. Don’t let the legal aspects of your

dispute interfere with the critically important human as-

pects. If you do, you may be doing a disservice to your

children.

From Tug of War: A Judge's Verdict on Separation, Custody

Battles, and the Bitter Realities of Family Court by Harvey

Published by ECW Press Ltd.

ASK THE EXPERTS | 34

November 2009

Top Ten Resources of the National Council of Juvenile and Family Court Judges

1. The NCJFCJ website at ncjfcj.org offers a multitude

of resources for judges and other professionals for

improving practice in the fields of juvenile delinquency,

child abuse and neglect, domestic violence and family

law. For more information on any of the resources

listed here, please email [email protected].

2. Integrating problem-solving court practices into

the child support docket

By presenting practical examples of how judges can

improve practice in child support cases by utilizing a

problem-solving approach, this tool shows how pro-

blem-solving principles can help build a culture of com-

pliance in which parents will support their children vol-

untarily and reliably.

3. A practice guide: Making child support order

realistic and enforceable

This tool covers retro-active support orders and offers

guidelines for determining income, along with work-

sheets and checklists.

4. Website of the National Center for Juvenile Jus-

tice, the research department of the NCJFCJ. A "one

stop shopping" place for the latest statistics and data

on juvenile crime and victimization, statutes analysis,

and applied research practices with probation and pro-

viders. Visit ncjj.org or link from ncjfcj.org.

5. State profile website

This website provides the most comprehensive inform-

ation currently available on the juvenile justice systems

and laws in each of the 51 US jurisdictions and is

adding new content in 2010 relating to each jurisdic-

tion's implementation of strategies under the four core

requirements of the JJDPA.

6. Judicial Guide to Child Safety in Custody Cases

Because custody cases involving abuse have inter-

mingled issues of safety and access, judges require

effective and accessible information and tools to aid

their decision-making. The Judicial Guide contains 14

bench cards which provide an easy-to-use checklist

system for judges at critical decision-making points

throughout the case, as well as a supplemental guide

which provides additional information about in- and

out-of-court behaviors, best interest of the child, and

order issuance and enforcement.

7. Reasonable Efforts Checklist

Domestic violence in dependency cases often goes un-

recognized and unaddressed. This checklist includes

easy reference bench cards for judges to consult dur-

ing removal, adjudication, disposition, review, perman-

ency, and termination hearings involving domestic vio-

lence. It is designed to aid judges in making reasonable

efforts findings that are required by federal law in de-

pendency cases involving domestic violence.

8. Navigating Custody and Visitation Evaluations

in Cases with Domestic Violence: A Judge’s

Guide

This publication is intended to serve as a practical

guide for judges on how to interpret and act on pro-

fessional child custody evaluations when domestic

violence is involved in family law cases. The Guide in-

cludes four bench cards and supplementary material

that are intended to guide a judge chronologically thr-

ough the custody evaluation process.

9. The Adoption and Permanency Guidelines Im-

proving Court Practice in Child Abuse & Neglect

Cases

Presents best practice recommendations for use in de-

pendency cases involving abused and neglected child-

ren who cannot be reunified with their families. They

serve as an adjunct to the NCJFCJ publication Re-

source Guidelines. The Adoption Guidelines assist juv-

enile and family courts in assessing and implementing

improvements in the handling of child abuse and ne-

glect cases through the termination of parental rights

and adoption process.

10. Building a Better Collaboration

This publication outlines the key elements and strate-

gies that support effective and sustainable systems

change, and uses the experiences of Project Sites to

illustrate ways in which these theoretical concepts can

be implemented in the real world of child welfare re-

form.

ASK THE EXPERTS | 35

January 2010

Ten Practice Tips from the AFCC Task Force on Court-Involved Therapists

Lyn R. Greenberg, PhD, ABPP, Task Force Reporter, Los Angeles, California

1. Develop and maintain expertise

Acquire and maintain current knowledge of research

on divorcing/separating families and their children, as

well as issues such as child abuse, domestic violence,

alienation and high conflict dynamics, children’s sugg-

estibility and interviewing, and child development.

Such knowledge is essential to court-involved thera-

peutic roles, and is just as important for court-involved

therapists as for other experts. Even therapists who

work only with adults should develop and maintain suff-

icient knowledge of child-related research to address

parenting issues.

2. Informed consent

Detailed informed consent is more important when the

client or family is involved in a legal process. Provide

detailed informed consent documents; make every

effort to ensure that your clients, or the parents of a

potential child client, understand the nature of the ser-

vices to which they are consenting, any limits on

confidentiality, and the clients’ or parents’ response-

bilities toward the process (including financial arrange-

ments).

3. When treating children, know the legal custody

situation

A parent with apparent authority to consent to treat-

ment may not have actual authority, or may be required

by court order to consult with the other parent about

treatment decisions. Request a copy of any custody

order establishing and clarifying parents’ rights to in-

volve their children in mental health treatment, and any

decision-making processes that the parents are to

follow. If no such order exists, assume the parents

have joint legal authority. While it may be legal for one

parent to consent to treatment without consulting the

other parent, treatment effectiveness may be sabo-

taged if one parent is excluded.

4. Maintain professional objectivity and multiple

working hypotheses about case dynamics and

treatment needs

Remember that the information you are getting may be

one-sided or incomplete. Use caution in forming or

communicating therapeutic opinion based on one-

sided information.

5. Know the limits of your role and work within

them

Provide clinical feedback as appropriate to treatment

and clinical opinions when properly requested. Support

your client’s therapeutic progress, but avoid becoming

engaged as a legal advocate or expert.

6. Use methods supported by available research

Avoid methods, or interpretations of therapeutic info-

rmation, that would not be consistent with research on

issues such as child interviewing, child development,

parental conflict, or the use/misuse of play or other

behaviors as diagnostic indicators.

7. Release treatment information only with appro-

priate authorization

If you are working with a parent, be sure that the parent

has authorized release of treatment information and

has been informed of the potential consequences of

such disclosure. If working with a child, clarify the exp-

ectations regarding confidentiality, and who has auth-

ority to waive or assert the child’s privilege.

8. When a child is involved in treatment, maintain

balanced procedures

Attempt to obtain information from both parents and to

engage both in treatment if possible and appropriate.

Avoid unilateral communications with either parent’s

counsel. Remember that a biased approach to treat-

ment may also be perceived by the child.

ASK THE EXPERTS | 36

9. Convey opinions and information responsibly

Be cognizant of the potential power and misuse of

therapist information and opinions. Limit any opinions

expressed to those that can be clearly supported by

treatment data and are within the scope of the thera-

pist’s role. Avoid expressing opinions on psycho-legal

issues, even if asked. Avoid psychological jargon; con-

vey information/opinions in language that can be clear-

ly understood by non-mental-health-professionals.

10. Respect the legal system and your role within

it; expect accountability

Be respectful of the rights of the parties. Expect a

higher level of accountability; maintain records and

procedures that will allow you to support your actions.

Respect the roles of other professionals, some of

whom may be asked to review or assess the progress

or effectiveness of therapy.

ASK THE EXPERTS | 37

February 2010

Top Ten Useful and Possibly Distracting Websites

Annette T. Burns, JD, Phoenix, Arizona

1. Meetways.com

As a parenting coordinator, I find this helpful to create

solutions about halfway meeting places. It even desig-

nates nearby coffee shops, restaurants and malls that

are the most convenient to the halfway point between

two addresses.

2. Kindle

I love my Kindle (I have the Kindle 2, the paperback

book-sized one). The newer Kindle DX is larger (about

the size of a legal pad), giving it more utility with docu-

ment review and books that have tables and graphs.

PDF documents can be easily emailed to your Kindle

so you can review your own documents as well as read

books. If you are a serious reader, go to amazon.com

and check out the Kindle and give it some thought. I

have saved about half the price of my Kindle just

through book savings in the last six months.

3. HighConflictInstitute.com

I can’t tell you how many times a month I refer some-

one – either a private client or a parenting coordination

client – to read the books High Conflict People or It’s

All Your Fault. Some people I speak with are desperate

to know that they are not alone in dealing with someone

that they believe is ruining their life. These books (and

related articles) are invaluable in letting someone know

(a) they are not alone, and (b) there are strategies they

can use to ease both their own stress and the stress of

the other person. Note: When I refer these readings to

a parenting coordination client, I always refer the read-

ings to BOTH parties. And my “referrals” are usually

done in mass mailings to all PC clients, so it doesn’t

appear that I am singling out certain people or couples.

4. Academicearth.org

Albert Einstein said, “Learning is not a product of

schooling but the lifelong attempt to acquire it.” With

that in mind, you can watch a “Financial Markets” cour-

se online, taught by Robert Schilller at Yale University;

or Communication and Conflict in Couples and Famil-

ies, a UCLA course; or even a Princeton Political Sci-

ence course on “The Bin Ladens.” A bonus: Aristotle

said, “Education is the best provision for old age.”

5. Passport information

This website offers the basics that attorneys, custody

evaluators and parenting coordinators need to know

about passport issuance for children.

6. Virtual visitation ideas

This website has some good general concepts about

virtual visitation, including information about online ch-

ats, Instant Messaging, and “6 Ways to Make Virtual

Visitation Work.”

7. MrCustodyCoach.com

I include this mainly because the website compiles

some interesting news and articles; secondarily becau-

se family law professionals should know what’s out

there on the internet, and what our clients/patients are

reading. A recent (October 2009) good article is “Be

Smart for the Children: Post-Divorce Best Practices.”

8. Stayhitched.com

Articles, seminars and advice for couples getting marri-

ed, including specific financial advice. I particularly like

their suggested reading list.

9. Zillow.com

This is a down-and-dirty estimate of home values. It’s

probably not admissible in court, but it can be helpful in

speaking with a client informally, especially if the client

believes there is significant equity the marital residence

that could potentially solve everyone’s problems. Zillow

may tell you the house is actually under water, leading

to different settlement strategies.

10. Google Reader

I recently learned that I can’t live without Google Read-

er. I had several blogs saved in my “Favorites,” or on

my personalized iGoogle home page, but don’t remem-

ber to click on them often enough. Google Reader puts

them all together so when I finally remember to access

it, I can scroll through and see recent blog updates in a

row. I can scroll quickly or I can go more slowly and

read each update in detail. It’s a great, organized way

to read blogs you’re interested in and want to keep up

with.

ASK THE EXPERTS | 38

March 2010

Top Ten Tips for Fostering Children’s Resilience after Divorce

JoAnne L. Pedro-Carroll, PhD, MA, MEd, Rochester, New York

How children fare during and after a divorce depends

largely on how parents handle changes and create

quality of life for their children over time. Many factors

influence their resilience; research and clinical practice

have shown these to be among the most important.

1. Tell and show them you love them—Repeat

very often

Reassure children that the love you have for them will

never end—and then back it up with your behavior.

Children crave parents’ physical expressions of affect-

ion along with words of love, encouragement and re-

assurance.

2. Prepare children for changes

Begin by telling them about what will and will not

change for them as a result of the divorce. “Telling” is

not a one-time event. Continue the conversation over

time, as family changes continue to occur. An open line

of communication is a life line for children, especially

during turbulent times.

3. Strengthen your relationship with your children

Do not allow your divorce from your former partner to

become a divorce from your children or your role as

their parent. Create frequent, regular, one-on-one time

with each child. Use play and other enjoyable activities

to build closer emotional bonds and express your love

and reassurance. Noticing and expressing apprecia-

tion for your children’s positive behaviors and acts of

kindness creates good will that fuels hope, optimism,

and loving relationships.

4. Help your children identify their emotions and

respond with empathy

Children often hide their real feelings about a divorce,

but by listening carefully, you can help them to explore,

understand, and label their emotions. Neuroscience re-

search has shown that labeling emotions has powerful

therapeutic effects in the brain. Your empathy for what

they are experiencing also helps children cope with

powerful feelings.

5. Contain conflict

On-going conflict is poisonous for children, emotion-

ally, socially and physically, and it erodes positive par-

enting. Never let your children witness violent or hostile

behavior or hear you denigrate your former partner.

Avoid putting your children in the middle of your pro-

blems or creating situations where they feel they must

choose between their parents.

6. Share parenting, if it is safe to do so

Your children benefit from two responsible parents. Re-

frame your relationship with your former spouse as a

“business” partnership whose sole focus is your child-

ren’s well-being. Use legal options and experienced

therapists to help you and your former partner keep

your children’s needs a top priority and create effective

parenting plans.

7. Support and encourage your child’s safe and

healthy relationship with both parents

Nurture your children’s healthy relationship with their

other parent. When problems arise between them, help

your children discuss it respectfully and help them find

ways to ease their distress and learn to problem-solve.

Do not burden children with adult problems that con-

tribute to loyalty conflicts and alliances with one parent

at the expense of a healthy relationship the other.

8. Focus on what is in your control and strive for

consistent, quality parenting

Research shows that warmth, nurturing and empathy

along with effective and consistent discipline, rules and

limits is related to better adjustment for children and

teens. Children need and want consistent limits in both

of their homes. Knowing how they are expected to be-

have gives children a sense of control over their own

behavior and their lives. They feel a basic sense of trust

and security, even as they learn new skills within a

loving structure.

ASK THE EXPERTS | 39

9. Teach and model resilience skills

The skills that influence resilience are well defined.

Explain and practice: age appropriate understanding

and acceptance of family changes, problem solving,

coping skills, understanding and managing emotions,

differentiating between what can and cannot be con-

trolled, expressing empathy, and fostering hope, com-

petence and confidence. A supportive relationship with

caring adults is an essential contributor to resilience.

Reach out for support and get help when needed.

Resilient children are connected through faith, friends,

family, nurturing communities and supportive resourc-

es. Support your child’s healthy relationships with other

caring adults and mentors.

10. Provide household structure, routine and tra-

ditions that children enjoy—including family time

together

Reducing the number of major changes in a child’s life

and having consistent structure at home helps children

to feel safer and more secure when their lives have

changed dramatically. Regular bedtimes, meals toge-

ther, limits on “screen time,” and plenty of quality time

as a family are all factors that have proven to positively

influence better social and emotional adjustment.

JoAnne Pedro-Carroll, PhD, MA, MEd, is a clinical psychologist

and child specialist based in Rochester, New York. She is the

author of Putting Children First: Proven Parenting Strategies for

Helping Children Thrive after Divorce, Avery/Penguin, 2010.

ASK THE EXPERTS | 40

April 2010

Top Ten Tips for Using an Unbundled Approach to Expand Your Services and Build Your

Practice

Forrest S. Mosten, JD, Beverly Hills, California

If your family practice is currently so overwhelmed with

clients that you are turning people away, then read no

more. If, on the other hand, you are interested in further

building your practice, the following tips may help you

develop additional unbundled approaches that meet

the needs of divorcing families. Rather than self-repre-

senting due to their desire to maintain control and re-

duce fees, many clients will pay for affordable innova-

tive limited scope services.

1. Let clients know that you unbundle

Tell clients in the first meeting or even on your website

that you are available and enjoy helping them on a

limited scope basis: you will meet for short sessions

(30 minutes), by telephone or Skype rather in person;

or can help them for just one issue (summer vacation)

or task (ghostwriting letters to their parenting partner).

2. Before a client signs up for full service, offer a

comparison with an unbundled approach

Information is the essence of client informed consent.

Compare and contrast a full service approach with lim-

ited services by discussing the benefits and risks of an

unbundled approach using following variables: clients'

ability or willingness to handle part of the work them-

selves, the difference in stress, cost differential, and

the ability of the client to later convert to a full service

approach after starting on a discrete task basis.

3. Offer stand-alone orientation services

Unbundle your role as a client educator from that of a

service provider. Develop services that can inform div-

orcing parents individually or together about the legal

or parenting issues and available process options in

your community—then refer the clients to others rather

than providing the services yourself

4. Turn your office into a divorce family classroom

By creating a client library with DVD’s and computer-

ized information, handouts, and access to community

resources, you can empower client's informed decis-

ion-making by giving them information to help them-

selves or keep their costs down within a full service

context.

5. Be a shadow coach

Clients appreciate having you prepare them for nego-

tiations with the other party at Starbucks or a court

mediation session and having you available on-call if

they need your ideas, advice, or support during the

session itself. Your involvement can remain confid-

ential so that the client can get your help without pro-

voking or frightening the other party.

6. Attend sessions as a consultant

As a professional trained and supportive of mediation

and collaborative law, you can attend sessions as a cli-

ent resource rather than an advocate.

7. Limit your services to be a conflict manager

Some matters are not yet agreement-ready and clients

may need help to gather information, handle immediate

issues, or locate/engage other experts. Be available for

these pre-settlement tasks and be open to the client

utilizing another mediator or representative to actually

negotiate the deal when the time is ripe.

8. Endorse confidential mini-evaluations (CME)

Put as many barriers as possible between the family

and the courthouse—and still get necessary expertise

and recommendations to resolve impasse. Offer

CME’s within the mediation and collaborative process-

es and recommend the use of CME’s with other neu-

trals when you already have another professional role.

9. Suggest and offer second opinions

Oncologists often insist that their patients obtain a se-

cond opinion before commencing or continuing treat-

ment. So should we. Make such unbundled second

opinion recommendations a standard part of your pra-

ctice and consider offering second opinions yourself.

ASK THE EXPERTS | 41

10. Be an unbundles preventive conflict wellness

provider

After successfully resolving a family conflict, conduct

an unbundled future conflict prevention consultation to

discuss methods to resolve future disputes, regular

parenting meetings, and options to monitor and avoid

future family conflict. Helping clients maintain family

conflict wellness may be the most important contri-

bution that we make to the divorcing families we serve.

Forrest (Woody) S. Mosten has been a family peace-maker in

Los Angeles since 1979 and is recognized as the “Father of

Unbundling.” He is the author of Unbundling Legal Services

(ABA, 2000) and Collaborative Divorce Handbook (Wiley, 2009),

Mediation Career Guide (Wiley, 2001), and Complete Guide to

Mediation (1997). Woody can be reached at

www.MostenMediation.com.

ASK THE EXPERTS | 42

May 2010

Top Ten Mediation Screening Questions

Grace M. Hawkins, MSW, Tucson, Arizona

Prior to conducting mediation it is important to screen

the case to determine whether or not mediation is app-

ropriate and, if it is, what the best way to proceed might

be, whether that is to bring the parties together, or to

conduct shuttle mediation. The following questions are

based upon an individual face-to-face screening con-

ducted with each of the parties who have been court-

ordered to attend mediation. The screening is conduct-

ed immediately prior to the start of mediation.

1. Are your carrying any weapons or recording de-

vices?

It is important for people to feel physically and emo-

tionally safe in mediation. This question allows the

mediator to establish that no weapons are allowed and

that the mediation process is confidential. It also gives

the mediator a way to discuss the exceptions to con-

fidentiality in regard to reportable child abuse, duty to

warn and any observations of physical altercations bet-

ween the parties.

2. Do you have any physical or mental health con-

cerns either for yourself, the other parent or for

any of the children who are involved?

By asking this question, the mediator is be able to

determine if there are any special needs of either the

parents or the children that might need to be addressed

in their custody and/or parenting time plan or in the

mediation session itself. It is also important for a med-

iator to determine if there are any physical or mental

health conditions present that might make mediation

inappropriate. We often follow this question by asking

parties if they are on any medications in order to make

sure people are not currently taking any medications

that might interfere with their ability to think clearly and

make decisions.

3. Do you have any concerns either for yourself or

for the other parent in regard to any alcohol or

drug abuse?

Since substance abuse concerns are often present,

this question allows a parent a chance to express the

concern and for the mediator to become aware if this is

an issue for the case. If a parent has a concern, the

mediator can ask the party what if anything might alle-

viate their concern and the answer to that question can

be the initial proposal for the area of concern.

4. Has child protective services ever been invol-

ved with your children?

On occasion, child protective services may be involved

in an active investigation and it would not be appro-

priate to proceed with the mediation until the investi-

gation can be completed. Parents will often share info-

rmation as to how or why CPS has been involved in the

past and whether or not the allegations were substan-

tiated.

5. From the first day that you met, up until today,

has there ever been any hitting, pushing, shoving,

kicking, hair pulling or slapping that has occurred

between you and the other parent?

This question is important in order to ascertain whether

there has been any physical violence between the par-

ties and whether it has occurred throughout the rela-

tionship. We believe it is better to ask specifically about

such behaviors rather than a general question about

whether or not there has been domestic violence be-

cause people will often say no to a question about dom-

estic violence but when asked about specific behaviors

respond in the affirmative that those specific things

have happened. Often times people will respond that

there has been no physical violence but tell of emo-

tional abuses that have occurred.

6. Has there been any destruction of property,

thing thrown at each other, holes punched in the

wall, car damaged?

This question again gets to whether or not there has

been domestic violence between the parties, but in a

different way.

ASK THE EXPERTS | 43

7. Have the police ever been called out for any alt-

ercations between you and the other parent?

The answer to this question will provide the mediator

with information as to whether the police were involved,

how often and for what. As a follow up to this question

it is important to inquire whether anyone was arrested

as people will not always share that unless asked dir-

ectly. The police may have been called out for custodial

interference issues, domestic violence issues or for

issues between extended family members and the

other parent. Knowing why and who was involved al-

erts the mediator as to the extent of police involvement

and to what other issues may be present in the med-

iation case.

8. Are there currently any restraining orders or

orders of protection in place?

It is important to know if these are in place and who

filed what against whom. If there are restraining orders

in place, if a child care plan is developed, it will need to

take that into account. The mediator will also need to

have people leave separately after the session.

9. Do you currently feel like there are any threats,

intimidation, coercion or harassment happening

between you and the other parent?

By asking this question, the mediator often gains info-

rmation on past threats, harassment and intimidation

as well as current threats, harassment or intimidation.

Sometimes a parent will state that they used to be inti-

midated by the other parent but are no longer afraid of

that parent.

10. Do you have any fears or concerns about be-

ing here?

Sometimes, people will respond to this question that

they are fearful to leave or that they were fearful about

being here, but as long as they are not left alone with

the other party they will be okay. We follow up this

question with two others: Do you feel like you can sit

in the same room with the other parent? Can you

stand up for yourself; say no if you feel strongly

about something? All of these questions help the

mediator determine whether or not the client feels em-

powered and is able to advocate for themselves, both

of which are needed in order for mediation to be app-

ropriate.

Grace M. Hawkins, MSW, is the Director of the Family Center of

the Conciliation Court in Tucson, Arizona.

ASK THE EXPERTS | 44

July 2010

Top Ten Tips to Have a Successful Collaborative Practice Outcome in Family Cases

Sherri Goren Slovin, JD, President, International Academy of Collaborative Professionals, Cincinnati, Ohio

1. Share available dispute resolution process options

with your client in a respectful, realistic way.

2. Help your client determine whether the Collaborative

Process (CP) will effectively meet his or her goals and

interests.

3. Before CP is chosen as a process option, inquire

about how conflict with the spouse has been resolved

in the past so that you have insight into both your client

and his/her spouse.

4. Prepare your client for the challenges that come with

resolving conflict so that expectations are realistic.

5. Be an active participant in your local Practice Group

so that you can develop a solid trust relationship with

the other Collaborative Professionals you work with.

6. Recognize the value of working with mental health

and financial professionals. Family in transition are

complicated and the value of a team can’t be under-

estimated!

7. Prepare for meetings and debrief, both with your

client, and the other professionals.

8. Stay the course. When things get tough, don’t slip

into the comfort of letters and positions.

9. Recognize the power of deeply understanding inter-

ests and creating interest-based option and the reality

that negotiations have a distributive component.

10. If thing feel stuck, take a breath and ask for help.

You will find wisdom in the clients, the team, your prac-

tice group, and in the worldwide Collaborative comm-

unity.

Sherri Goren Slovin, JD, lives in Cincinnati, Ohio and is the Pre-

sident of the International Academy of Collaborative Profession-

als.

ASK THE EXPERTS | 45

August 2010

Top Ten Biases Often Overlooked by Child Custody Evaluators

David A. Martindale, PhD, ABPP, St. Petersburg, Florida

None of us is free of bias. Biases come in various

forms, but as the term is used here, it will refer either

to any tendency to process the information that we

gather in a manner that is strongly influenced by our

personal and professional beliefs (attitudinal biases),

thereby impairing our objectivity, or to the methods util-

ized by us in processing information (cognitive biases).

The task of the evaluator is to take all reasonable steps

to (a) identify all foreseeable sources of bias, (b) elimi-

nate those that can be eliminated, (c) minimize those

that cannot be eliminated, and (d) be alert to the ways

in which both attitudinal biases and cognitive biases

can impair our ability to formulate sound opinions.

This article will provide a brief discussion of ten often

over-looked biases. The phenomena involved in these

will be easily recognizable, but our collective failure to

discuss them may be attributable to the fact that they

have gone unnamed.

1. The first of the “newly named” biases makes its app-

earance during the data gathering process and shall be

dubbed the Jiminy Cricket Bias. It is the Jiminy Cricket

Bias that leads otherwise rational evaluators to believe

that they can detect deception in custody litigants as

easily as Jiminy Cricket detected lying by Pinocchio. It

is this bias that leads evaluators to ignore the research

that documents our inability to discern who is being

candid and who is not, and, as a result, neglect to ob-

tain verification of data relied upon.

2. It is during the data integration stage that we en-

counter the Troxelogical Bias—named by me for the

deliberative process employed by the Superior Court

trial court judge in the Troxel case, who decided that,

in making sense of the issues before him, it would be

useful to “'look back at some personal experiences. . .

.’” [Troxel v. Granville, 530 US 57 (2000), at 61.]

Looked at broadly, the Troxelogical bias is a tendency

to make sense of what is going on in the lives of others

by examining the events in their lives as though what

we have learned in our own lives can be applied to the

lives of others.

3. The third of the “newly named” biases operates dur-

ing the closing stage of the evaluation—the stage at

which many evaluators formulate their recommend-

ations. It is the Neuman Bias, named after Alfred E.

Neuman of “What, me worry?” fame. This bias is re-

flected in recommendations that are little more than ex-

pressions of naive optimism for which no basis can be

found in the record. A common example is the joint cus-

tody recommendation—the foundation for which is the

unsupportable prediction that parents who have been

unable to agree on the day of the week for the last five

years will develop the motivation and skills needed to

engage in cooperative co-parenting.

4. The Imperium curia bias is a baseless belief in the

power of the court; specifically, the belief that anything

that the court orders can be accomplished. The exam-

ple that follows has been taken from a report. A re-

commendation for joint custody is followed by this

statement: “The authority of the court should be used

to get Mr. and Mrs. X to engage in cooperative co-par-

enting. Each parent is intelligent, each parent is edu-

cated, and each parent presumably respects the legal

system.”

5. The UPAE* bias [*Unfortunate Past As Excuse] re-

fers to a tendency to permit sympathy for parents with

unfortunate pasts to influence evaluators in the formu-

lation of their recommendations. Example, from a re-

port: “The Court’s attention is called to the historical

information appearing on pages X – X+12 of this report.

During the period in the lives of young girls that most

are enjoying their emerging sexuality, Sally’s childhood

was marred by . . . .” It is not within the scope of eval-

uators’ authority to grant absolution to parents whose

deficiencies are attributable to their mistreatment at the

hands of others and to censure those whose deficien-

cies seem to have been self-cultivated. The evaluative

task is descriptive in nature: It is to assess the parent-

ing strengths and deficiencies in each parent as they

relate to the needs of the specific child(ren) whose cus-

todial placement is in dispute, to describe those stren-

gths and deficiencies, and to articulate the ways in

ASK THE EXPERTS | 46

which they relate to each parent’s ability to meet the

needs of the children.

6. Intervention bias refers to an inclination to provide

therapeutic intervention in the midst of a forensic evalu-

ation. An example follows. The quoted words have

been taken from an evaluator’s deposition. In the midst

of a lengthy evaluation, an evaluator endeavors to

“arrange a deal [with the children].” Under the terms of

this deal, the evaluator will submit an interim recomm-

endation suggesting that the children “not have to

spend as much time [with their father].” In exchange,

the children would have to “behave, be lovely child-

ren... [and be] respectful and courteous” when with

their father. The evaluator described the negotiations

with the children as an “effort in a therapeutic-type ba-

sis...” and added: “I’m trying to improve the circum-

stances between the children and their father….”

What the evaluator has described is an effort to im-

prove the interpersonal dynamics between the children

and their father. This “therapeutic-type” undertaking

compromises the evaluator’s ability to perform the ass-

igned task—to function as an impartial, objective eval-

uator.

7. Those affected by the coniectura interdictum [pro-

hibited influence] bias seem to believe that there’s no

such thing as too much information. As a result, they

tend to accept and consider all information provided by

litigants without considering the possibility that some of

it may have been illegally obtained or altered and of a

type that evaluators should not consider. We are obli-

gated to articulate the bases for our opinions. In many

jurisdictions we would be prohibited from alluding to

inadmissible material in order to meet this obligation. If

an evaluator who has already been influenced by inad-

missible information were to be prohibited from discus-

sing the information, s/he would be unable to meet the

obligation to articulate the bases for his/her opinions,

and a motion might be made to preclude his/her testi-

mony.

8. Associative bias refers to a positive bias that deve-

lops when evaluators discover that they share beliefs,

interests, or experiences with one of the litigants but

not with the other.

9. Evaluators display empathy bias when they disre-

gard parental behaviors that have negative conse-

quences for children simply because the evaluators

have empathy for the parents who have engaged in the

behaviors and because the evaluators can imagine

themselves behaving in a similar manner. [Empathy:

the intellectual identification with or vicarious experi-

encing of the feelings, thoughts, or attitudes of ano-

ther.] Mrs. Hurt, angered by her husband’s sexual re-

jection of her and his use of videos of other women as

a masturbatory inspiration, installs a hidden video cam-

era in Mr. Hurt’s den, videotapes him as he mastur-

bates, copies the tape, and distributes the tape to Mr.

Hurt’s co-workers. Mr. Hurt loses his job. He is the sole

breadwinner in the family. The female evaluator states

that she “can understand why Mrs. Hurt did this.” There

is no further discussion of Mrs. Hurt’s actions.

10. Evaluators display marital mindset bias when their

attention is focused on each litigant’s strengths and de-

ficiencies as a spouse, rather than on each litigant’s

strength and deficiencies as a parent.

ASK THE EXPERTS | 47

September 2010

Ten Tips for Cross-Examining a Child Custody Evaluator*

Timothy M. Tippins, JD, Albany, New York

1. Ask only leading questions

By using leading questions—and only leading ques-

tions—you can limit the possible answers to "yes" or

"no" (or "I can’t answer") and thereby limit the witness’s

ability to deflect or divert or, worse yet, give a speech

that hurts your case. You limit the damage the witness

can do with the answer. Leave "who," "what," "when,"

"where" and "how" questions to your direct examin-

ations.

2. Never allow the witness to explain

This limits the witness’s ability to volunteer damaging

information or opinions.

3. Use “tie-down” questions to close all doors be-

fore asking the payoff question

Your objective is to "force" the witness to answer the

ultimate question in your sequence in a particular way.

You need to close off all avenues of escape or diver-

sion before reaching the payoff.

4. Know as much or more than the expert

Do not attempt to cross-examine an expert witness

unless you know as much as or more about the wit-

ness’s discipline than does the witness—or at least the

slice of that discipline that is relevant to the case. How

do you do this? The same way you (presumably) got

through law school: study, study, study. You must read

the literature of the expert’s discipline. Where resourc-

es permit, engage an expert as a trial consultant to give

you a crash course on what you need to know and to

help you construct your cross-examination.

5. Educate and persuade

You must keep in mind that the overall purpose of your

cross-examination is to educate the fact-finder as to

those elements that are favorable to your side of the

case and to persuade the fact-finder that those ele-

ments compel the conclusion that your client should

prevail. Thus, if a question or a line of questioning does

not contribute to these objectives, then you must ask

yourself whether you really want to use that particular

material.

6. Keep your eye on the fact-finder

In the communications field there is a concept known

as audience analysis. You need to keep your eye on

the fact-finder as you cross-examine to gauge the im-

pact. Be prepared to abandon a line of questioning if it

is not having the desired effect on the court. Remem-

ber, as they say in show business, “If they ain’t laugh-

ing, it ain’t funny!”

7. Start strong, end strong

There are a couple of more well-entrenched principles

of communication that the cross-examiner should keep

in mind. These are the principles of primacy and

recency. Research suggests that when the mind is ex-

posed to a sequence of data, greatest weight is placed

on what is heard first and what is heard last. So, decide

which of your points are the strongest and position

them first and last in your cross, sandwiching less im-

portant lines of questions in between.

8. Use repetition

With attribution to Thomas Aquinas as well as to the

Apache tribe, it has been said that “repetition is the

mother of learning.” Use repetition to make your point

as strongly as possible. Obviously, you can’t just keep

repeating the same question to get the repetition you

want but you can build it into related questions, using it

as an anchor, so the fact-finder hears the damning

statement several times.

9. Be aggressive—not obnoxious

Pursue the content of your cross-examination aggress-

ively but do not be obnoxious. If you have carefully

designed each question, the witness will pretty much

be held to “yes” or “no” responses. You must deal with

witness resistance aggressively, moving to strike and

even cutting off the witness when it is obvious that

something other than “yes” or “no” is at hand, and by

seeking admonitions from the bench that the witness

must be responsive. But this does not mean that you

go out of your way to demean the witness. Treat wit-

nesses with respect and courtesy unless they prove

themselves undeserving of same. Let them be the

ones who jump ugly.

ASK THE EXPERTS | 48

10. Keep your ego out of it

Difficult though it may be, you need to keep your ego

out of the process. If the witness gets snarky, do not

respond in kind. In fact, be glad when you encounter

such boorishness as it only detracts from the witness’s

credibility.

*Excerpted with permission from Tippins, T.M., Cross-Exam-

ination: A Trial Prep Checklist - 37 Principles of Cross-Exam-

ination, published by MatLaw Systems Corp. 138 LeBarron

Road, Hoosick Falls, NY 12090 (1-800-416-8477).

ASK THE EXPERTS | 49

September 2010

Ten Tips for Surviving Cross-Examination

Timothy M. Tippins, JD, Albany, New York

1. Do a good job—right from the start

Contrary to what many seem to think, effective cross-

examination has nothing to do with “trick” questions. An

effective cross capitalizes on mistakes that the expert

has made long before coming to court. Failure to con-

form methodology to professional guidelines, failure to

anchor inferences in the published research, and fail-

ure to safeguard against bias through exploration of

multiple hypotheses are just a few of the recurring

weaknesses observed in the evaluation and report pro-

cess. These are deficiencies that need to be avoided

as part of the evaluation process. Once they have

occurred, the “facts are frozen,” the witness is vulner-

able, and embarrassment is likely. Therefore, your

most important safeguard against embarrassment be-

gins long before you ever go to court by avoiding such

mistakes. Start thinking about cross-examination at the

very outset of your evaluation process and keep think-

ing about it with every step you take. “How can I defend

this if challenged?” is a question you should ask your-

self at every turn in the process.

2. Tell the truth

Obviously and thankfully, outright perjury by custody

evaluators is relatively rare. But there is more to “telling

the whole truth” than simply not lying outright. This can

include overreaching the data, trying to evade direct

questions, rather than acknowledging weaknesses

and, perhaps most prevalent, refusing to utter the three

most dreaded words of all: “I don’t know.” There ought

to be no embarrassment is saying those words, parti-

cularly when you can honestly say: “I don’t know be-

cause the empirical research of my discipline does not

have the answer to that question.”

3. Be open to new information

Cross-examiners are entitled to ask you to assume

certain facts hypothetically. So long as the premises

are taken from record evidence, such questions are

proper. It may be that you never heard these assumed

facts before. Even if that is the case, do not fight the

premises in the hypothetical. Assuming that no object-

ion to the question has been made and sustained, you

are required to answer. Quarreling with the premises of

the question is beyond your role as a witness; doing so

makes you appear argumentative or evasive and it

detracts from your credibility. Importantly, don’t be so

wedded to your conclusions that you refuse to consider

new facts that logically would or could change your

conclusion.

4. Know the weaknesses in your analysis

Few evaluations are “perfect,” assuming we could even

define what “perfect” means. It is not unusual that the

information supporting the conclusions is weak or that

the research supporting the inference is controversial.

Thinking through these problems, recognizing them in

advance, avoiding the over-reach in the first instances,

and knowing the contrary literature are essential if you

are to be ready and able to confront these challenges

under cross-examination.

5. Anchor your inferences

Given what has been said above, probably the most

valuable step an evaluator can take to survive cross-

examination—and the step that in the writer’s experi-

ence is most often overlooked—is to read and apply

the empirical research of the behavioral science discip-

line. If the evaluator wants to say that parenting be-

havior A causes child behavior B, he or she should be

able to point to the empirical research that demon-

strates that to be true demonstrable knowledge, as

opposed to untested theory or subjective belief. In sum,

before forming your conclusions and putting them in

your report, go to the library.

6. Bring your entire file to court

Whether or not you receive a Subpoena Duces Tecum,

bring your entire file to court. Be sure to bring all notes,

testing materials, drawings that may have been made,

tapes, transcripts, and anything else that you received

in the course of your evaluation. Remember, you must

preserve everything precisely so they can be made

available at the time of testimony. Also bring all of your

time sheets and invoices to support whatever you have

charged for your services in the event that becomes an

issue.

ASK THE EXPERTS | 50

7. Organize everything in your file

If you have to fumble around every time a document is

requested you will be perceived as disorganized and

less than careful. The argument can be made that you

were no more careful in forming your conclusions. Re-

view your file and organize it in a way that allows you

to retrieve what you need with dispatch.

8. Approach the task with humility

Understand that every word that you utter—in your

report or in your testimony—has the potential to alter

the lives of the litigants profoundly. Any error that may

underlie your conclusions is one that you may soon

forget but which may alter the trajectory of the lives of

those you are evaluating.

9. Don’t fight the process

Experienced cross-examiners will largely hold you to

“yes” or “no” answers. They are entitled to do so under

the rules. Don’t fight the process. If you can’t answer

yes or no then simply say that. Don’t try to evade or

avoid the question, or sneak in damaging speeches

that are not responsive. Such tactics only make you

appear to be a partisan and detract from your cred-

ibility.

10. Protect your credibility

The best way to do this is to protect your integrity right

from the jump. This may be more of a challenge when

you are functioning in the role of testimonial expert for

one side rather than as a court-appointed evaluator.

Not all attorneys are as scrupulous as they should be

and may want you to “stretch” to give them what they

feel they need in the case. Don’t. Also, make sure your

fees are reasonable relative to the time required by

your assignment. If the payments you have received

are inordinate to the task, it may appear that you are

selling something more than your time.

ASK THE EXPERTS | 51

October 2010

Ten Steps on the Path to Stepfamily Happiness

Leslie Todd, LCSW, ACSW, Baton Rouge, Louisiana

1. Educate yourself before you commit

All stepfamilies are unique. Even if you grew up in a

stepfamily, your new stepfamily will be different. Pre-

paring for your new stepfamily will save countless

hours of confusion and disappointment for all involved.

Understanding the children’s positions is as important

as understanding the roles the adults will play.

2. Talk about money before you commit

Stepfamily failures are largely attributed to childrearing

and money issues. Stepfamily finances are complicat-

ed: child support money may be flowing in and/or out

of your home. Be very clear with your partner about

your prior financial obligations. Talk with your attorney

regarding spousal support, child support, or educa-

tional fund responsibilities. Figure out how you’re going

to handle “his, her, and ours” money issues.

3. Lower your expectations

The first marriage is about “us.” The next marriages are

about “them” — the children, the sets of grandparents,

the former spouses’ households, maybe even the

court. The more people, the more likely that somebody

somewhere in the system will be less than happy much

of the time. Don’t expect to please everyone, or for

everyone to please you.

4. Respect your unique perspectives

Empathy and curiosity are the traits that distinguish the

best-functioning stepfamilies. Members are genuinely

interested in listening and understanding each per-

son’s unique perspective. Members do not flinch when

their viewpoints differ, but engage in conversation that

builds trust and appreciation.

5. Have a life outside of your family

Your personal needs for love and validation are normal

and good. Rather than overloading your stepfamily with

expectations (conscious or unconscious), share your-

self with a larger community. It relieves your step-

family of having to “care too much” and also gives you

more outlets for your talents and feelings.

6. Do regular stuff together

Stepfamilies find their way by doing the normal stuff—

eating together, doing chores, enjoying sports or a mo-

vie. Kids and adults will learn how to interact with one

another over time.

7. Let the children love their whole family

This sounds easy, but if it were, family courts wouldn't

exist. Children will test out whether it’s okay to love

their parents in other homes, or may feel they have to

“prefer” your new stepfamily in order to make it work.

Show your children you are neither competitive nor

threatened; help them grow big hearts.

8. Get creative: experiment with new rituals

Rather than competing over whose rituals will win out

in an awkward hybrid, try something entirely different

now and then. A new vacation destination or a non-

traditional holiday menu allows everybody to enjoy cre-

ating a new experience together. The experiments that

don’t turn out well will be one-shots; the others may

grow into your new family’s cherished rituals.

9. Be sure each child has one-on-one time with

the biological parent in your home

Loss of this special time is the number one complaint

of children in stepfamilies. Especially in the early ph-

ase, don’t let your anxiety about “blending” override the

need to acknowledge and nourish blood-tie bonds.

10. Make time for the new marriage

Plan some regular date nights and get away from the

munchkins. You’ll be doing your kids a favor by not fo-

cusing on them ALL the time. Your new marriage de-

serves nurturing, and is the foundation on which your

new stepfamily will flourish.

ASK THE EXPERTS | 52

December 2010

Top Ten Ways to Reach Out to the Self-Represented

Pamela Cardullo Ortiz, JD, Executive Director, Maryland Access to Justice Commission, Annapolis, Maryland

1. Use a variety of means and media

The self-represented come from all walks of life, with a

range of experiences. Whether you are a court, an att-

orney or a service provider, they will seek your assist-

ance through a variety of media. Some are low-income

individuals with limited access to technology; others

have the means and inclination to seek information ov-

er the web or via text. Provide information through a

variety of delivery mechanisms to reach potential bene-

ficiaries of all ages, education levels and income.

2. Consider technology with which you may not

be personally adept

Ask an intern or a teenager at home what they do first

when they have a problem. My children have learned

everything on YouTube, from how to make paper

machine guns to how to play the theme from Benjamin

Button on the piano. My teenager uses Facebook to

collaborate with friends on math homework. Many seek

social networking groups before turning to the web.

This year’s teenager may be a respondent in a juvenile

matter with appointed counsel, but 2 to 5 years from

now may be an unrepresented parent in a custody or

child support matter. Continually reinvest in emerging

technologies for your court or court-related business to

address the needs of ever-evolving court users.

3. Provide a toll to aid users in identifying the

forms they will need

A list of forms by number or name, in legal terminology,

is not enough to guide non-lawyers. Provide an inter-

active tool, or even a list of scenarios users can scroll

through to identify which fits their situation, so they can

identify the group of forms or written materials they

need. Online survey tools, like SurveyMonkey.com,

can be used to develop a simple decision tree to guide

individuals looking for forms or other materials.

4. Pay attention to the physical environment from

the perspective of the uninitiated or those new to

the culture or language

When you walk in the door of many fast food restaur-

ants, the floor plan physically channels you precisely

where you need to go to order that burger. I visit a well-

designed museum where everyone has an identical,

comprehensive experience because you are physically

required to follow a particular path as you go through

the building. Most courts are a free-for-all where be-

wildered individuals gaze about for room numbers and

signage. Consider building a physical interface that

guides visitors to key locations. Provide signage that is

designed to guide users in plain English and in key lan-

guages.

5. Ensure online resources are in a screen-read-

able format

The blind use screen reading software to make full use

of the Internet, a real world-expanding resource for the

otherwise sensory impaired. Unfortunately, ordinary

web-content, including PDFs, may not be readable by

most screen reading software. Consult with organi-

zations serving the blind to ensure your documents are

screen readable. And don’t forget to post descriptions

of photos and scripts to accompany videos and audio

material online to ensure they are accessible to all.

6. Run a usability and accessibility software tool

to verify online resources are indeed accessible

There are software tools you can use to check mater-

ials before posting to ensure that they meet readability

guidelines and to improve their accessibility.

7. Investigate providing online chat for your court

or business

Improve the experience of web users by answering

questions in real time, through online texting. There are

several low-cost easy ways to provide this through your

site. A number of statewide legal content web-sites

provide legal advice online. It can also be used to

answer simple questions or direct users to appropriate

sections of the website. Do you offer a hotline? Con-

sider expanding the service to answer inquiries via

online chat in addition to the phone.

ASK THE EXPERTS | 53

8. Reiterate in writing what was discussed to aid

those who are stressed or have memory limit-

ations or impairments

Many disabilities are “invisible.” Individuals may have

memory impairments as the result of injury or illness.

Others may be on medication that affects their cogni-

tive functioning or ability to remember temporarily. All

of us are more prone to forget things when stressed;

and pretty much everyone involved in a family court

case is stressed. After providing information orally, give

the user a reminder in writing of what was dis-cussed

to aid them in following through.

9. Provide a feedback loop for clients, court users,

including use of an ombudsman

Listen continually to those who use your services. Pro-

vide an online survey on your website for feedback

about the site. Provide post cards in your office or at

the counter users can pick up and drop off or mail in

later. It does not have to be a scientific survey and you

do not need to publish the results. Just listen and be

aware of the issues your clients or court users face

every day and how your service is perceived. Courts

might consider providing an ombudsman who can field

concerns confidentially. Newspaper ombudsman often

maintain a blog where they respond on behalf of the

organization to debunk myths and reflect back to the

community how the organization plans to respond to

genuine issues. Courts might emulate this practice.

10. Institutionalize, rather than educate, for

change

Often we hear, “If only we could train our staff,” or “If

only we could educate our judges” how to better deal

with the self-represented. The truth is, if we have to

depend upon education to affect meaningful change,

we will have to do it over and over again, every few

months, to reach new employees and to reiterate the

culture we are trying to build. If there is a procedure or

practice that can be mandated to support that culture,

that is more likely to be uniformly adopted and to sup-

port a meaningful improvement in the way the “system”

interacts with the self-represented.

ASK THE EXPERTS | 54

January 2011

Child Support—Did You Know?

Cindy Holdren, Senior Consultant, Center for the Support of Families, Silver Spring, Maryland

Employers often have questions concerning the in-

come withholding orders they receive that are not be-

ing enforced by state child support enforcement agen-

cies. These orders are usually issued by the court, an

attorney or in some cases, by the custodial party.

The Federal Office of Child Support Enforcement

(OCSE) assists employers in finding answers to their

questions, including the ones most frequently asked

below. The list of questions and answers along with

statutory references when appropriate may be helpful

to assist the judiciary in ensuring prompt payments to

families with children.

1. Are attorneys and courts required to use the

Office of Management and Budget (OMB)-approv-

ed Income Withholding for Support (IWO) form?

Yes, all entities issuing income withholding orders or

notices are required to use the federal form (42 USC.

§666 (b) (6) (A) (i) and (ii)) promulgated by the Secre-

tary of Health and Human Services. A fillable PDF ver-

sion of the IWO may be found on the OCSE website

here.

2. Must all employer-withheld payments be sent

by the employer to the state disbursement unit

(SDU)?

Yes, child support payments payable by income with-

holding must be sent by employers to the state’s cen-

tralized facility for collection and disbursement of child

support payments, also known as the state disburse-

ment unit (SDU), for the receipt of child support (42

USC. §666 (b) (5) and (b) (6) (A) (i)). The obligor may

be ordered to make direct payments to the obligee; the

employer, however, may not be ordered to make pay-

ments directly to the obligee.

3. May the amounts ordered for child support pay-

ments be expressed as percentages?

No, payment amounts must be expressed as “sums

certain.” This allows accurate accounting of amounts

owed and paid through the SDUs. The OMB-approved

IWO form allows only dollar amounts to be entered in

the appropriate fields for current support, arrears, etc.

4. How should we handle orders with variable

terms or those mandating changes for different

time periods or levels of visitation?

Requirements that payment amounts change during

the year or as a result of visitation work well when

ordering direct payments from the noncustodial parent

to the custodial party. However, frequent or manual

handling of payroll exceptions each pay period are

onerous to employers and should be avoided; the

Social Security Act requires that states simplify the

income withholding process (42 USC. §666 (b) (6) (B)).

Any changes to payment amounts or other terms must

be done by issuing an amended IWO to the em-ployer.

5. What does this order say?

Non-standard orders may be difficult to read and

understand. Use of the OMB-approved IWO form alle-

viates this concern since employers are familiar with

the form and understand how to read and apply the

information in that format.

6. How important are child support payments to

families?

In 2009, the child support enforcement program coll-

ected $24.7 billion that was distributed to families and

children.

Urban Institute researcher Elaine Sorensen found that

“in 2007, among custodial families who received child

support, family earnings accounted for, on average,

43% of total family income, child support accounted for

40% of total family income, and other income account-

ed for 17%.”

The U. S. Census Bureau data shows that in 2007 one

quarter of single-parent households had family income

below the poverty level. The child sup-port enforce-

ment program, along with Earned Income Tax Credits

and the Supplemental Nutrition Assistance Program

(formerly the Food Stamp program), is a major source

of financial stability to families.

ASK THE EXPERTS | 55

7. How important are employers/income withhold-

ers in ensuring that payments are withheld from

the earnings and income of noncustodial parents

and sent to the children and families?

Employers/income withholders remit nearly 70% of all

child support payments collected nationally through the

SDUs. Within 2 days of receipt from employers, the

SDUs send payments to families and children—making

it the most efficient method of ensuring speedy pay-

ment delivery to families.

8. Where may I obtain more information about the

child support program in general and about spec-

ific information targeted to the courts?

Information about the child support program may be

found by visiting OCSE's website. Court-specific info-

rmation can be found here. The National Electronic

Child Support Resource System (NECSRS) is avail-

able here and is an Internet search engine that helps

users rapidly access resources from the federal, state

and tribal child support programs, state and tribal con-

tacts and includes a glossary of child support related

terms.

For more information, please contact Cindy Holdren at (240)

676-2808 or [email protected].

ASK THE EXPERTS | 56

February 2011

Top Ten Things Family Law Professionals Should Know about Child Development

David Finn, PsyD, Rolling Meadows, Illinois

1. Children are hearty

Ok, admittedly not a scientific lead off, but one that

addresses something most of us forget in child custody

cases—common sense! Most children are handed

from one relative to the next shortly after birth and after

a short maternity leave, most are bundled up for day-

care within weeks of returning home. The idea that we

must build cocoons around very young children of div-

orcing parents and restrict their contact to one primary

caregiver is inconsistent with the experiences of most

children.

2. Children can sleep at Dad’s house (part 1)

Assuming that both parents have been involved (ver-

sus paternity actions where one parent is a stranger to

the child), sleeping at the non-residential parent’s

house (usually dad’s) is fine. An important develop-

mental task for very young children is to build trust, and

having the experience of being rocked/soothed/cared

for by both parents helps them to accomplish this task.

3. Children can sleep at Dad’s house (part 2)

Back to common sense—children around the world are

put down for naptime (and comforted when they

awake) by their daycare providers. Children, from a

young age, are shipped off to grandma’s house when

mom and dad want to get some sleep. The idea that

young children of divorce will be traumatized by a night

at dad’s house, again, is inconsistent with the experi-

ence of most children.

4. Children are traumatized by traumatic events

Seeing both parents is not traumatic. Being abused is

traumatic. Being withheld from a parent due to false

accusations of abuse is also traumatic. If a child is be-

ing traumatized, the court should act immediately to

provide that child safety and protection. If not, the child

deserves to have quality time with both parents.

5. Children need predictability

Young children (under 12 years old) are concrete think-

ers. This is why they don’t understand conceptual

ideas such as “being good” or “clean your room.” Very

young children (under age 7) likewise don’t understand

“typical” parenting time allocations (once or twice

weekly and every other weekend). These children

benefit from parenting time plans that are regular and

routine. Give them a calendar or chart in clear view with

different colors for “days with mom” and “days with dad”

to help them understand.

6. Stress hurts children

Children are neurologically and developmentally im-

pacted by stress and tension from a very early (pre-

verbal) age and possibly in-utero, as well. The court

process accommodates the needs and rights of the

parents to a greater degree than it does for children

who are distressed and need help NOW. Work with

your family court system to implement interventions for

distressed children and parents while litigation is on-

going to facilitate stress relief and reduction. Be aware

of your local resources, such as Rainbows, that work

with children who have experienced divorce.

7. Separation anxiety is normal

As very young children (12 to 18 months) gain an un-

derstanding that people and objects exist even when

they’re not present (this is when you can’t merely hide

the keys or cell phone anymore!) they become anxious

at separations. THIS DOES NOT (necessarily) RE-

FLECT ON THE PERSON THEY ARE BEING TRAN-

SITIONED TO. Daycare staff and kindergarten teach-

ers see this on a daily basis. The better a parent handl-

es the transition, the better the child will handle the

transition.

8. Parenting plans need some flexibility and creat-

ivity (part 1)

We all know that a 6 month old has different needs than

a 6 year old or a 16 year old, but we are stuck within a

system that requires a parenting plan be identified for

RIGHT NOW. These plans are important, but we

ASK THE EXPERTS | 57

should build in some provisions (parenting coordinator,

parenting therapist) for revisiting the plan at specified

intervals (yearly) to make minor (not sweeping) adjust-

ments. While it should be clear that this revisiting is not

for the purpose of modifying custody, an extra night

with mom or dad for an adolescent child is something

that may be worthwhile to consider accommodating.

9. Parenting plans need some flexibility and creat-

ivity (part 2)

Be willing to think “outside the box” for your parenting

plans. Some of these non-standard arrangements may

include isolating overnights (i.e. 6pm until 9am) for very

young children or allowing each child in a 2+ child fam-

ily to have separate “alone” time with each parent dur-

ing the week/month.

10. Violence damages a child’s development

Violence, either observed or experienced, has pro-

found effects on a child’s emotional and psychological

development. If there are allegations of violence, these

should be assessed by a professional trained in

domestic violence immediately and offending parents

should be required to enter appropriate treatment. The

children should also receive counseling if indicated.

Educated and caring professionals routinely misunder-

stand domestic violence. Rely on your local experts

with specialty training in this area to make assess-

ments and recommendations.

Dr. David Finn, a licensed clinical psychologist, is the owner and

director of the Associates in Human Development Counseling in

Rolling Meadows, Illinois. He specializes in working with high

conflict families and is regularly appointed by local courts to

conduct custody evaluations or facilitate therapeutic inter-

vention. Dr. Finn has expertise in assessing claims of alienation,

domestic violence, and other forms of abuse. He has been

privileged to have served as a guest speaker on these and other

related topics including child development and working with high

conflict never married litigants to various local and national

groups. When not working, Dr. Finn enjoys spending time with

his spouse and young children in their Chicago-area home.

ASK THE EXPERTS | 58

March 2011

Ten Points of Consideration for Family Law Professionals about the Voice of the Child

Lorraine Martin, MSW, RSW, Hamilton, Ontario, Canada

1. The “voice of the child” has come to synonym-

ous with the views and preferences of the child

It should have a larger meaning and should include the

child's experience of the parental separation and its

aftermath.

2. When seeking the voice of the child, we need to

ask whose needs we are meeting

Are they the court’s or the needs of the litigation pro-

cess? Shouldn’t the needs of the child be considered

first?

3. The protection vs. rights debate

Some practitioners believe children need to be protect-

ed from the parents’ conflict and the adversarial nature

of litigation and should not be drawn into the fray.

Others believe, just as strongly, that children have the

right to have their voice heard and cite the UN Conven-

tion on The Rights of the Child which has codified this

right. In fact, most jurisdictions have included this right

in one form or another.

4. There is no consensus on whether there is qua-

lity research to support children’s participation in

family law proceedings

Some researchers think there is, others do not.

5. Memory can be inaccurate, views of children

can be influenced by many factors

Therefore, a single interview at one point in time is like-

ly to not be reliable.

6. Context is everything

The complexity of the child's family situation, history,

attachments, alignments and the nature of the inter-

viewing dynamics all contribute to a child's voice.

7. How should the voice of the child be sought?

Through judicial interview, the lawyer for the child, child

testimony, the custody evaluator, the mediator? How,

rather than if, seems to be the status of the current de-

bate.

8. What should be done with the information once

it has been gathered?

Is it to be entered as evidence? Can it be entered as

hear-say? If a child testifies, should a parent be able to

cross-examine?

9. Does the level of conflict between the parents

and/or a child’s refusal to see a parent influence

the weight to be given to the child’s voice?

A good assessment should be conducted to determine

the extent to which (if) the parents' conflict is influenc-

ing the child's voice. If the child is resisting or refusing

contact, the reasons for the strained relationship need

to be explored.

10. Interview skills are critical when interviewing

children of all ages, but particularly young child-

ren

Specifically, it is very important that the interviewer

avoid any display of attitudes or beliefs about the child

or the event(s) in question and is accepting of any type

of response the child provides, regardless of whether

the response conforms to the beliefs or opinions of the

interviewer.

ASK THE EXPERTS | 59

April 2011

Ten of the Toughest Challenges in Parenting Coordination Work

Christine A. Coates, MEd, JD, Boulder, Colorado, Robin M. Deutsch, PhD, Wellesley, Massachusetts, and Matthew J. Sullivan, PhD,

Palo Alto, California

1. Fees, please!

Never commence work on a case until you have retain-

ers in the bank. Never continue to work on a case when

one or both parents have exhausted that retainer. Have

an office policy that demands that the retainer is

refreshed when it falls below four hours of your hourly

rate. If you cannot adhere to these rules, you should

probably not do PC work. We are there to help our cli-

ents with boundaries and need to model how to do that.

2. One parent who continually violates custody

orders, agreements between the parents, and PC

rules and directives during the process

When both parents are non-compliant, PC is not a pro-

cess that will serve that case, and chaos and anarchy

will reign. When only one parent is non-compliant, the

work is challenging as the PC’s sanctions and deci-

sions are one-sided (leading to a perception by the

offending parent that you are biased), and the other

parent is often frustrated that you allow their co-parent

to get away with the breaking rules that the non-offend-

ing parent is following.

3. Having a parent file a complaint with your pro-

fessional licensing board/professional organiza-

tion while you are still active in their case

Can you continue to act in an objective, unbiased

manner in the PC role? If not, you must withdraw from

the case. If you think you can, consider how the review-

ing agency will view the fact that you are now in multi-

ple roles—PC and subject of professional review.

4. Not having the support of the judiciary

Not infrequently, clients object to a PC’s recommend-

ations and decisions or make grievances to the judicial

officer who is involved in the case. Knowledgeable and

supportive judges are able to keep parents from under-

mining the process and the authority of the PC. Make

it a point to reach out to judicial officers in your juris-

diction and educate them about the nature of PC work.

This will help reduce the likelihood of being under-

mined.

5. Having an attorney who is not collaborative

The first place an unhappy client voices concerns is to

the attorney. Thinking of attorneys as part of your

“collaborative team” means educating them about the

process and informing them prior to contact from their

client when you know the client is becoming hostile.

This is an effective way to keep the client in the pro-

cess.

6. Dealing with a “true” domestic violence case

The AFCC Guidelines for Parenting Coordination take

great care to urge caution in taking on domestic vio-

lence cases where intimidation, power and control

continue to be evident post-separation. The engage-

ment between perpetrator and victim in a less-formal

alternative dispute resolution process, such as parent-

ing coordination, can actually facilitate ongoing dom-

estic violence in such cases.

7. The helping hand strikes again

PCs occasionally need to address problems created

when a child’s therapist has been procedurally biased

(only dealing with one parent and the child) or who is

completely aligned with one parent in the case. These

therapists can be part of the problem and should be

confronted with their biases and possibly asked to end

their roles. The new AFCC Guidelines for Court-Involv-

ed Therapy can be a useful tool in confronting thera-

pists with such problematic professional conduct.

8. One parent is uninvolved

In most jurisdictions, and in most private consent

agreements, the PC cannot force or mandate partici-

pation in the PC process. Often the PC feels pulled by

the participating parent who is raising real concerns but

cannot get any communication going. It is tempting for

the PC to rule without the input of the uninvolved par-

ent. If one parent refuses to participate, the PC should

resign and/or the other parent can seek assistance

from the court.

ASK THE EXPERTS | 60

9. The antisocial parent

This parent will often not comply (unless it benefits his

or her agenda), will recount an event with a spin that

makes him or her look good, will deny what others have

observed, will have no remorse, and will present them-

selves as charming until challenged. Managing this

person requires clear limits and expectations, and clear

sanctions for noncompliance.

10. Balancing the work load

Do not have too many active cases at a time as individ-

ual case demands can vary significantly over time.

Before accepting a case, inquire into the immediate

needs of the parents. If you have a lot on your plate

already, regretfully decline the case. You’ll be glad you

did. Self-care is very important to avoid burnout and to

be an effective PC.

ASK THE EXPERTS | 61

May 2011

Ten Tips for Legal and Mental Health Professionals Involved in Alienation, or Alleged

Alienation Cases

Barbara Jo Fidler, PhD, Toronto, Ontario, Canada, Nicholas Bala, JD, LLM, Kingston, Ontario, Canada, and Michael Saini, PhD,

Toronto, Ontario, Canada

1. Screen and identify parent-child contact pro-

blems early

Just as there are different types and degrees of inti-

mate partner violence and high-conflict, there are many

reasons for a child to resist or refuse contact, including

an age or gender appropriate affinity, initial alignments

due to anger related to the separation, adaptation to

the situational factors caused by the separation, or a

justified rejection (realistic estrangement) due to vio-

lence, child abuse or neglect or inept parenting. Alien-

ation is a child’s expression of un-reasonable and per-

sistent negative feelings and beliefs (such as anger,

hatred, rejection, or fear) toward a parent that is dispro-

portionate to the child’s actual experience with that

parent. Many cases have elements of both alienation

and justified rejection. Intentional and unintentional

parental alienating behaviors by mothers and fathers

are common in high-conflict separations; however,

despite such parental conduct, many children do not

become alienated from either parent.

2. Triage, for an expedited and differentiated res-

ponse

Delays and ineffective legal and mental health inter-

ventions are likely to entrench family problems and

make them more difficult to remedy. A differentiated

response is required, depending on the reasons for

and the severity of the strained parent-children rela-

tionship and the factors that are contributing to the con-

tact problems, including the degree of parents’ inten-

tionality and responsiveness to the child’s needs. If a

child’s resistance to visitation results from parental

abuse or neglect, this needs to be identified as early as

possible with appropriate protection plans put in place

for the victimized parent and child. Mild and some mod-

erate alienation cases may respond well to early inter-

vention involving education and therapy, while these

are likely to be ineffective in more severe cases and

may even exacerbate the problem. In severe alienation

cases, the alienating parental conduct is emotionally

abusive, often resulting from personality disorders and

destructive enmeshed parenting. In these severe cas-

es, where less intrusive remedies have failed and the

rejected parent can adequately care for the child, a

custody change may be warranted. This is similar to

child protection cases, where children may be appre-

hended from a parent due to severe mental health

issues that significantly interfere with parenting capa-

city. To permit the child to reestablish their previously

loving relationship with the rejected parent, the change

in custody is likely to require temporary suspension of,

or supervised contact with, the alienating parent, and

may require therapeutic support.

3. Listen to the voice of the child

Often, children benefit from being heard and, while not

determinative, their wishes and preferences are one

important factor in the best interests test. Most child-

ren, though, do not want to choose between their par-

ents. In alienation cases, children are unduly influenc-

ed by the favored parent, although the children will in-

sist on the independence of their perspectives. Child-

ren’s preferences often reflect the immediate future

and do not always reflect their long-term best interests.

Even within the complexity of these cases, it is import-

ant for children’s voices to be heard.

4. Employ a two-pronged approach, involving

both the court and the mental health practitioner

When parent-child contact problems are identified, a

case should be referred to effective case manage-ment

by a single family law judge at the pre-resolution, resol-

ution and enforcement stages of the court process.

Mild and moderate alienation cases are likely to benefit

from judicial exhortation and encouragement towards

counseling and settlement on a basis that has both

parents involved in the child’s life. Often, the judge will

need to include clear expectations and consequences

for noncompliance, which can include specific sanc-

tions or a custody reversal in the most severe cases.

ASK THE EXPERTS | 62

Accountability for behavior is less unlikely if the parents

face different judges throughout the process. Some de-

gree of reporting back to the court by therapists is

necessary to ensure treatment compliance and resolu-

tion of the contact problem.

5. Judges need to effectively enforce all orders

Many alienating parents have personality disorders or

related characteristics. Judges must follow through on

violations of orders with appropriate responses to fail-

ures to comply. Not doing so only reinforces the par-

ent’s narcissism and disregard for authority and rules,

characteristics that can be mirrored by alienated child-

ren.

6. Involve all family members in treatment, not

only individuals

If abuse and violence have been ruled out, intervention

for mild and moderate cases usually needs to include

both parents and all children. While more than one

therapist may be necessary, individual therapy for the

child alone is unlikely to resolve the parent-child con-

tact problem, and may well exacerbate the problem.

7. Maintain open communication between all pro-

fessionals to avoid professional alignments

Many professionals (e.g., therapists, child protection

workers, lawyers, teachers, physicians, etc.) are typi-

cally involved in cases involving high conflict or alien-

ation. Mirroring the dynamics in the family, alignments

amongst these various, well-intentioned professionals

are common. To minimize this risk and to better assist

the family, the order or treatment contract must indicate

that there is no confidentiality and the treating profess-

ionals are permitted to exchange information with each

other and the courts. Sometimes, a parenting coordi-

nator or case manager is necessary to facilitate this

process.

8. Avoid dual roles

Often, mental health professionals are asked by the

court or lawyers to make recommendations about a

parenting plan that will promote the best interest of the

child. Those who have been involved in providing ther-

apy to a parent or child may be called as witnesses, but

because of their therapeutic allegiances, they should

not perform a custody or visitation evaluation, or ex-

press global views about the child’s best interest. Once

it has been determined by a court or agreed by the par-

ents that it is indeed in the child’s best interest to have

contact with the rejected parent, irrespective of the

cause of the problem, the therapist’s role is to imple-

ment a previously agreed to or ordered schedule. Putt-

ing the therapist in the role of offering therapeutic sup-

port and then offering opinions as to the child’s best

interest compromises their role and effectiveness. An

order or consent order for therapy accompanied by a

treatment contract is required. (See the AFCC Guide-

lines for Court-Involved Therapy.)

9. Interdisciplinary training and collaboration are

best

Specialized training and ongoing continuing education

in high-conflict, alienation and intimate partner violence

is imperative. Cross-disciplinary training will assist pro-

fessional collaboration and recognition of the unique

roles and responsibilities of each professional, thereby

promoting an open-mind to different perspectives. Eff-

ective multi-disciplinary collaboration can prevent pro-

fessional alignments and splitting.

10. More research and further development of in-

terventions are needed

While there has been a significant increase in know-

ledge, there is clearly a need for more empirical studies

to explore the etiology, prognosis and factors that con-

tribute to strained parent-child relationships after sep-

aration. With the growing number of options for inter-

vening in alienation cases, much more attention is

needed to develop efficacy and effectiveness-based

evaluation to determine what works, for whom, and in

which circumstances. A greater emphasis on evid-

ence-based approaches would provide for better in-

dividualized decisions by integrating empirical evid-

ence with practice wisdom and the unique context-

ualized factors of each case.

ASK THE EXPERTS | 63

June 2011

Creating a Circuit-Supported Family Program

Linda B. Fieldstone, MEd, Miami, Florida, and Michelle Artman-Smith, Esq., Bradenton, Florida

Specialized services, such as social investigations,

evaluations and parenting coordination, provide assis-

tance to parents and children involved in court pro-

ceedings and better inform judicial decisions on those

cases. It is possible to provide these services through

a court-based program, utilizing minimal funds and/or

community-based support. The following details should

be considered when planning and developing a court-

based program:

1. Assess the needs of the court and of families ser-

viced to develop a program that takes minimal time

from court staff.

2. Support from the judiciary is essential. Schedule a

meeting to describe the program benefits to parents

and children, as well as the court. Once they see the

advantages, they can help to gain support from the

Administrative Office of the Court.

3. Designate a court program manager or liaison if an

outside entity will be running the program. Thinking

small can make a big difference. If the service cannot

be provided by court staff, staff could keep a list of org-

anizations in the community that can provide that ser-

vice.

4. Uniform procedures will ease implementation of the

program. Create a Standard Order of Referral in which

the judge determines the party responsible for pay-

ment.

5. Make sure that the order takes into account the curr-

ent conflict level of the parties, considering history of

domestic violence and abuse, and addressing potential

safety concerns.

6. Develop a program manual with policies and pro-

cedures to avoid conflicts of interest and other ethical

dilemmas.

7. Create an application process where professionals

who apply as providers must meet certain qualifica-

tions.

8. Create an advisory committee, review board or over-

sight committee to provide guidance and support.

9. Develop mandatory circuit-specific training and facil-

itate ongoing training for providers. Create a listserv for

providers so they can give each other support.

10. Keep the channels of communication open bet-

ween the judiciary and families served in order to get

comments and feedback about the program and pro-

viders. Use this feedback to make adjustments.

Those interested in starting a program in their court

system might be interested in the AFCC publication,

Innovations in Court Services, which chronicles six

court programs designed to address the challenges

presented to courts in providing quality services to

families in conflict. This volume details program design

and provides the framework to develop and implement

each program.

Order now. The appendices for this book are available

online.

Linda Fieldstone, MEd, Supervisor of Family Court Services of

the 11th Judicial Circuit in Miami-Dade County, Florida and

Michelle Artman-Smith, Esq., ADR Director of the 12th Judicial

Circuit in Manatee County, Florida, contributed to the Florida

Chapter Task Force on Social Investigations and Parenting Plan

Evaluations by developing a step-by-step guide to implementing

a court-based program.

ASK THE EXPERTS | 64

July 2011

Ten Reasons the Hague Abduction Convention May Not Be Enough

Leslie E. Shear, JD, Los Angeles, California

In cases where a child may travel, visit or move outside

the United States, family law professionals usually ask

whether the destination is a signatory to The Hague

Convention on the Civil Aspects of International Child

Abduction. That is not enough to know, if one is asses-

sing the risk that the child will not be returned to the

United States. Here are ten reasons why knowing that

the destination is a “Hague country” may not be en-

ough.

1. Not every country that is a signatory is a US

treaty partner

As new nations adopt the treaty, there is a process by

which each country decides whether to accept a coun-

try’s accession to the convention. Until the US accepts

a new signatory’s accession, the treaty is not in effect

between the US and that country.

2. The treaty does not require recognition and en-

forcement of custody orders

The Convention has no provisions for recognition and

enforcement of custody orders. It applies whether or

not there is a custody order in place. The treaty creates

the summary remedy of “return” (similar to extradition)

to compel the return of a child who has been wrongfully

removed or retained back to the country of the child’s

habitual residence so custody can be determined un-

der the laws of that country.

3. The treaty does not protect children age 16 and

older

Once a child reaches age 16, the Convention no longer

applies. If the child reaches age 16 during return pro-

ceedings, the case must be dismissed.

4. When the child moves, the treaty offers little or

no remedies for a left-behind joint custody or non-

custodial parent

The Convention is based on the premise that the place

of the child’s “habitual residence” should decide cust-

ody. Even if there is a court order or agreement, iden-

tifying a particular country as the child’s “habitual resid-

ence,” it is not binding. Rather, at the tribunal hearing

a Hague Convention petition must look to the facts and

circumstances at the time of the child’s removal to de-

termine the habitual residence. Some countries have

held that when parents have joint custody, habitual re-

sidence shifts each time the child moves back and

forth. This means that if the child is with Parent A, the

courts of that country can ignore the joint custody or-

ders and make new custody orders. If Parent A has

moved abroad with the consent of the other parent, or

court approval, the country where the child lives will

exercise child custody jurisdiction.

5. The exceptions to return under the treaty are in-

creasingly being broadly construed

The Convention was drafted 30 years ago with a focus

on abductions by non-custodial fathers. However, it

turned out that the Convention is used more often by

left-behind fathers after custodial mothers move

abroad with the children. There have been several

trends unanticipated by the drafters. Although the Con-

vention offers the remedy of return only in cases where

the child’s removal violated the left-behind parent’s

“rights of custody,” the definition of “rights of custody”

has been greatly expanded. Similarly, although the

exception to return where the child has been gone for

more than a year and is settled in the new environment,

has a mature preference not to return, or where return

would place the child at grave risk of physical or psych-

ological harm are being more broadly construed to pre-

vent return.

6. Many Hague signatory countries have poor

Hague compliance

Experts estimate that only about half of the petitions for

return brought under the treaty result in orders for the

child’s return. This estimate does not include voluntary

compliance. The US State Department publishes an

annual report for Congress detailing compliance stat-

istics and patterns for the US and its Hague Abduction

Convention partners. Those reports are sometimes

criticized for minimizing problems.

ASK THE EXPERTS | 65

7. Only about half of the Hague return orders are

actually enforced

Many countries have no effective mechanisms for en-

forcing their own custody orders. Experts estimate that

only about half of the orders for return under the treaty

are ever enforced.

8. Litigation under the treaty can be costly and go

on for years

Some countries offer legal services to left-behind par-

ents and others do not. While return proceedings are

intended to be summary in nature, some cases drag on

for years. Moreover, if the parent takes the child to yet

another country, the entire process must begin again

(and there is no real remedy if the child is taken to a

non-Hague country).

9. The “access” provisions of the treaty have no

teeth

The Convention contains provisions permitting a left-

behind non-custodial parent to petition for “access”

(visitation). However, the treaty provides no criteria for

access petitions, and essentially “access” petitions are

merely requests for visitation under the laws of the hab-

itual residence.

10. In cases where a child is wrongfully removed

to the US, the UCCJEA often provides better re-

medies

The Uniform Child Custody Jurisdiction and Enforce-

ment Act requires US states to recognize and enforce

many, if not most, foreign custody and visitations or-

ders without modifications. Defenses to UCCJEA en-

forcement are narrow. Enforcing a foreign custody or

visitation order in the US is often the most effective

remedy when a child has been brought to or kept in the

US in violation of that order.

Leslie Ellen Shear is certified by the State Bar of California

Board of Legal Specialization as a specialist in family law and

appellate law, and is a Fellow of the International Academy of

Matrimonial Lawyers.

ASK THE EXPERTS | 66

August 2011

Top Ten Tips for Judicial Interviews of Children

Hon. Denise Herman McColley, Napoleon, Ohio

In most jurisdictions, judicial officers are allowed to

interview or speak with children in the process of their

parents’ divorce or custody litigation. Ohio is somewhat

unusual in that judicial officers are generally required

to interview children upon the request of either party or

at the court’s discretion. As one might imagine, this law

results in judicial officers interviewing children of all

ages. Positive aspects of interviewing children include

allowing the judicial officer to actually meet and learn

first-hand about a child for whom he or she is about to

make life-changing decisions; permitting the child to

meet the judicial officer; and allowing the child to feel

he/she has been part of the process of determining

his/her future.

Although certainly not exhaustive, here are a few point-

ers that may be helpful to a judicial interviewer:

1. No matter what the law is regarding interviewing

children in a particular jurisdiction, it is important to

focus on the purpose of the interview. In general, an

interview is not to determine what the child states that

he or she wants, but rather to determine his/her wishes

and concerns.

2. Consider developing a “script” of topics that you will

use for interviews. It is helpful to ask similar questions

of each child. Once you have developed the questions

you wish to ask, it becomes easier to follow the script.

In doing so, you insure that you do not miss something

that is important to discuss with the child.

3. Remember the age and the cognitive abilities of the

child. Even though you will want to follow a script of

some sort, the interview may be very different for each

child, depending upon his/her age, cognitive abilities,

and maturity. For instance, a very young child might be

asked to draw a picture of and tell the interviewer the

names of everyone who lives in daddy’s house and

everyone who lives in mommy’s house. An older child

may just be asked that question.

4. Some issues you may want to consider with a child

are as follows:

 Who does the child identify as being in his/her

family?

 Where does he/she go to school? Is he/she

involved in other activities? What does he/she

enjoy or dislike about school, extracurricular

activities or church? Are there activities in

which he/she wants to be involved in the

future?

 Who participates with him/her in various

activities or who takes him/her to appointments

to school, or to church?

 What are the child’s goals and who is best able

to assist the child in obtaining those goals?

 What sort of rules does each parent have?

 Do the child’s parents communicate with one

another?

 Is it important to a child that his/her siblings

have the same parenting arrangements? How

would he/she feel if the arrangements were

different?

 Besides the parent, who else lives in each

household?

 What is each parent’s home like? Is it a house,

apartment, mobile home? Is it in town or in the

country? How many bedrooms? Who stays in

each bedroom? Where does the child study,

play, eat, etc.? Does the child have friends in

the neighborhood? Does the child have pets?

 How does the child get along with the

individuals in each household?

 What work/school schedules does each

individ-ual in the household have?

 Who takes care of the child when the parent or

other adults in the household are gone?

 What things does the child enjoy doing with

each parent, with the other individuals in each

parent’s household, or by him/herself when

he/she is in a parent’s household?

 What things would the child change in each

household if he/she were able?

ASK THE EXPERTS | 67

 Does the child have relatives or friends he/she

visits or with whom he/she has an ongoing

relationship? What do they do together?

 If the child were able to make three wishes (to

his/her fairy godmother/father or a genie) for

his/her family, what wishes would the child

make?

 If the child were able to live anywhere in the

world, where would it be? Who would live with

him/her? Ask the child to draw a picture of the

house/castle/home in which he/she would live

and everyone who would live in the house with

him/her.

 If the child were scared, had a nightmare or

needed advice, to whom would he/she turn or

who would he/she prefer be there to help?

 Who obtains or helps the child obtain or

purchase clothing or personal items?

 Who obtains or helps the child obtain or

purchase school supplies?

 Who attends school activities, parent-teacher

meetings, etc.?

 Is there anything the child is afraid of? Is there

anything that makes the child angry?

 Who is most likely to help the child with his/her

homework or school projects?

 Is the child able to identify his/her present

sche-dule for spending time with each parent?

 If he/she were able to make his own parenting

plan, what would it look like? Has he/she dis-

cussed this with his/her parents?

 What sort of punishment does each parent or

other adult in the home(s) use if a child mis-

behaves?

 What questions does the child have about the

process or what is happening?

 Is there anything the child would like the

judicial officer to tell his/her parents?

 Is there anything a parent or another adult

reminded the child to tell the judicial officer?

 How does the child get to and from school

when he/she is at each parent’s house?

5. Allow enough time to conduct the interview of a child.

Depending on his or her age or maturity, the interview

could be as short as 20 minutes or as long as 1-1/2

hours. Allowing one hour for each interview would be a

good rule of thumb. If there are several children, each

should be interviewed alone. If there is more than one

child, less time might be set for the individual interviews

as basic information can generally be verified with the

second or third child interviewed—e.g., “Your sister

told me that you live in a house with three bedrooms

and that you share a room–is that right?”

6. If there is a guardian ad litem and/or child’s attorney,

he or she should always be present for the interview. If

the child has a therapist or if there is a court counselor

on staff, you may consider involving that individual as

well.

7. Even though it may be permissible for parents’ attor-

neys or even parents to attend the interview, consider

excluding them. The presence of so many adults, esp-

ecially unknown individuals, is very intimidating to a

child. If requested, allow attorneys for the parties to

submit questions they would like to have answered or

concerns they would like to have addressed during the

interview. Of course, whether you ask those questions

or address those concerns or the manner in which you

do so is entirely up to you.

8. Refuse to interview a child the day of the hearing,

even though an attorney or party may request it. Set

the interview several days before the hearing. If the

child is school-aged, make every effort to schedule the

interview after school or during a school holiday. The

last thing you want is to have a child sitting in the hall

waiting to speak to the judicial officer while his parents

and any witnesses called for the hearing are also

gathered at the court.

9. Do whatever you can to make a child comfortable.

Make sure you explain the reason for the interview and

your role in the court process. Indicate how the inter-

view will be used and when and under what circum-

stances his/her parents may learn of what has been

discussed. In making arrangements for the interview,

be cognizant of the child’s age and maturity. Consider

making special arrangements for younger children,

who are generally not able to sit in a judge’s office and

answer one question after another. Decide if it is appro-

priate for you to wear a robe for the interview or if that

will make the child more uncomfortable. Older children

may be interviewed in the judicial officer’s office while

it may be best to interview younger children in a spec-

ially-prepared playroom. During interviews with young-

er children, reading books about parental separation,

playing games, coloring, drawing pictures and other

activities are more likely to promote conversation about

the child’s family.

10. Record the interview so you are prepared in the

event there is an appeal.

ASK THE EXPERTS | 68

October 2011

Top Ten Questions to Ask When Selecting a Supervised Visitation Provider

Joseph J. Nullet, Executive Director of Supervised Visitation Network (SVN), Jacksonville, Florida, and Judy L. Newman MSW, SVN

Board Member and Manager of the Supervised Access Program, Ministry of the Attorney General, Toronto, Ontario, Canada

1. Why is supervised visitation needed?

Courts will sometimes order that a child only have con-

tact with a parent when a neutral third person is present

during the visitation. Before considering a provider, it is

important to have a complete understanding of why

supervised visits may be necessary. Some of the rea-

sons may include helping to reintroduce a parent after

a long absence, allegations or a history of child abuse

and/or neglect, substance abuse, or domestic violence,

concerns about the mental fit-ness of one parent, or

threats of abduction.

2. Why not use a friend or relative rather than a

professional service, particularly when there is a

fee involved?

While there may be circumstances when friends or

family can serve as “supervisors,” the high level of

conflict in most cases requiring supervised visitation

will make it difficult for friends and relatives to refrain

from taking sides. Once neutrality is lost, then the cred-

ibility of the "supervisor" will come into question and

much of the feeling of security and safety will be gone.

It is also unlikely that family members will have suffi-

cient training in the areas of domestic violence, conflict

resolution, child abuse, and substance abuse to pro-

vide a safe, secure environment.

3. Does the provider have the training and experi-

ence to handle the specific issues of the family

needing supervised visitation?

The qualifications, training and experience of the pro-

vider are important in determining if they can safely

provide service to the family. For example, if there have

been issues of domestic violence or child abuse, the

service provider should be trained to be aware of and

sensitive to domestic violence and child abuse in the

context of supervised visitation. The provider should

have security measures in place to keep children and

parents safe. This can include staggered arrival and

departure times to prevent parents from having contact

with each other, checking bags and parcels, security

cameras, separate entrances and parking lots, written

emergency procedures, and security personnel.

4. Does the provider conduct an intake interview

during which parents have an opportunity to ex-

press their concerns and the policies and pro-

cedures are clearly explained?

An intake interview is the basis of service excellence

and safety. The intake interview sets the tone for all fut-

ure interaction. It is an opportunity to give and receive

information about the family and the circumstances

leading to supervised visitation. It is also a time to learn

about the service provider such as their policies and

procedures, their experience and qualifications for

meeting the needs of your particular case.

5. Does the provider have a clear set of written

guidelines?

Providers should have written guidelines for service.

They should have a service agreement for each parent/

guardian to sign that sets out what is expected of the

parents and what the parents can expect from the pro-

vider. There should be a form for each adult party to

sign authorizing release of information and to whom

the information is to be released. Policies should in-

clude clear notice of fees for service and reports; a

policy to keep personal identity information (e.g. add-

resses and telephone numbers) confidential; the limits

of confidentiality; and consequences of not following

policies and procedures.

6. What are the provider’s policies on document-

ation?

A provider should have written policies and procedures

regarding writing and submitting reports to the court or

referring source or other entity. And if the provider sub-

mits reports to the court, they should ensure all reports

are limited to facts, observations, and direct statements

made by the parents and not personal conclusions,

suggestions, or opinions of the provider.

ASK THE EXPERTS | 69

7. Where will visits take place?

The provider should have a secure location where

visits are conducted that is designed to protect the

safety and security of participants. If the visits are to be

conducted off site in a community setting, the provider

must have detailed procedures in place to insure safety

of all participants, and also be prepared to decline the

case if an offsite location is not suitable for the risks

presented.

8. Does the provider have a clearly defined griev-

ance procedure?

Visitation providers like any other service should be

accountable for their services. They should have a way

for you to express your concerns about the service you

are receiving. The procedure should be in writing. If you

are not satisfied with the response you receive, you

should contact your local court or whoever referred you

for supervised visitation. Some local areas and states

may have governing bodies that regulate or oversee

supervised visitation.

9. How much will services cost?

All providers should have established written policies

and procedures regarding fees for service, including

the amount and collection of fees and consequences

for failure to pay. The provider's policies regarding all

fees must be discussed with each parent prior to the

beginning of service. Providers may also have a sliding

scale structure available for parents with financial hard-

ships.

10. Is the provider prepared to handle an emer-

gency situation?

While it is impossible to prepare for every possible situ-

ation, a provider should have an active collaboration

with local law enforcement to facilitate a rapid res-

ponse; they should review security measures on a re-

gular basis and have established written protocols for

emergency situations.

For more information and tips about supervised

visitation please visit the Supervised Visitation Network

website: www.svnetwork.net.

ASK THE EXPERTS | 70

November 2011

Ten Tips for the Holidays

Robin M. Deutsch, PhD, Wellesley, Massachusetts

1. Have a very specific plan for the holidays so

there is no opportunity for confusion or conflict

Parents may alternate or split holidays, but when there

is disagreement about this plan, consider the longer

view of alternating holidays by even and odd years.

Holidays are often a time of heightened emotions, and

the reality of the loss associated with separation or div-

orce is no more apparent than when parents must

spend a holiday without their children or without old

traditions.

2. Try to continue traditions of the past for the

children

If they are accustomed to spending Christmas Eve with

one extended family, try to continue that tradition, if not

every year then in alternate years. Parents should con-

sider maintaining some of the family traditions the first

year after the separation, and alternating beginning the

following year.

3. If you can continue some traditions together,

make them clear, attending to details of who,

what, where, when and how

Some families are able to be together without conflict

arising, but parents often have different expectations

about the experience itself, as well as the amount of

time they will be together. The most important thing for

the children is that they do not experience conflict bet-

ween their parents.

4. Create new traditions that feel special to the

children and family

This is an opportunity to establish new practices for the

adult who does not have the children, such as time with

friends, volunteering, movie days and travel. This is an

opportunity for the newly formed family, as well.

5. Think long-term—what do you want your child-

ren to remember about holidays when they have

their own children?

For children, holidays are magical. It is often the little

rituals and practices that are most memorable, such as

baking a pie, playing a game or lighting the fire.

6. Remember, children’s memories include all

senses—what they saw, heard, smelled, tasted

and touched

To the extent possible, create a memory that involves

each of these senses and describe it, e.g. we always

listen to this music, eat cranberry sauce, watch this

movie, read this book, take this walk and cut these

branches. Do not allow conflict to enter into these

memories.

7. Self-care is very important

Life for the adults has significantly changed. Find new

ways to care for yourself, e.g. exercise, friends, books,

movies, clubs, martial arts, dance, classes, activities

that bring new energy and attention. You want to rejuv-

enate yourself and refocus on something to help you

reconstitute yourself in your new life.

8. Keep your expectations small and be flexible

Focus on one thing that matters most to you during the

holidays, e.g. some sense of connection to your family,

having some time with extended family or close friends,

creating a new tradition, continuing a tradition. Your

holiday time will not be the same, but you can decide

that you will have one small goal that you will work to-

ward creating or preserving. Holidays may be accom-

panied by unmet needs and dashed hopes. By thinking

small you can manage disappointment and decrease

stress.

9. Though you, the parent, may feel disoriented

and lost in the changed family, keep your focus

on the children and the new family constellations

Make the holidays about your children, which means

helping them to feel good about spending holiday time

with the other parent.

10. In ten or 20 years, what do you want to see

when you look back on these years of change?

From that long view you can highlight the tone and

experience of these transformed holidays.

ASK THE EXPERTS | 71

December 2011

Top Ten Tips for Dealing with Relocation Cases

Philip M. Stahl, PhD, ABPP, Queen Creek, Arizona

Relocation cases are often perceived as the most diffi-

cult to deal with, regardless of your role. These tips are

specific to the various professional roles in a relocation

case.

If you are a mediator:

1. Recognize that these cases are very tough to settle.

Try and encourage each parent to formulate a propos-

ed parenting plan that maximizes each parent’s time

with the children. Encourage the away parent to comm-

unicate with the children via Skype and encourage the

parent who has the children to communicate regularly

with the distant parent about the children and how they

are doing. Strongly encourage the present parent to

keep the distant parent positive in the children’s mem-

ories.

2. When considering the parenting plans, recognize

that recent research coming out of New Zealand and

Australia suggests that the biggest burdens of travel

fall on the children. Encourage the distant parent to

consider traveling to see the child at least for several

of their times together. Not only does this reduce the

burden of travel for the children but also allows the dis-

tant parent to meet the children’s teachers and friends,

and participate with the children in extra-curricular act-

ivities. Help the distant parent recognize that this will

help the children feel more connected to the parent.

If you are a child custody evaluator:

3. Familiarize yourself with all the research and psych-

ological literature on relocation and become familiar

with relocation statutory and case law in your state/

province. This is critical when considering how to app-

roach a relocation case as a child custody evaluator.

Recognize that the psychological literature identifies a

number of relevant risks and protective factors to be

considered in a relocation case. If the request is for an

international relocation, research whether the country

that the moving parent is relocating to is a signatory to

The Hague Convention and whether or not the US

State Department has identified problems with the

courts in that country supporting a valid US custody

and visitation order.

4. Many relocation cases are “close calls,” i.e., some

significant factors might favor the children moving and

other significant factors might suggest against the

children moving. When it is a close call, the evaluator

needs to identify the risks and benefits of primary cust-

ody with the mother in one location and the risks and

benefits of primary custody with the father in the other

location, and avoid making an actual recommendation.

Weighting of those factors is to be left up to the court.

The evaluator is encouraged to give alternate recomm-

endations depending on the weighting of the court.

If you are an attorney for the parent who wants to

move:

5. Be sure that your client’s reasoning for wanting to

move makes sense. Ensure that your client will be a

responsible gatekeeper and continue to encourage

and support the children’s relationships with the other

parent. Develop with your client a plan in which they

will continue to communicate with the other parent

about the children and keep the distant parent’s mem-

ory alive with the children.

If you are an attorney for the parent who wants to

prevent the children from moving:

6. Ensure that your client is prepared to be the primary

custodial parent in the event that the other parent mov-

es and the court does not allow the children to move.

If you are an attorney, regardless of which parent

you are representing:

7. Consider using a psychological consultant who can

help you learn the psychological research and litera-

ture, and identify which risk and protective factors are

ASK THE EXPERTS | 72

likely to apply in your case. Such a consultant can ass-

ist you in determining the helpful and non-helpful facts

of your case and can hopefully assist you and your

opposing counsel in settling the relocation without liti-

gation. If the case must be litigated, your consultant

can assist you in arguments to the court. If need be,

you may want an expert witness to testify about rele-

vant factors to the court.

8. Recognize that recent research suggests that child-

ren adjust to moves most easily when both parents are

supportive of the outcome and remain child-focused.

Encourage your client to stay child-focused and work

with the other parent even after the case has been liti-

gated.

If you are the judge:

9. It is critical to approach each case without bias;

either the bias that a parent should not move because

children benefit when both parents are actively involv-

ed in the children’s lives or the bias that a parent with

primary custody should be able to move for any good

reason. Recognize that each case is unique and must

be considered on all of the relevant factors in that parti-

cular case.

10. Like the custody evaluator, learn the psychological

research and literature on relocation and understand

the multiple factors that result in increased risk of child-

ren’s adjustment or may serve as a protective factor

and help the children’s adjustment in the event of a

move. Integrate that understanding with the expected

legal considerations as identified in your state’s statut-

ory and case law.

Philip M. Stahl, PhD, ABPP (Forensic) is a past AFCC Board

Member and is a psychologist in Arizona specializing in con-

sultation and child custody evaluations in relocation cases. He

is the author of Conducting Child Custody Evaluations: From

Basic to Special Issues and Parenting After Divorce. Dr. Stahl is

also the director of forensic programs for the Steve Frankel

Group.

ASK THE EXPERTS | 73

January 2012

Top Ten Tips for Handling Child Custody Cases Involving Domestic Violence

Loretta Frederick, JD, Winona, Minnesota, and Gabrielle Davis, JD, Minneapolis, Minnesota

Recent research confirms what many experienced pra-

ctitioners know: intimate partner violence can have ser-

ious effects on children who are directly exposed to the

violence or who are simply living with parents who use

violence and coercive controls to manage family re-

lationships. Increasingly, practitioners recognize that

they need to know whether these potentially damaging

qualities are present in families and to handle cases in

a way that decreases future harm to children and victim

parents. But not all domestic violence affects children

or adult victims in the same ways and, therefore, par-

enting arrangements must be tailored to reflect the

actual experiences of each family member, especially

each child. The following are tips for ensuring that chil-

dren exposed to domestic violence have safe and heal-

thy futures.

1. Determine the context and full meaning of the

violence to the family

Recognizing that not all domestic violence is the same,

it is important to find out: (a) what the perpetrator in-

tended by the violence, including whether the purpose

of the violence was to terrorize, dominate and control;

(b) what meaning the victim parent takes from the vio-

lence; and (c) what effect the violence has on the victim

parent and the children. Identifying coercive controlling

abuse is particularly critical because such abusers oft-

en parent in ways that have lasting negative effects on

children and make joint parenting very problematic.

2. Screen every case for domestic violence

Even though it seems counter-intuitive, many true vic-

tims (even those who have experienced ongoing and

serious domestic violence) decline to disclose the fact

to custody practitioners, even their own attorneys. So-

me victims feel that no one will believe them, some do

not understand why it would be relevant, some have

been told not to raise the issue, and some fear the re-

percussions of disclosure. Many will disclose only after

time and following the establishment of trust in the pra-

ctitioner, so screening at various points in the case can

be helpful.

3. Use screening tools or guides to help you screen

for domestic violence and to assess the full implic-

ations of the violence for future parenting arrange-

ments

Recent research confirms that relying on one’s own cli-

nical instinct or “gut feeling” to decide whether domes-

tic violence is an issue in a case is not a trustworthy

screening method, even for experienced professionals.

Asking behavior-specific questions is more likely to un-

cover domestic violence and elicit full disclosure than

asking general questions. There are many screening

tools and guides available to practitioners, some of

which have been designed to meet specific needs,

such as risk or danger assessment, or to be applied in

limited practice settings, such as mediation.

4. For the purpose of considering what dispute re-

solution methods will be most appropriate and

helpful in a case, understand the features and char-

acteristics of the domestic violence

Not all cases are equally well-suited for certain dispute

resolution alternatives. For example, coercive controll-

ing abusers focused on domination may be ill-suited to

participate in facilitative processes that require good

faith negotiation, full disclosure, and centralizing the in-

terests of the children. Domestic abuse may also affect

decisions about the best timing for moving from one

stage of dispute resolution to another in the case.

5. Ensure that parenting arrangements account for

the connection between the features of the domes-

tic violence (including its severity and context) and

the parenting of the abusive parent

Because the decision to use violence against a partner

may also signal problematic or even dangerous atti-

tudes and beliefs about parenting and children, it is crit-

ical to explore the extent to which the abusive parent

has engaged in behaviors that have negative effects

on the children. Familiarize yourself with the ground-

breaking writing that has been done in the last few

years on this topic. Learn about how adult victims of

domestic violence can have parenting problems that

ASK THE EXPERTS | 74

may relate directly to the abuse and what kinds of inter-

ventions can have the most benefits to the children’s

long-term welfare and the welfare of the other parent.

6. Recognize and account for the fact that families

that have experienced domestic violence are often

drawn into multiple, sometimes conflicting syst-

ems

Domestic violence cases are simultaneously or serially

processed across multiple systems, including the crim-

inal justice system, civil legal system, child protection

system, healthcare system, government benefit syst-

em, and various social service systems. The interven-

tions offered across these systems are often frag-

mented and poorly coordinated. For instance, the crim-

inal justice system often expects a victim parent to

leave and testify against her abuser. The child protect-

ion system often expects that same victim to obtain a

protection order to keep the abuser away from the

children. At the same time, the family court system

might expect the victim parent to foster a close and

continuing relationship between the children and their

other parent. These competing expectations can cre-

ate impossible conflicts for the abused parent. The par-

ent cannot simultaneously insist on having no contact

with the abuser and maintain close and continuing con-

tact with the abuser at the very same time. Practitioners

must be mindful that multiple intervention systems ha-

ve the potential for creating conflicting expectations for

parties and sending mixed messages to all family me-

mbers.

7. Be mindful of the past, focused on the present

and realistic about the future

Longstanding patterns of abuse and coercive control

are rarely altered in the absence of appropriate and

proven interventions. Some abusers never change, al-

though many can with help and as an outcome of acc-

ountability measures which encourage them to think

differently about how they relate to their children and

partners. It is important to resist the assumption that

parenting problems related to domestic violence will

evaporate simply because the relationship between the

parents is dissolved. Instead, help to create a parenting

arrangement that is realistic and workable and con-

siders all relevant factors, including the behavior and

characteristics of the abusive parent and what it says

about his or her likely future approach to parenting.

8. Centralize and focus on the real life experiences

and needs of each parent and child, including the

risks presented or faced by each of them

Attempt to see the system and the world from the per-

spectives of each parent and child and account for their

actual concerns in resolving the matter instead of suc-

cumbing to the temptation to jump to conclusions about

what the child and parent have experienced and what

they need.

9. Respect people’s ability to make their own crit-

ical life decisions…

…including the methods for current and future dispute

resolution they prefer. Facilitate the restoration of a

domestic violence victim’s agency and autonomy by

providing full information and helping them to weigh

their options.

10. Make referrals to appropriate services, include-

ing detailed risk assessment and individualized

safety planning whenever domestic violence is id-

entified

About half of all domestic violence deaths were not

foreseen or feared by the victim, and information about

risk factors can make all the difference in a victim’s

ability to protect herself or himself from serious injury.

ASK THE EXPERTS | 75

February 2012

Ten Things to Enhance Social Media Success for Family Law Professionals

Annette T. Burns, Phoenix, Arizona

Here are ten things you can do to enhance your online

experiences, even if you “don’t believe in” social media.

1. Wade into something. If you’ve wondered about

Facebook, take the leap and sign on. Nothing bad will

happen, and you might find something interesting.

2. LinkedIn is a good starting point for folks who don’t

want the chatter and goofing around of Facebook.

LinkedIn is for business. You’ll receive links that might

be of interest to you (easy to click and read).

3. Offer some content for free. Whether it’s in your

emails or on a social media site you’re already using

(Facebook, Twitter, LinkedIn or the like), offer an

interesting article that you think will be of use to the

friends you talk with online. Give away information. The

more you give, the more you get out of online activity.

Social media should be 92% giving and 8% getting.

4. General information is fairly common on the web. If

you can offer specific information you will stand out.

Don’t post about mediation in general; post about a

specific mediation issue, such as resolving impasse.

5. Online activity of any kind is just like a conversation.

Whether you’re emailing colleagues, engaging on a

listserv, or using a social media site, just write like

you’re talking with friends over coffee.

6. Never, ever, ever think of simply using social media

as a way to get business. If you’re planning to use

social media as a form of advertising for yourself or

your practice, don’t even start. While social media is a

GREAT way to get business, it won’t work if you’re

trying too hard.

7. Never get engaged in a discussion of anyone’s

specific case online, whether on a listserv (even with

people you trust), LinkedIn or Facebook. Professional

communications online are for discussion of general

issues, theories and resources that are helpful to a

wide group of people. Individuals may try to get you to

talk about a specific case, and that’s always danger-

ous, even in a closed group.

8. Go for quality of contacts (people you talk to online)

and not quantity. It’s better to engage with six people

who are really interested in the same things you are

than to have 500 contacts who are too general to be of

help or interest to you.

9. Social media is just like anything else: the more you

put in, the more you get out. If you spend 5-10 minutes

a day reviewing and updating things like your Face-

book or LinkedIn status, or tweeting even once a day,

you will see the value in less than a month. Consist-

ency is key—along with quality over quantity!

10. Social media is the world’s largest focus group.

Listen and read—don’t preach.

ASK THE EXPERTS | 76

March 2012

Top Ten Tips for Psychological Testing in Child Custody Evaluations

David Medoff, PhD, Suffolk University, Private Practice, Boston, Massachusetts

1. Ensure competence

Forensic psychological testing is a specialized area of

practice that is profoundly different in many ways from

psychological testing conducted for clinical purposes.

Forensic practice occurs within a unique legal culture

comprised of specific evidentiary rules and case law

regarding the admissibility of information into the legal

process (e.g., various rules of domestic relations; fact-

ors related to Daubert). Forensic work is also guided

by specific expectations regarding professional stand-

ards and ethical codes of conduct. All of this must be

considered before, during and after psychological test-

ing, therefore, this type of work requires specialized

education, training and experience.

2. Have a well-reasoned a priori model of assess-

ment in mind

There are two primary models for integrating psycho-

logical testing within a more comprehensive child cust-

ody evaluation. The first model involves testing by child

custody evaluators themselves as one of several act-

ivities undertaken in that role. This model would be

limited to psychologists who have the necessary train-

ing to conduct psychological testing. The second

model involves psychological testing as a separate and

independent service by a psychologist with requisite

competence. Under this model, the tester would

typically consider a more circumscribed information

base stemming almost exclusively from the admin-

istration, scoring and interpretation of psychological

test data. The child custody evaluator receiving the test

report would then integrate test results into their broad-

er based evaluation.

3. Know your role and stick to it

The more circumscribed role of psychological tester

may face challenges and potential intrusions which will

most likely stem from attorneys attempting to advocate

for their clients. This role will thus require protection

against such potential intrusions, and maintenance of

a strict focus on information needed to perform psycho-

logical testing is required. It will therefore serve the

tester well to decline any offers of information or other

input from attorneys, other than as directly related to

the referral question, that do not specifically address

the mandate of performing psychological testing.

4. Obtain a court order

If specific authority from the court for psychological

testing has not been included in a prior court

appointment or court order, get it. Although this may

at times be portrayed as somewhat cumbersome or

time consuming, acquisition of a court order can

typically be easily obtained by an assented-to mo-

tion or stipulation signed by a judge. Acting under

the authority of a court order accomplishes two

major goals. First, it eliminates any potential legal

argument to exclude a psychological test report levi-

ed by a displeased party claiming either a lack of

authority for the testing or that the testing goes be-

yond the scope of the original evaluation order.

Second, a court order may serve to add a layer of

legal protection for the psychological tester should a

complaint of some sort be filed against them.

5. Identify your client

Differences between forensic and clinical practice can

at times obscure a clear understanding of the identity

of the client. In most instances, if operating under a

court order or appointment, the court itself is your

client. This however, is not always the case. While it

may be understandable that litigants view themselves

as the client, particularly because they are often paying

for the services rendered and they are the subjects of

the testing itself, litigants are actually the least likely of

all parties concerned to be the identified client in this

context. Because ownership and control of information

is commonly related to the identity of the client, a clear

understanding of client identity is necessary. This in

turn facilitates the provision of informed consent, core

elements of which include the clear delineation of the

tester’s role, a full disclosure of the limits of confident-

iality that likely exist, and a description of how test

results will be distributed.

ASK THE EXPERTS | 77

6. Obtain a clear referral questions

Psychological testing can be most effective when con-

ducted in response to specific questions posed by the

referral source. In some instances, naïve or uninform-

ed parties making a referral for testing may be seeking

information that cannot be acquired from this method

of assessment. Thus, regardless of the referral source,

clarification of the reason for referral is an essential as-

pect of psychological testing. This may require formal

communication with the court or a more casual brief

conversation with the referring child custody evaluator.

Nevertheless, clear referral questions can facilitate

important decisions regarding test selection and can

direct an important focus on specific areas of function

as may be indicated.

7. Select appropriate test instruments

There are virtually thousands of symptom rating

scales, “structured interview scales” and “clinical meth-

ods” purporting to be accurate and consistent psycho-

logical tests. Don’t believe it. As mentioned above, for-

ensic psychological testing requires thoughtful consid-

eration of specific legal rules and regulations, many of

which form an essential foundation upon which test

selection takes place. To that end, the psychological

tester places a premium on standardized and empiric-

ally supported test instruments. Findings based on

anything less allow for the introduction of error that can

negatively impact test results and/or risk of the exclu-

sion of test results from legal proceedings.

8. Engage sound testing practices

Even the most highly standardized psychological test-

ing procedures are only as systematized as the prac-

tices employed by the individual tester. It is imperative

that the well-defined rules developed for forensically

acceptable tests are as strictly enforced as possible.

Every reasonable effort should be made to avoid pot-

ential deviations from these standards of operation,

and violations of these procedures should be kept to

an absolute minimum. Should these standards be

altered for some reason, an explanation for this dev-

iation should be provided and any potential impact

upon or limitations of obtained data should be des-

cribeed. To the extent possible, a multi-method pro-

cess of psychological testing should be employed, thus

making use of a behavioral observation and both self-

report and performance-based measures.

9. Police your language

Report writing is a learned skill that can greatly impact

the use and/or potential misuse of psychological test

data. Due to the adversarial nature of the legal system,

it is critically important that one write in as clear and

concise a manner as possible, thus minimizing potent-

ial ambiguity. A high level of scrutiny is typically applied

to forensic report writing, for good reason, and avoiding

the use of words that could have multiple meanings is

advisable. Summary labels such as technical terms

and professional jargon should be avoided. Phrases

such as “abuse” or “neglect” should be either excluded

entirely or further described in clear functional descript-

tive terms regarding the frequency, duration and inten-

sity of the phenomenon being detailed. Together, this

can serve to reduce the intentional or unintentional

misinterpretation of intended meaning while protecting

the integrity of one’s written statements.

10. Stay within the limits of your data

Psychological test data, by definition, allows for more

circumscribed impressions and conclusions than might

be formulated from a more expansive information

base. Despite various pressures that might be brought

to bear, it is incumbent upon the psychological tester

to resist any temptation to provide opinions or state-

ments that go beyond the limitations of their data.

Conclusions regarding custody, parenting time, visit-

ation and/or vacation planning, for example, require

information that falls well outside the scope of psycho-

logical test data alone, and should therefore be avoid-

ed. Psychological testing can provide detailed func-

tional descriptions of an individual’s emotional, be-

havioral and psychological capacities that are directly

related to parenting abilities, but are not direct mea-

sures of parenting. This is a critical distinction that can

at times be subtle.

ASK THE EXPERTS | 78

April 2012

Ten Tips for Our Most Challenging Family Mediation Cases

Christine A. Coates, MEd, JD, Boulder, Colorado

Challenging cases come in many varieties. A case may

be difficult because of the complexity of the issues, the

personalities of the parties, or the extremity or dysfun-

ction of the situations. What is challenging for one med-

iator may be a stroll down the Seine for another. These

tips are aimed at circumstances and cases that the

individual mediator experiences as the most challeng-

ing and are offered as suggestions that can be used to

help us prepare for all tough family mediation situa-

tions.

1. Be a reflective practitioner

Prepare in advance, but don’t pre-judge the case from

pre-mediation statements, evaluations or other docu-

ments that the attorneys or parties submit to you. Re-

main curious and open to learning new information in

the session. Cases that come with warnings that

settlement will not occur are often the ones that resolve

the most elegantly in mediation. Learn from your mis-

takes. Debrief with a colleague or yourself after the

session to see what worked, what could have been

done differently and what you could do next time in a

similar situation to be more effective. Our most power-

ful learning comes from our mistakes, so embrace error

as a masterful guru. Know which cases and situations

are your most challenging, be prepared, mindful and

present during and introspective after the session to

build your capacity for artful mediation.

2. Schedule enough time

In court-ordered mediation, attorneys and parties often

pessimistically schedule the minimum amount of time

in order to comply with the court order. Tough cases

take a lot of time to work through. The dynamics are

often entrenched; basic facts of the case are unknown

or in dispute; and prior negotiations between parties

and/or attorneys may have bred hard feelings. In med-

iation, it is axiomatic that slower is faster. Go as slow

as the slowest person in the room, for example, when

working with financial issues, so that each party clearly

understands what is happening. Take the time neces-

sary to put ideas, facts and proposals on the white

board, flip chart or projection screen. Engage the par-

ties in all discussions, which is especially important

when attorneys are doing most of the talking. The

mediator must take the time necessary to allow creat-

ive problem-solving to emerge from the chaos that

enters the mediation room.

3. Use your intuition

A mediator brings the whole package of self to the

conflict: a brain, body, spirit, background, training, edu-

cation, skills, biases (yes, we all have them), ethics and

intuition. The best work in challenging cases occurs

when the mediator is prepared, open, curious and in-

tune with his or her own perceptions, intuition and inter-

nal nudgings. Strategy and technique can only trans-

port the mediator so far; the art of mediation relies on

accessing the entire self in the quest to reach the des-

tination of peace.

4. Remember to breathe and to help your parties

breathe, too

I received this tip from my pal, Bernie Mayer, and it has

served me well many times. Sometimes I just sit quietly

and breathe, distinctly and somewhat loudly. This can

remind the other people around the table to also take a

few deep breaths. Sometimes I actually ask folks to sit

quietly and breathe while I breathe loudly, in and out,

to establish the rhythm. Focusing on our breath allows

mindfulness and calm to enter the situation. Quiet time

in mediation is like the white space on a magazine

page that allows the message and art of the article to

be seen and understood. When you don’t know what

to say, be quiet and listen to your inner guidance.

5. Take breaks as needed (and even more often

than folks ask for)

The field of neuroscience suggests that people who are

making decisions need “vacations” from the issue to

allow their brains to make complex decisions. Locking

folks in a room until they are worn out and will agree to

anything is abusive and does not result in sound and

lasting decision making. When people are tired, sche-

dule another session. The mediator, too, needs more

ASK THE EXPERTS | 79

than just minimal comfort breaks to be at his or her

best. Allow yourself to be alone and present and mind-

ful for even a minute during a session. Don’t rush back

to the room. A brief rest allows your creativity to bloom.

6. Ask lots of questions and listen to the answers!

I heard the late, great John Haynes say that a perfect

mediation for him would be one in which the mediator

only asked questions and made no declarative state-

ments. Asking thoughtful questions is much more help-

ful than telling clients something you know and that you

think they need to hear. Coupled with listening, the

basic communication tool of reframing allows the part-

ies’ needs and interests to see the light of day. The

mediator can then use a previously unexpressed or

even unrealized need as a basis for generating creat-

ive options that everyone may have been missed in the

dark maelstrom of emotions, conflict and failed expect-

ations.

7. Name distrust when you see it

Let the parties know that not trusting their soon-to-be

ex-spouse is normal. The mediator can help the clients

come up with objective and realistic plans that allow

trust to develop over time. Focus the parents on the

child’s experience of the situation whenever possible.

The mediator can remind clients that each person’s

actions are more important than imputed and suspect-

ed motives of the other. Actions truly do speak louder

than words—BUT we also remind our clients that

words certainly can hurt them and their children. Gently

modeling and teaching respectful communication skills

helps the clients in our most challenging cases rise

above pettiness and disrespect out of love for their

children. Hold the hope for the family by remaining

optimistic with parents that things can get better for the

family.

8. Understand the dynamics of high conflict famil-

ies

Some of our most challenging cases are with difficult

people engaged in long-term and intractable conflict.

Understanding when to use techniques geared toward

“high conflict families” in which one or both parents may

have personality disorders is needed. For example,

often a difficult client cannot see the point of view of the

other party or understand the needs of the children

because s/he has no ability to be empathetic. In cau-

cus the mediator can compassionately reframe the

issue in terms of ways in which the client can get his or

her own needs met. Keeping the needs of the children

and the other parent in mind, the mediator uses “en-

lightened self interest” to allow the difficult client who

does not have empathy for others (it’s all about me, me,

me!) to make decisions in his/her self interest that also

benefit the children and other parent.

9. Be a life-long learner

This brave new world of instant communication and

online access to information offers mediators magni-

ficent opportunities to become more artful practitioners.

For example, I am currently fascinated with neuro-sci-

ence and the information about decision making, mot-

ivation, and the difficulty of making choices, which is

available. Other ways of learning include participating

in mediation consultation groups and by attending

seminars and conferences (such as the thoughtful,

challenging and inspiring ones that AFCC offers).

Through listening and discussion, we glean ideas from

each other and from the most innovative practitioners

and researchers among us. We can then apply this

new information to our most challenging cases. Re-

main open to learning about new techniques, styles of

mediation and hybrid processes to use in our tough

cases. Immerse yourself in learning about something

that intrigues you, whether it is, for example, spirit-

uality, brain science, cultural differences, or how earth-

worms move through the dirt. Metaphors, techniques,

strategies and insights will spring forth to enlighten you

and improve your practice.

10. Remember that the parties are responsible for

the decisions—not the mediator

Not all cases settle. Not all cases should settle. If you

have done your best and the parties decide not to re-

solve the issues, their decision does not mean that you

have failed. Cling to the belief that self-determination is

the hallmark of mediation. Trust yourself and the pro-

cess. The committed and inspired mediator and the

tried and true mediation process are a powerful team!

These are my top ten tips for my most challenging

cases. I’d love to hear yours: coatesc@aol.com.

Christie A. Coates, MEd, JD, an experienced family law attor-

ney, now emphasizes ADR and has been a mediator in private

practice since 1984. Her professional passion is helping families

reduce conflict; her private passion is helping people find their

spirit and joy through music. Christie is a popular national speak-

er, trainer, teacher, author and consultant in conflict resolution,

high-conflict families, parenting coordination, hybrid processes,

professionalism, ethics, and family law. A former president of

AFCC, she is active in many organizations and has been

honored for her work as a mediator, lawyer and child advocate,

including receiving Colorado’s Mediator of the Year Award, the

AFCC John Van Duzer Distinguished Service Award, and the

Association for Conflict Resolution John Haynes Distinguished

Mediator Award. She has co-authored two books, Working with

High Conflict Families of Divorce (Jason Aronson, 2001) and

Learning from Divorce (Jossey-Bass, 2003).

ASK THE EXPERTS | 80

May 2012

Top Ten Tips for Professionals Appointed to Conduct a Child Custody Evaluation

Accompanied by Allegations of Child Sexual Abuse

Kathryn Kuehnle, PhD, Indian Shores, Florida

1. The mental health professional should do an

appraisal of his/her competencies

Prior to accepting a court appointment, the evaluator

must determine if he/she has the training, experience,

and expertise to conduct all or only some of the com-

ponents of a child custody evaluation with one parent’s

allegation that the other parent has sexually abused

their child. The mental health professional may decide

to:

(a) Conduct all components of the child custody

and child sexual abuse evaluations, with or

without consultation with another expert;

(b) Conduct all components of the child custody

and child sexual abuse evaluations, with the

exception of a psychosexual evaluation of the

alleged sexually abusive parent, which would

be conducted by another expert;

evaluation, with the child sexual abuse

evaluation conducted by another expert or

experts;

(d) Decline to take the case altogether.

2. A court order must identify by name the app-

ointed mental health professional, delineation of

the specific role of the appointed professional,

and identification by name and role of other exp-

erts involved in the evaluation of the parties and

their children

A court order that is vague or does not specifically iden-

tify the evaluator by name and describe the evaluator’s

role should be returned to the parties’ attorneys for re-

vision.

3. Court appointed mental health evaluators must

strive to protect themselves from unconscious

biases when conducting a child custody evalua-

tion accompanied by an allegation of child sexual

abuse

To avoid confirmatory bias, evaluators must approach

the evaluation with multiple hypotheses and identify the

data they gather as supporting or opposing the various

hypotheses. This organizing format allows the eval-

uator to systematically analyze data and upon comple-

tion of the evaluation to present information to the court

in a clear and logical manner. Possible hypotheses in-

clude:

(a) The child is a victim of sexual abuse and is

credible;

(b) The child is not a victim of sexual abuse, but a

sincere, hyper-vigilant parent inaccurately

believes the child is the victim of sexual abuse;

parent is using the allegation of sexual abuse

to manipulate the court system during child

custody litigation;

(d) The child is a victim of sexual abuse, but due

to misguided loyalty will not disclose his/her

abuse;

(e) The child is a victim of sexual abuse, but due

to limited language skills cannot credibly report

the abuse experiences;

(f) The child is not a victim of sexual abuse, but

has developed a tainted memory and believes

that he/she has been engaged in sexual

activities by the alleged abuser;

(g) The child is not a victim of sexual abuse and is

credible, but is estranged from the identified

parent perpetrator and has misperceived an

innocent or ambiguous interaction.

4. Child sexual abuse is an event or a series of

events, not a psychiatric disorder, and the potent-

ial symptoms that sexually abused children may

exhibit vary significantly

The broad range of behaviors exhibited by child victims

varies as a function of Personal Factors (e.g., age,

gender, cognitive attributions); Familial Factors (e.g.,

parental history of CSA, family discord, family violence,

parental reaction to disclosure); and Abuse-Specific

Factors (i.e., sexual acts, duration of abuse, co-occur-

ring forms of abuse, victim–perpetrator relationship).

ASK THE EXPERTS | 81

Sexual abuse is not an experience leading in some

basic and systematic manner to a single symptom or

syndrome. Although re-search shows an association

between children’s aberrant sexualized behavior and

experiences of sexual abuse or exposure to a highly

sexualized environment, all behaviors and symptoms,

including aberrant sexual behaviors, are nonspecific

and also associated with a variety of other disturbing

life experiences and stressors.

5. A large body of research accumulated over the

past several decades has led to the emergence of

research consensus on factors that facilitate or

impede the accuracy of children’s reports of ex-

perienced events

Age is the most reliable predictor of the accuracy of

children’s memory. Both cognitive and social factors

are associated with age differences in children’s sug-

gestibility when presented inaccurate information. Pas-

sage of time may alter the strength of the child’s

memory, past suggestive interviews may have tainted

the child’s memory, and the child’s present resistance

to suggestibility will all influence the accuracy of the

memory narrated by the child.

6. Interviews typically include several types of

questions and children’s suggestibility varies

across question types

Regardless of the type of direct question, children’s

errors increase when they are asked direct rather than

free-recall questions. Recall questions produce the

most accurate information, while recognition questions

produce the most unreliable information. Children’s

accuracy declines as questioning moves from free re-

call (e.g., “Please tell me everything that happened.”;

“Then what happened?”), to more focused questions

(e.g., “Did he take your clothes off?”), to questions

about a specific detail (e.g., “What were you wearing

?”), or to questions that offer the child limited options

(e.g., “Did he touch your pee-pee?”; “Did he tell you not

to tell?”; “Were his pants on or off?”).

7. A neutral interviewer, open-ended questioning,

absence of repeated suggestive interviewing, and

no induction of a motive for the child to make a

false report are conditions that increase the acc-

uracy of even very young preschool-age children

When interviewers are supportive but do not selectively

reinforce the child’s responses and ask open-ended

questions, they garner information that is based on the

child’s memory of an experience and lessen the risk of

inaccurate statements. However, open-ended ques-

tions can elicit inaccurate reports if a child has incorpor-

ated as part of his or her memory misinformation

through previous suggestive interviews.

8. There is no consensus among researchers that

audio recording or videotaping the child’s inter-

view is the most accurate method of recording the

specific questions of the interviewer and answers

of the child

Note-taking fares very poorly compared to either audio

or video recording and evaluators who rely on note-

taking are found to miss a significant amount of

important information. Videotaping provides the most

accurate and detailed form of recording CSA inter-

views, audio recording provides a less adequate sys-

tem of recording than videotaping since nonverbal

demeanor and behavior is lost, but both are better than

note-taking.

9. Similar to a comprehensive child custody eval-

uation, conclusions and recommendations re-

garding child sexual abuse evaluations do not

solely rely on the verbal report of the child

The evaluator’s summary of findings encompasses a

myriad of information including parents’ childhood hist-

ories, parents’ mental health and presence of any per-

sonality disorders, timing of and motivation for dis-

closure, results of the psychosexual evaluation, med-

ical evidence for or eye witness evidence to the sexual

abuse events, collateral information, and other relevant

documents and observations.

10. It is not within the psycho-legal role of the

evaluator to offer an opinion on the ultimate issue

The evaluator’s role is to assist the court by providing

data on the strengths and weaknesses of the alle-

gation, not to determine the truth of the sexual abuse

allegation.

8. There is no consensus among researchers that

audio recording or videotaping the child’s inter-

view is the most accurate method of recording the

specific questions of the interviewer and answers

of the child

Note-taking fares very poorly compared to either audio

or video recording and evaluators who rely on note-

taking are found to miss a significant amount of

important information. Videotaping provides the most

accurate and detailed form of recording CSA inter-

views, audio recording provides a less adequate sys-

tem of recording than videotaping since nonverbal

demeanor and behavior is lost, but both are better than

note-taking.

ASK THE EXPERTS | 82

June 2012

Top Ten Ethical Issues in Forensic Consulting

Robert A. Simon, PhD, Del Mar, California

1. Know your role

Provision 3.05 of the APA Ethical Principals of Psycho-

logists and Code of Conduct states that psychologists

should refrain from entering into multiple relationships

when doing so could compromise objectivity, compet-

ence or effectiveness.

Forensic Psychology Consultants who are engaged by

attorneys to provide expert testimony and who also

engage in “behind the scenes” discussions with attorn-

eys regarding issues such as case development and

case strategy or who engage in discussions that are

unrelated to the proposed testimony may be engaging

in multiple relationships that are not ethical. Since the

efficacy of the expert witness depends, in part, upon

their credibility and their ability to be neutral with regard

to case outcome no matter who they are working for,

engaging in work as a “behind the scenes” consultant

may compromise efficacy as a witness as well as their

objectivity, or perceived objectivity.

2. Know your client

Principle B of the APA Ethics Code, Fidelity and Res-

ponsibility, advises the psychologist to “Establish rela-

tionships of trust with those with whom they work”, and

to “Clarify their professional roles and obligations,

accept responsibility for their behavior, and seek to

manage conflicts of interest that could lead to exploit-

ation or harm.”

Be clear about who your client is—whom you work for,

take direction from and are responsible to. Do you work

for the attorney or do you work for the litigant? Define

this explicitly and communicate this understanding to

the attorney and the litigant.

3. Be honest

Principle C of the APA Ethics Code, Integrity, states in

part, “Psychologists seek to promote accuracy,

honesty and truthfulness in the science, teaching, and

practice of psychology. In these activities, psy-

chologists do not cheat, steal, or engage in fraud,

subterfuge or intentional misrepresentation of fact.”

Consultants and testifying experts remain true to the

science of the field even when the retaining attorney

may be displeased by the realities of the science. Con-

sultants and testifying experts offer guidance and

information that is accurate, even when doing so may

run counter to what the attorney’s position is or what

the litigant wants to hear.

4. Be aware of and control for bias

This Principle D of the ethics code, Justice, states in

part, “Psychologists exercise reasonable judgment and

take precautions to ensure that their potential bias-

es...do not lead to or condone unjust practices.”

Everyone has biases. Biases can be based in personal

belief systems, a preference for certain theoretical or

conceptual approaches to psychological work or per-

sonal experiences. The ethical and professional foren-

sic consultant engages in ongoing efforts to recognize

his/her own biases so as to assure that these biases

are not operating and influencing conclusions and testi-

mony. The ethical and professional consultant has pro-

cesses in place, such as multiple hypothesis testing,

that help control for bias and help assure accurate con-

clusions and opinions.

5. Know relevant law

For the forensic psychologist, Standard 2.01(f) of the

Ethics Code is uniquely relevant. This standard states

“When assuming forensic roles, psychologists are or

become reasonably familiar with the judicial or admini-

strative rules governing their roles.”

In addition to engaging in ongoing psychological train-

ing and maintaining state-of-the-art psychological com-

petence, forensic consultants must commit themselves

to learning relevant law and to maintaining ongoing

psycho-legal education.

ASK THE EXPERTS | 83

6. Do not draw conclusions about those not dir-

ectly assessed

Provision 9.01(a) of the Ethics Code states “Psycho-

logists base the opinions contained in their recom-

mendations, reports and diagnostic or evaluative state-

ments, including forensic testimony, on information and

techniques sufficient to substantiate their findings.”

Provision 9.01(b) adds, in pertinent part “Psychologists

provide opinions of the psychological characteristics of

individuals only after they have conducted an examin-

ation of the individuals adequate to support their state-

ments or conclusions.”

Although a testifying consultant may be asked by the

retaining attorney to offer opinions about the litigants,

the ethically informed expert will not do so. Since the

testifying consultant does not conduct his/her own

assessment or investigation, offering testimony about

psychological aspects of the litigants or the children

involved is unwise. One can offer general educative

comments about issues discussed by the evaluator (for

example, information about what bipolar disorder is in

a case where one of the parents has been identified as

bipolar). However, the testifying expert consultant must

stop short of offering opinions directly about the individ-

ual in question.

7. Use caution with psychological testing

Standard 9.02(a) states “Psychologists administer,

adapt, score, interpret or use assessment techniques,

interviews, tests or instruments in a manner and for

purposes that are appropriate in light of the research

on or evidence of the usefulness and proper appli-

cation of the technique.” Standard 9.02(b) states “Psy-

chologists use assessment instruments whose validity

and reliability have been established for use with mem-

bers of the population tested. When such reliability and

validity has not been established, psychologists des-

cribe the strengths and limitations of test results and

interpretation.”

When commenting upon the use of psychological tests,

the ethically informed consultant keeps in mind the

requirement to articulate the limitations of the data and,

therefore, the degree to which the data are general-

izable to those assessed. Since it is the case that there

are no psychometrically valid/reliable tests that were

normed on a population of child custody litigants or that

were designed with this specific population in mind, it

is best to use testing to generate hypotheses rather

than to reach any conclusions about the individuals

being assessed.

8. Beware of computerized test interpretations

Standard 9.09(c) states “Psychologists retain respons-

ibility for the appropriate application, interpretation, and

use of assessment instruments, whether they score

and interpret such tests themselves or use automated

or other services.”

It is not at all uncommon for child custody evaluators to

send psychological tests to scoring and interpretive

services. Frequently used tests such as the MMPI-2

and MCMI-III are often scored and interpreted by

computer-based services. While this may seem intuit-

tively appealing on first blush and may seem to protect

against bias introduced by manual interpretation of

tests by an evaluator, a closer inspection reveals flaws

in this point of view. Yes, computers are blind to the

individual taking the test, the purpose for which the test

is being administered and blind to any outcome bias on

the part of the psychologist. Yet, there are fundamental

problems with the belief that the “blindness” of the inter-

pretations fosters accuracy. Moreover, the psycho-

logist must maintain responsibility for the interpretation

used. Since the psychologist cannot know the algor-

ithm used by the computer to interpret the test, the

psychologist cannot assert that they actually know how

the inferential conclusions are reached.

9. Clearly detail fee arrangements

Standard 6.04 is related to fees and financial arrange-

ments. In all activities, the psychologist takes care to

specify costs and fee arrangements regardless of the

psychologist’s role. When serving as a consultant or

expert witness in child custody litigation, this respon-

sibility remains important. Parents involved in child

custody litigation quite readily feel vulnerable and

believe that the stakes in the litigation could not be

higher. Given their emotional vulnerability, such in-

dividuals are more easily exploited financially than

other individuals may be. When parents believe that

the well-being of their children is at stake, they are

often willing to do things and take on expenses they

might otherwise avoid.

The ethically informed consultant recognizes the vuln-

erability of the litigant (who after all, through the

attorney’s client trust account is paying for the con-

sultant’s fees). The ethically informed consultant and

expert witness clearly describes and documents, in

writing, the financial and fee arrangements attendant to

involvement in the case so as to create reasonable and

accurate expectations on the part of the client. Be-

cause the consultant and the expert witness operates

ASK THE EXPERTS | 84

ethically, the specification of fee arrangements also

includes a discussion of how the consultant and expert

witness are not being paid for their particular opinion or

their point of view that supports a litigation position but,

instead, is being paid for their work and the proffering

of the accurate and honest professional opinion.

10. Less experienced professionals need not

apply

Provision 2.01(a) refers to the requirement that psy-

chologists practice within boundaries of their compet-

ence. Note that by its inclusion in the APA Standards,

it becomes mandatory and not only aspirational that

psychologists stay within areas of their competence.

Only senior professionals with many years of experi-

ence actually conducting custody evaluations should

undertake working as a consultant or testifying expert

in child custody litigation. While it may be tempting to

place oneself in this role when one is less experienced,

the work of a consultant or testifying expert is a truly

expert role. Gaining such expertise not only requires

proper education and ongoing training, it requires the

kind of experience that can only be gained by having

worked in the field over a period of many years.

Robert A. Simon, PhD is a licensed psychologist who is a recog-

nized expert in forensic psychologist consulting with over 20

years of experience in the legal domain of family law and dom-

estic relations. Dr. Simon is licensed in California and available

for consultation throughout California and the United States. He

has a book coming out in early 2013 published by the American

Bar Association Section of Family Law, tentatively titled: Foren-

sic Work Product Review, Case Consultation and Expert Wit-

ness Testimony in Child Custody Litigation with co-author Philip

M. Stahl, PhD.

ASK THE EXPERTS | 85

July 2012

Ten Tips for Practitioners Using Social Science Research

Marsha Kline Pruett, PhD, MSL, Northampton, Massachusetts

1. Research results point to probabilities and pot-

entialities only, not individual realities

A statistically significant research result means that it

is unlikely to have occurred by chance in the general

population. If a group of children were given the same

parenting intervention and those children were “sign-

ificantly less likely to develop mental health difficulties,”

that means the intervention worked on average for

more children in the sample than it did not. It does not

mean that the intervention will work for every child.

Even when results are statistically significant, each

individual situation must be considered, as a variety of

factors (some studied, some not) can affect whether a

probability is likely to become a reality in any given

family situation.

2. Not all significant findings are created equal

Statistically significant findings are often reported or

interpreted as though they were equally strong, but this

is not usually so. The p-value (or probability value)

measures the strength of the evidence that a relation-

ship exists between two variables. The chance of find-

ing a significant relationship depends on several as-

pects of the study, notably the sample size. A “trend” is

described when the result does not quite reach a

significance level that is accepted as solid evidence in

the field. A statistic of p<.05 means there is less than a

5% chance of the result occurring by chance, con-

sidered statistically significant. Other p-values are

p<.01 (less than a 1% chance) and p <.001. Studies

with small sample sizes that report many findings in-

crease the risk that some finding will be significant. Be

cautious about small studies that look at many varia-

bles (apropos for family law studies) without address-

ing this issue.

3. Significant is not the same as important

Studies with a large sample size may show statist-ically

significant findings that are still relatively small in

occurrence or importance. Two variables may show a

significant relationship (A and B are likely to be related

or co-occur) and co-occur only 2 out of 10 times. In

science, that may be significant, but in practice, a legal

decision would not best be made on such a small

likelihood. If you plan to rely on a study’s finding, note

whether the statistically significant finding is clinically

relevant in terms of the size of the effect (you may have

to check with a social scientist/psychologist). When

similar results are found across studies, confidence in

the results grows.

4. What is not significant may be as important as

what is significant

Many studies tout statistically significant findings but

the researcher may fail to point out that many other

variables studied were not significant. Much can be

learned from those non-significant results, as well, and

these should be noted by the practitioner, although the

researcher may or may not discuss them. For example,

a child may have a negative result from making a

transition between two homes, but only one of five

variables may have been significant, suggesting cau-

tion when making generalizations from the data about

the impact of such transitions.

5. Correlations are not causality

A statistically significant relationship between variables

indicates that they are co-occurring. The result says

nothing about which variable is causing the other.

Causality can only be addressed in a longitudinal study

with a control group, in which participants are randomly

assigned to groups (not assigned based on any char-

acteristic or preference of the participant). For exam-

ple, practitioners often make the mistake that if a child

with inconsistent parenting schedules has more diff-

iculties, the difficulties are a function of the schedule. It

may be that parents with difficult children create incon-

sistent schedules in an attempt to manage the child’s

behavior in an ongoing manner. Or, it may be that par-

ents in higher conflict or with fewer economic resource-

es create more inconsistent schedules, and those fact-

ors explain the child’s behavior better than the sche-

dule.

ASK THE EXPERTS | 86

6. Theory provides a lens for understanding: over-

lapping lenses provide a clear vision

Researchers try to be objective in the ways they con-

duct their research, but social psychological research

also shows that people interpret what they see through

the lens of their own biases. Which theory is selected

to explain or investigate psychological phenomena

influences? Which questions are asked and which vari-

ables are studied? In addition, findings may be inter-

preted differently based on the theoretical perspective

of the interpreter. As researchers from different theore-

tical perspectives reach consensus about the implica-

tions of results, the field is converging, and social policy

drawn from the results will more reliably represent the

current state of empirical knowledge. Conversely,

policy cannot be reliably made when results are sparse

and there is lower consensus in the field about their

interpretation or implications.

7. Always go back to the original source

One problem results from researchers citing each

other’s work based on what they read from other re-

searchers’ summaries. A game of “telephone” occurs

where each researcher changes a few words and

passes along a study, until it is not fully recognizable or

accurate several citations later. It may be misinter-

preted or something gets lost in the translation. Always

check original sources before relying on a second-

hand account or quoting it.

8. Natural bias can be subjected to strict scrutiny;

place of publication matters

Social science journals are abundant, and much is

published in lesser-known journals, which are often

written for highly specialized audiences. These journ-

als generally have lower level peer review than higher

level journals. Publishing in someone else’s book

rather than one’s own also usually affords a higher

standard of review. Social science journals are review-

ed and edited by other professionals in the field. Goog-

le “Social Science Journal Impact Ratings” and you will

find out which journals are rated most highly. You can

also look for impact ratings among psychology or social

work journals, for example.

9. Cherry picking is unfruitful for all

Beware of presentations, reviews, or experts who

cherry pick articles or passages within articles to

illustrate a point. When a review is genuinely thorough

and unbiased, not all studies reported should come out

in a similar direction. There are always studies that

contradict each other, usually because they have used

different instruments or variables to examine the same

question. Check the original article if a conclusion is

reached based on a paragraph or less from another

author. Make sure the illustrated point or result accur-

ately reflects the outcomes, as well as the nature and

spirit of what was written.

10. Social science depends on tearing down what

has gone before to make room for the new; that

tendency gets misused and overstated in legal

contexts

While social scientists love to point out how they are

not supporters of the adversarial system of law, they

have their own form of adversarial system. Science

builds on new information that modifies or disproves

past knowledge. Therefore, studies routinely point out

the weaknesses of prior research or gaps in prior

research to make the point that their study is new and

important. Know that every study can be analyzed for

its weaknesses, since no study can control for all the

possibilities in nature or human nature. However,

distinctions can be made between studies while em-

phasizing each one’s strengths as well as limitations

based on available data and resources at the time.

Indeed, that is the only way social science becomes

foundational and substantively useful to law.

ASK THE EXPERTS | 87

August 2012

Top Ten Tips for When to Withdraw as Parenting Coordinator

Siri Gottlieb, MSW, JD, Ann Arbor, Michigan, Gary Direnfeld, MSW, Dundas, Ontario, Canada, and Christine A. Coates, MEd, JD,

Boulder, Colorado

The following list was assembled by the authors from a

session they presented, “Getting out of Dodge: When

to Pull the Plug on Parenting Coordination Clients,” at

the AFCC 49th Annual Conference in Chicago in June

2012. The Honorable George Czutrin also participated

in the workshop. The list is based on a questionnaire

completed by members of the AFCC Parenting Coord-

ination Network listserv.

1. The Parenting Coordinator (PC) feels unsafe be-

cause of a client’s rage or threats of violence

These threats may be real, implied or just the PC’s

perception. In any case, the PC has the right to feel

safe. The degree of risk should be analyzed as care-

fully as possible, preferably with the aid of peer con-

sultation. If the PC decides not to withdraw, s/he should

ensure that questions about safety do not impact the

PC’s objectivity and neutrality.

2. The PC believes the case needs a fresh per-

spective

Clients can tug us emotionally in different directions

and try to pull us into their drama. It’s an ongoing chall-

enge not to get inducted into one client’s perspective

to the detriment of the other client. If the PC feels his/

her perspective has become clouded, it is advisable to

step back and allow another professional to take a new

look at the situation.

3. A client is not paying

Parenting coordination is typically a paid service. PCs

should be compensated fairly and appropriately for this

demanding work. It is reasonable to step down from a

case if a client is not meeting his or her financial res-

ponsibility, and this right of the PC should be clearly set

forth in the order appointing the PC and in the PC’s re-

tainer agreement.

Many PCs require the parties to maintain a retainer to

avoid the situation of money running out while the fam-

ily remains in crisis. No PC wants to abandon parents

because of failure to pay. Protect yourself and the cli-

ents by always having a retainer equivalent to at least

several hours’ work.

4. The PC is concerned about a possible board

complaint, having a grievance filed or being sued

Because parenting coordination is an ADR intervention

with high conflict parents, it is not unusual for at least

one parent to be disgruntled. A process for complaints

about the PC’s services or conduct should be clearly

stated in the order appointing the PC or in the PC’s

contract with the clients. Such language could include

a provision requiring that before the complaint is filed,

the client meet with the PC and attempt to resolve the

issue and then, if allowed, attend a meeting with the

parties, the PC and the judge.

A PC has a right to avoid threats to his or her integrity,

role and professional status by withdrawing when a

grievance or lawsuit is likely.

5. The client refuses to work with the PC and has

asked the court to terminate the appointment or

has simply stopped paying in order to force the

PC to withdraw

At times the relationship between the PC and a client

is intractable and has become unworkable. In such

circumstances it may be best to withdraw to avoid the

appearance of bias. The order appointing the PC or the

PC’s contract with the clients should include a process

for selecting a successor PC that allows the exchange

of information between the former and new PC.

6. A client is non-compliant with the PC’s recom-

mendations, decisions or established protocols

Given that parenting coordination is a voluntary pro-

cess, client non-compliance may preclude an ability to

continue to serve fairly and effectively. The PC should

take inventory of his/her emotional reactions and ass-

ess their impact on providing appropriate service.

ASK THE EXPERTS | 88

7. Both clients are hostile to the PC and to the

process

There is no point in continuing what is a voluntary pro-

cess with people who don’t want to participate. How-

ever, it’s not uncommon for the parties to “take turns”

being angry with the PC. This can often be worked

through. If they’re both antagonistic, sometimes humor

can be effective: “Well, at least your anger at me is one

thing you two agree on!” If neither wants to proceed,

then a letter to the attorneys or court is in order, exp-

laining that the parties are opting out.

8. The litigation between the parties is not abating

and/or the attorneys are overly adversarial

Parenting coordination does not occur in a vacuum.

While there may be some matters subject to resolution

by the PC, other issues may need to be litigated. In

addition, the parties or lawyers may still be trying to liti-

gate matters that were intended to be addressed in

parenting coordination. These dynamics may under-

mine the role and function of the PC. If a lawyer is

acting in a manner that impedes the parenting coordi-

nation process and the customary goals of parenting

coordination (improved communication, problem-solv-

ing, and quick resolution of disputes), then the PC may

be rendered ineffective. If a heart-to-heart talk with the

offending attorney is not productive, termination may

be indicated.

9. When the PC feels so negatively about a client

that it impairs the PC’s ability to be effective

Countertransference, a long understood therapeutic

principle, is always present in human relationships,

including that between the PC and client. It may be that

the PC feels so very strongly (positively or negatively)

about a client that these feelings inappropriately influ-

ence his/her interventions and decisions. Under such

circumstances the PC should self-reflect and make

every effort to manage the countertransference in a

responsible way. Supervision can help. If the PC’s

work continues to be compromised, withdrawal is indi-

cated.

10. When the case feels like it’s sucking the very

ectoplasm from your soul

This tip was offered by one of the responders to our

survey and made us chuckle, both from the hyperbole

and also from the identification with the feeling ex-

pressed. If you are totally drained by the service to your

clients, protect yourself and your clients by a prompt

withdrawal and substitution of a successor PC.

Get out fast, but get out responsibly. Make sure your

PC agreement outlines the process for early termin-

ation, and follow it carefully. Send letters to clients and

their attorneys explaining your inability to continue ser-

ving and reminding them of the contractual protocol for

termination. Discharge your duties responsibly, but

save your soul!

Siri Gottlieb, JD, LMSW, of Ann Arbor Michigan, practiced law

for 14 years before becoming a licensed social worker. She has

been in private practice (psychotherapy, divorce mediation,

divorce coaching and parenting coordination) since 1994. Siri is

a frequent presenter at local and national conferences, has been

published in various journals and is past-president of the Colla-

borative Practice Institute of Michigan.

Gary Direnfeld, MSW, RSW, of Dundas, Ontario, Canada, has

been a social worker for more than 30 years and is in private

practice providing counseling, mediation and assessment ser-

vices on most matters of family life. He has a weekly parenting

column in his city's daily newspaper and has hosted 65 episodes

of a reality television show working with newlywed couples. Gary

is also a frequent presenter throughout North America.

Christine (Christie) A. Coates, MEd, JD, of Boulder, Colorado, is

an experienced family law attorney, who emphasizes alternative

dispute resolution in domestic relations and has been a mediator

since 1984. A former president of AFCC, she chaired the Task

Force on Parenting Coordination, which developed the AFCC

Guidelines for Parenting Coordination. Christie is the co-author

of two books, is a frequent speaker and trainer, and adjunct pro-

fessor at the University of Colorado, School of Law.

ASK THE EXPERTS | 89

September 2012

Research in a Strained System—When and How Can it Be Useful?

Top Ten Tips to Help Professionals Use Research Effectively

Lyn R. Greenberg, PhD, Los Angeles, California, Leslie M. Drozd, PhD, Newport Beach, California, and Mary Catherine M. Bohen,

Esq., Los Angeles, California

Nineteen-month-old Johnny and his three-year-old sis-

ter Sally need a parenting plan. Both are having diffi-

culty with transitions. Father alleges that Mother is

limiting his access to the children and interfering with

the crucial development of the children’s bond to their

father. Father believes that his parenting time should

be increased, to include overnight time with the child-

ren. Mother distrusts Father’s parenting skills. Mother

has read that children should never be separated from

their mothers before the age of 5. Each parent has

brought an article from a website to court, suggesting

that “science” supports that parent’s position.

As thousands of families pass though courtrooms

every day, can research be of use to the court in deter-

mining what to do for these children? What core con-

cepts will help professionals to use the available re-

search most effectively?

1. Avoid believing that “If it’s published, it must

be quality research”

Based on a critical appraisal of 60,352 articles from 170

journals, McKibbon, Wilczynski, & Haynes (2004)

found that only 6.8% of published articles were deem-

ed “high quality” studies. Not all studies are created

equally. Published reports can make erroneous claims

that may not be based on high quality evidence. Con-

tradictions in research findings may reflect differences

in the quality of the research, the populations studied,

the sample size, the research design used, and the

accuracy with which it is reported. With the increased

use of open source publishing (e.g., publishing material

on the internet), it is easy to find at least one “study” to

support just about any theory. Science can help us

understand complex relationships so it should neither

be discounted nor used without critical appraisal

(Drozd, Olesen, & Saini, 2012).

2. Avoid the twin temptations of adopting over-

simplified rules and disregarding science altoge-

ther; if it looks too simple to be true, it probably is

Legal professionals often prefer simple, clear state-

ments, and may perceive mental health professionals

who present nuanced statements to be waffling or

defensive. Social science is complicated, because

children and families are complicated. Care is essential

to determine which findings best apply to the family at

hand. It is prudent to be cautious when polarized or

politically driven extremes are presented (Johnston,

2007; Gelles, 2007). Research allows one to discover

the full continuum of solutions as a means to navigate

around ideological wars (Saini, 2012).

3. Summaries of the research can be handy, but

are often misleading

Because summaries may not accurately reflect the

findings in the primary studies, they should be used

with great caution (Saini, 2012). Does the author who

conducted the review have an evident bias or agenda?

Is the author articulating the limits of the research in the

summary or acknowledging findings that point in diff-

erent directions? Popular press articles and brief re-

search summaries often present oversimplified re-sults

with considerable overstatement. They may fail to

distinguish between research findings and statements

of theory or opinion—presenting findings that support

the author’s perspective as immutable facts and even

omitting limitations cited by the original researchers

(Greenberg, Drozd & Bohen, 2012). For example, it is

no less misleading to say that “the research” supports

overnights for young children than it is to say that “the

research” establishes that young children below age 5

should never spend the night away from their mothers.

Studies suggest different conclusions and different

issues to consider, depending on the family’s situation

and characteristics. A closer look at the details can

guide us to the issues most important and relevant to a

particular child and family.

ASK THE EXPERTS | 90

4. Look for experts and authors who put the limit-

ations of their results out front, from the outset

Banner headlines and broad, uncomplicated state-

ments may be appealing but are often misleading.

Many families do not have the funds to challenge mat-

erial presented as “sound bites” or “headlines.” Harm

can be done to families in between the overly broad

statement and the presentation of context or amplifying

material. That is one reason why psychologists have

an ethical obligation to articulate the limitations of opin-

ions they present and to take steps to mitigate any mis-

representation or misunderstanding of their work.

Which expert would you find more credible—one who

notes the limitations immediately, or one who is forced

to do so under challenge from other experts or a cross-

examining attorney?

5. Avoid considering research in a vacuum

Consider the other variables, such as general child

development issues, that may impact or inform the

immediate issues. If the allegation in the case involves

alienation, it is essential to also consider what we know

about child development, violence, maltreatment,

parent-child relationships and attachment. This app-

roach will minimize the risk of neglecting the whole

child in favor of focusing on contested issues.

6. Findings that appear to conflict may actually

provide context or applicability

When the expert looks more deeply at the findings, the

various factors at play that provide the different findings

may become evident and, in turn, may help the expert,

and ultimately the court, see the family before them

more clearly and accurately. Caution must prevail,

given that the factors found in other domains related to

child custody may not take into consideration the con-

founding effects of separation, conflict, and involve-

ment with the family court system (Saini, 2012). Thus,

extrapolating the evidence needs to be tentative and

framed within the context that a given family finds itself

in.

7. Push back from overgeneralizations and

cookie-cutter approaches to solve complex pro-

blems

Determine whether the studies cited are similar to the

family and children in the case before the court. Con-

sider the context and complexity of individual exper-

iences of children and families in assessing the app-

licability of research findings (Drozd, Olesen, & Saini,

2012; Greenberg, Drozd & Bohen, 2012.). If children in

the case under consideration are ages 3 and 5 and the

subjects in the studies looked at are teenagers, one

might question the generalizability of the study to the

children in the instant family.

8. Avoid phrases like, “the research says” given

that the research rarely speaks with a single

voice; instead consider “the trends suggest…”

Even when there is broad agreement on general

issues, details vary. Rarely is there agreement across

all research on a given topic. The findings of individual

studies are more likely to differ than to be identical. The

differences in the research findings may be critical to

crafting plans and interventions for a specific family. By

way of example, while there is general agreement

among mental health professionals that exposure to

parental conflict may be harmful to children; the best

plan for a family will depend on the type of conflict pre-

sented, the resources available, and the strengths and

weakness of each family member (Kelly, 2007).

9. Seek research to inform about the possibilities,

rather than narrowly looking at research to sup-

port one view; seek research that challenges your

preliminary opinion

When an expert, an attorney, or even a judge has a

pre-existing view, the temptation is to consider and

give weight only to information that supports that point

of view. “Check yourself before you wreck yourself.”

Experts may present more polished versions of the

material that Johnny and Sally’s parents found on their

preferred websites, though experts can be effectively

challenged about their choices of source material, and

whether they sought information about other poss-

ibilities. Systematic bias can be even more harmful at

earlier stages of the process when a consultant’s report

of the research may impact a family’s decision to settle

or pursue litigation.

10. Therapy, parenting coordination and other

interventions should also be “scientifically in-

formed”

Too often, we expect a research base for the "big

issues" that are the focus of litigation, and neglect the

available research when deciding how to assist fam-

ilies. Controlled studies of specific interventions may

not be available, but we can draw on research about

domestic violence, children’s development and adjust-

ment, components in children’s decision-making, sugg-

estibility, and other related issues in crafting or provid-

ing interventions. There is a broad knowledge base in

the mental health professions about many of these

issues, and research from a variety of perspectives

about what is essential or useful to promote behavior

change in adults and progress in children. “What

works” (and does not work) from the available research

can help in assessing whether it may work as part of

the interventions stipulated to by the parties or ordered

by the court (Greenberg, Doi Fick, & Schnider, 2012;

Greenberg, Gould, Gould-Saltman & Stahl, 2003).

ASK THE EXPERTS | 91

While the volume of social science literature has in-

creased dramatically over recent decades, important

questions persist about applicability and whether the

research can offer anything to Johnny and Sally’s

family. Undoubtedly, there are some findings that can

be helpful in decision-making, if used appropriately.

Skilled professionals can provide context to splash

headlines on websites, educating parents to more

accurate information relevant to their family. This may

provide the basis for compromise and cooperation,

with professional assistance. If the decision must be

made by the court, research presented in the context

of the family may assist the court. Conversely, decis-

ions based on splash headlines or biased summaries

may do more harm than good for the family.

Conscientious custody professionals look for consis-

tent findings and themes across the professional litera-

ture. They look at the strengths and weaknesses of the

studies, and the relevance of the findings to a particular

family. They make deliberate attempts to contain bias,

by seeking material inconsistent with their own prior

opinions. Practitioners providing services to these fam-

ilies also have a responsibility to be familiar with the

research that is relevant to their work and to practice in

a scientifically defensible manner (AFCC Guidelines

for Court-Involved Therapy, 2010). Failure to do so

risks enormous harm to the children and family. The

applicability and implications of various studies may be

debated for years in professional meetings and journ-

als, with each new finding augmenting or complicating

what was known before. Occasionally, but rarely, the

bulk of available research will point in a single direction;

just as rarely, a new finding will lead professionals to

rethink prior assumptions and change practice.

Generally, the best use of psychological research is

gradual, cautious, and nuanced. Used carefully and

throughout the process, research may have much to

offer to families. As with most tools, irresponsible use

can lead to harm. Please see the following page for a

list of references.

The authors will present on these issues at the upcoming AFCC

10th Symposium on Child Custody Evaluations, along with Hon.

R. John Harper, Kathryn Kuehnle, Nancy Olesen, Michael Saini,

Hon. Harvey Silberman, and a host of other distinguished

experts.

Mary Catherine M. Bohen, Esq. is a Certified Family Law

Specialist practicing in Downtown Los Angeles. She can be

reached at [email protected].

Leslie M. Drozd, PhD is the editor of the Journal of Child

Custody and co-editor of Parenting Plan Evaluations: Applied

Research for Family Courts (Oxford, 2012). She maintains a

clinical and forensic practice in Newport Beach, CA. Her website

is www.lesliedrozd.com.

Lyn R. Greenberg, PhD practices forensic and clinical psycho-

logy in Los Angeles, specializing in child custody and juvenile

dependency cases. She has written and presented widely on

variety of issues related to court-involved families, and co-edited

the Journal of Child Custody’s special issue on court-involved

therapy. She can be reached at [email protected].

REFERENCE LIST

Drozd, L., Olesen, N., & Saini, M. (in press). Parenting plan

evaluation decision tree. Sarasota, FL: Professional

Resource Press.

Gelles, R. J. (2007). The Politics of Research: The Use, abuse

and misuse of social science data – the cases of intimate

partner violence. Family Court Review, 45, 42-51.

Greenberg, L. R., Drozd, L., & Bohen, M. C. (2012, July 19).

Science and parenting plans: One size does not fit all. San

Francisco Daily Journal, pp. 6.

Greenberg, L. R., Doi Fick, L., & Schnider, R. (2012). Keeping

the Developmental Frame: Child-Centered Conjoint

Therapy.

Greenberg, L. R., Sullivan, M. J., & Fidnick, [Hon.] L. (2011).

Association of Family and Conciliation Courts approved

guidelines for court-involved therapists. The Family

Psychologist, 27(1), 20-22.

Greenberg, L. R., Martindale, D. A., Gould, J. W., & Gould-

Saltman, D. J. (2004). Ethical issues in child custody and

dependency cases: Enduring principles and emerging

challenges. Journal of Child Custody, 1, 7-30.

Greenberg, L. R., Gould, J. W., Gould-Saltman, D. J., & Stahl,

P. (2003). Is the child's therapist part of the problem?

What judges, attorneys and mental health professionals

need to know about court-related treatment for children.

Family Law Quarterly, 37, 241-271.

Johnston, J. R. (2007). Introducing perspectives in family law

and social science research. Family Court Review, 45, 15-

21.

Kelly, J. B. (2007). Children’s living arrangements following

separation and divorce: Insights from empirical and clinical

research. Family Process, 46 (1), 35-52.

Kuehnle, K. & Drozd, L. (Eds) (2012). Parenting Plan

Evaluations: Applied Research for the Family Court.

Oxford University Press. New York: Oxford University

Press, Inc.

McKibbon, K.A., Wilczynski, N.L., & Haynes, R.B. (2004). What

do evidence-based secondary journals tell us about the

publication of clinically important articles in primary

healthcare journals? BMC Medicine, 2:33

doi:10.1186/1741-7015-2-33

Mnookin, J. L., & Gross, S. R. (2003). Expert information and

expert testimony: A preliminary taxonomy. Seton Hall Law

Review, 34, 139–185.

Zervopoulos, J.A., (2008). A Legal Perspective. In J.A.

Zervopoulos, Confronting Mental Health Evidence: A

Practical Guide to Reliability and Experts in Family Law.

Chicago: American Bar Association Section of Family La

ASK THE EXPERTS | 92

November 2012

Ten Tips for Judicial Officers Dealing with Self-Represented Litigants in Family Court

Michael J. Dwyer, JD, Portland, Oregon

1. Accept responsibility for the fairness of the pro-

cess

The overwhelming majority of people who appear in

the family courts around the country are self-repre-

sented; their numbers are increasing and they are with

us to stay. Your primary ethical obligations are to en-

sure parties the right to be heard according to law and

to be impartial. The absence of lawyers challenges us

on both of these obligations. The civil litigation system

was designed by lawyers to be used by lawyers. When

both parties are capably represented, it is reasonable

to presume that the design of the system will help to

insure that the resulting decision is a fair one. That pre-

sumption does not apply when one or both parties lack

counsel. In such circumstances, it is your duty to re-

main impartial while giving each party the right to be

heard.

2. Make information about court and its processes

available to parties

Self-represented litigants (SRLs) need information

about law and procedure. While many jurisdictions

have made great strides in this area in recent years, it

remains your responsibility to insure that parties have

the information they need. The single biggest obstacle

to providing needed information to SRLs is the fear of

giving legal advice. It is inappropriate for you or your

staff to give legal advice, so be certain that the diff-

erence is understood. Providing information about the

legal elements of a claim, which statutes apply and how

to access them, about statutory and local procedures

is information, not advice. The hallmarks of legal ad-

vice are telling a party what claim to make, what strat-

egy to adopt or what outcome to accept. A great deal

of useful information can be provided short of that and

it is important that you and your staff to know the diff-

erence and freely provide information.

3. Be prepared

Review the file before the hearing. When the parties

see that you have read and considered the relevant

items they have submitted, they get the unmistakable

message that you care about the case and take it ser-

iously. You should also be prepared for these hearings

to be mentally and, possibly emotionally, taxing. Take

care of your health so that you are up to the physical

challenges of the work.

4. Treat parties with respect

This is both obvious and difficult; suffice it to say that

some SRLs are easier to work with than others. You

are responsible for the tone in your courtroom; pati-

ence and a sense of humor are mandatory. You must

speak in language that the parties understand; refrain

from using legalese. Sarcasm and exaggeration should

be avoided and above all, control your temper—has

anything good ever come from losing your temper on

the bench? Judges have different personalities and

styles of interaction; a friendly businesslike manner is

the ideal, but it’s important to adopt a style that suits

you so you will use it consistently.

Remember also, that the case is not about you; inter-

vene with restraint so that ownership of the case re-

mains with the parties.

5. Clearly explain what will happen at the start of

every hearing and explain why

In order for a SRL to tell their story, they must under-

stand the issue that you are deciding on and what that

party is required to show to get the result they desire.

Parties must also understand the order of proceedings.

If you intend to ask questions during the hearing, tell

parties in advance and explain why. A sincere assur-

ance given to a party that they will have a chance to tell

you their side will go a long way to calming a nervous

SRL. If you are comfortable with doing so, and the

parties do not object, you can ask initial questions of

both parties without compromising neutrality.

ASK THE EXPERTS | 93

6. Remember that 60% of meaning is conveyed

non-verbally

A SRL’s perception is their reality. Even if you are scru-

pulously impartial, giving the impression that you are

bored, unintentionally skeptical, or impatient, will cause

the SRL to not FEEL heard. The importance of tone of

voice, posture, eye contact, forms of address, and what

you do with your hands cannot be underestimated.

Consider videotaping yourself in a hearing to see how

you appear to others.

7. Actively seek the facts to insure that cases are

tried on the merits while remaining impartial

You need the facts to decide an issue. SRLs do not

know what you need to know or how to provide you

with that information. You have broad discretion in how

you conduct the fact-finding process. The scope of

your authority is illustrated by your undisputed ability

to, among other things, modify the usual order of pro-

cedure, ask questions of witnesses, determine the

admissibility of evidence, grant continuances, appoint

experts, and even call witnesses. Provided that is done

consistently and with restraint, you can fully retain your

impartiality and obtain the evidence you need to make

your decision. You should not mistake passivity and

lack of involvement for neutrality.

8. Do not let the rules of evidence prevent a fair

hearing

You have broad discretion concerning the admission or

exclusion of evidence. You are the fact-finder in family

court and are trained in weighing and assessing the

credibility of evidence. There are many exceptions to

rules that require the exclusion of evidence, including

the catchall rules that allow the admission of evidence

found to have circumstantial guarantees of trust-

worthiness comparable to the many exceptions to the

rules of exclusion. It is rare that a SRL will raise an evi-

dentiary objection. The cases that are most challenging

to judges are those in which one party is represented

and the other is not. In most circumstances, if there is

valid objection to a significant item of evidence, ex-

plaining the requirements of admissibility, and granting

a continuance to allow the party to correct the defect

can overcome the objection. Except in the rarest of cir-

cumstances, the represented party will not want to pay

the lawyer for another court appearance, especially

when the evidence is relevant and will be admitted at

the adjourned hearing because the proponent now

knows what is required. Keep in mind that the purpose

of the rules of evidence is to aid in the search for truth

and that the rules are vestiges of a fully lawyered sys-

tem. They should not deprive you of the ability to con-

duct a fair hearing.

9. Give reasons for rulings and decisions

Parties who believe that the decision making process

was procedurally fair are more likely to be satisfied with

the outcome, even if they are not successful. Parties

must be given the opportunity to understand the reason

that you are deciding the way you are. An explanation

in plain language of your rulings is required, and if pos-

sible, you should obtain confirmation from both parties

that they understand the ruling and your reasons for it.

10. Take responsibility for preparation of the order

Perhaps the most surprising feature of civil procedure

to a non-lawyer is the practice of having the prevailing

party, rather than the court, prepare written orders.

SRLs have no idea how to prepare an order, and, while

explaining what one is and how to prepare one is

information rather than advice, it is the very rare SRL

who is capable of using the information correctly. Many

courts have changed the traditional practice and begun

to prepare their own orders. If you intend that parties

follow your orders, it is important that you prepare the

order and deliver it to the parties before they leave the

hearing room. Doing so concededly puts a burden on

the court and staff, but any burden is outweighed by

the benefits.

Michael J. Dwyer, JD, is a circuit court judge in Milwaukee, Wis-

consin. He has been on the bench since August 1997 and is

currently assigned to the Children’s Court hearing dependency

and delinquency cases. He was previously assigned to the

Family Division where he was the presiding judge. Before that,

Judge Dwyer served as the presiding judge of the probate sub-

division, was the small claims judge for a year and served terms

in both Family and Children’s Court. His current interests include

trying to understand what can best be done to mitigate the harm

children suffer at the hands of abusive and neglectful parents.

His family court interests include insuring the quality of GALs in

family cases, addressing the problems presented by self-repre-

sented litigants in family court, improving the way family court

processes cases by facilitating co-operation at all stages, and

improving the family court mediation. Judge Dwyer received his

legal education at Georgetown University Law Center, graduat-

ing in 1975, and his undergraduate degree from the University

of Wisconsin-Madison in 1972. Prior to taking the bench he was

a general practitioner in Milwaukee County for over twenty

years.

ASK THE EXPERTS | 94

December 2012

Ten Tips for Developing Parenting Plans for Special Needs Children

Daniel B. Pickar, PhD, ABPP, Santa Rosa, California, and Robert L. Kaufman, PhD, Oakland, California

The authors presented a workshop at the AFCC 50th

Anniversary Conference in Los Angeles entitled, “Par-

enting Plan Considerations for Special Needs Child-

ren.”

The term “special needs children” is an umbrella de-

signation that encompasses a staggering array of

children who suffer from learning disabilities, profound

cognitive impairment, serious medical illness, develop-

mental disorders (such as autism), physical disabilities,

or severe psychiatric disturbance. Family law profess-

ionals face complex challenges when assisting separ-

ating and divorced families with special needs children.

Below are some general and specific tips for family law

professionals who are helping these families develop

appropriate parenting and child safety plans.

1. Develop a basic knowledge base about the

most commonly seen special needs children en-

countered in family court

While one cannot be an expert about every type of

special needs child, family law professionals need to

have information about the defining characteristics of

the most commonly occurring childhood conditions and

the specific parenting challenges involved in raising

such children. The most commonly seen childhood

conditions encountered by the family courts are:

autistic spectrum disorders; attention deficit/hyper-

activity disorder; learning disabilities, and, especially

with teenagers, serious depression. Therefore, consult

the current literature and empirical research regarding

these disorders when assisting a family with a special

needs child.

2. Familiarize yourself with more unusual types of

special needs children

If working as a mediator, judge, parenting coordinator

or child custody evaluator, you will also likely encounter

less frequently seen types of special needs children,

such as those with cerebral palsy, Down syndrome,

visual or hearing impairment, or high risk medical con-

ditions. In these cases, understanding a child’s best

interests with regard to custodial arrangements re-

quires a grasp of the specific nature of the illness/

condition and the specialized parenting skills needed

to optimize the child’s well-being. Educate yourself on

the nature of the condition and the specific demands

on parents.

3. Use “developmentally appropriate parenting

plans” with caution

Many of the research based “developmentally appro-

priate” parenting plans for children of different ages

may not be best for special needs children. Some of

these children (i.e., those with mental retardation,

Down syndrome, autism) may function significantly

below their chronological age. In many instances, the

need for stability in residential placement and con-

sistent routine may outweigh a custodial schedule that

provides significant time with both parents.

4. In addition to parenting skills, consider which

parent has the most time and means to care for

the special needs child

Considering each parent’s personality, parenting skills

and temperament for caring for a special needs child is

important. However, determining where a child should

primarily reside can come down to the simplicity of

which parent has the most time and means to care for

the child. Many special needs children attend special

schools, have ongoing physical or occupational thera-

py, counseling or frequent medical appointments.

Thus, when considering a physical custody arrange-

ment, it is important to determine whether both or only

one parent has the ability to follow-through effectively

with the child’s ongoing services.

5. Understand which evidence-based treatments

may be necessary, and which parent will be will-

ing to attend and participate

Current trends in evidence-based treatments for mult-

iple childhood conditions (i.e., autism, AD/HD, LD, and

even adolescent depression, where the risk of suicidal

or self-harm behavior may be high) include a parent

ASK THE EXPERTS | 95

participation component. Thus, it is important to deter-

mine which parent will be an active participant in such

treatment. This includes each parent’s relative support

for a medication regimen if medical or psychiatric pro-

fessionals have recommended this.

6. For children with autistic spectrum disorders,

be sure there has been a differential assessment

or understanding of the home environments with

regard to structure, consistency and safety

Many autistic spectrum disorder children have excess-

ive need for environmental consistency and routine.

They may become highly stressed or volatile when

routines are disrupted and there are too many

transitions. Such disruptions can lead to significant an-

xiety, often resulting in behavioral problems such as

severe tantrums, or even self-injurious behavior. Con-

sider which parent is best able to maintain highly struc-

tured schedules and is attentive to physical dangers

and childproofing. Some autistic children may want to

sleep only at one home, and parents may need to

accommodate this basic need, realizing that it arises

out of the disorder and not from a parent-child relation-

ship problem. If an autistic child is capable of tran-

sitioning between homes, adjustment after such tran-

sitions may take longer than for children who do not

suffer from the disorder.

7. Always seek information from key medical, edu-

cational and mental health providers

When crafting the best parenting plan for a special

needs child, seek collateral information from pro-

fessionals who have a history of working directly with

the child and family. These service providers can offer

valuable information about the child’s specific needs,

the parent’s history of understanding and meeting

those needs, as well as the parents’ ability to colla-

borate with each other and treating professionals.

8. Children with AD/HD and learning disorders

need clear and consistent expectations and rout-

ines and parents who can closely monitor com-

pletion of schoolwork

Children with these disorders have a wide range of

characteristics and symptoms, with different levels of

severity. In addition, there is a high incidence of child-

ren who suffer from both AD/HD and a learning dis-

order. To understand the behavioral and cognitive pro-

file of a particular child, professionals should always re-

view school reports and psycho-educational testing. In

general, these children need a great deal of consis-

tency within and between homes, including firm but fair

limit setting and predictability with regard to transitions.

Many of these children also have at least one parent

who has a similar disorder. Collaboration between par-

ents is essential for maintaining routines and close

monitoring of schoolwork. In situations where parents

are unable to work collaboratively, behavioral symp-

toms may worsen and true joint physical custody may

not be in the child’s best interest.

9. With depressed teenagers, preservation of life

and participation in mental health treatment takes

priority over child sharing

It is critical to determine the extent to which each parent

understands the teenager’s problems and is willing and

able to actively support the youth’s participation in

treatment, including compliance with taking prescribed

medications. If the teenager is chronically suicidal or

engages in self-injurious behaviors, it is also important

to determine whether both, or only one parent, can pro-

vide effective supervision and maintain safety precau-

tions. If the teen is unable to function within their usual

school environment, assess each parent’s openness to

alternative and appropriate educational plans.

10. Consider the above tips with caution, as re-

search conclusions are drawn from data about

groups of children, not an individual child

Though we recommend that family law professionals

familiarize themselves with current relevant research,

never lose sight of the fact that each case is unique.

While children and teens within a particular “special

needs” category may have similarities in behavior and

underlying emotional issues, diagnostic categories are

not “one size fits all.” Therefore, while the above tips

are based upon empirical research regarding treatment

efficacy and environmental factors predicting more

positive outcomes, there are some special needs child-

ren who may function well with shared parenting plan

arrangements. Successful shared parenting of a spe-

cial needs child is related to the level of severity of the

problem and the ability of the parents to communicate

about the child and provide as much consistency as

possible between homes.

Daniel Pickar, PhD, ABPP, is a forensic and child psychologist

who conducts child custody evaluations, mediation, co-parent

counseling, and consultation to attorneys. He served for 12

years as the Chief of Child and Family Psychiatry at Kaiser

Permanente Medical Center. He has published articles in the

areas of child custody evaluation, child custody mediation,

learning disabilities in children, and serves on the editorial board

of the Journal of Child Custody.

Robert Kaufman, PhD, ABPP, is a clinical and forensic psycho-

logist whose work in family law includes child custody eval-

uation, mediation, co-parenting counseling and consultation to

attorneys. For over 25 years, he has also conducted psycho-

logical and neuropsychological assessments with children,

teens and adults, has taught and supervised assessment in San

Francisco Bay Area graduate programs. He serves on the

editorial board of the Journal of Child Custody and is past-

president of the Family and Children’s Law Center Board of

Directors.

ASK THE EXPERTS | 96

February 2013

Ten Tips for Doing Forensic Addictions Evaluations

Robert L. Lang, LPC, LAC, Delta, Colorado

Forensic addiction evaluations come in different variet-

ies, from federally regulated Department of Transport-

ation (DOT) Substance Abuse Professional (SAP)

evaluations to court ordered custody and parental fit-

ness evaluations. Although these serve different pur-

poses, there are common elements that need to be

included to make the evaluation process a success.

Different from clinical treatment-driven and diagnost-

ically-oriented addictions assessment, these types of

evaluations need a more objective, substantiated and

confirmatory orientation to hold their weight. The

following ten tips are common elements needed to pro-

vide an effective forensic addictions evaluation.

1. Cover all bases

Disclosures, disclaimers, client rights and responsib-

ilities, and confidentiality statements should be the

starting point for any forensic evaluation. Legal safe-

guards such as these can provide a layer of protection

in the litigious arena of forensic evaluations and act as

an educational guide post for the evaluative process.

Do these documents really protect you from liability?

This type of question is best referred to legal experts,

but the purpose of these papers is largely to document

your informing the client and the subject of the eval-

uation of the process. It is better to have a record of

this if you ever have to justify or defend your role as an

expert witness or forensic evaluator in court.

2. Find the gaps

Biopsychosocial formats assist in establishing a well-

rounded foundation for the evaluation process. There

are many structured interviewing formats, first outlined

by Engel (1977), that provide a broad sample of the

overall level of functioning. These should include the

three primary life domain areas that can be impacted

by an addiction: the biological sphere, including med-

ical and disease history, surgeries, medication use,

current treatment, illnesses and family history of ill-

ness; the sociological sphere including family history,

living arrangements, relationships, finances, work, sch-

ool, home life, hobbies and activities; and the psycho-

logical sphere including psychiatric and treatment hist-

ory, environmental stressors, mental status exams,

and all other risk factors. As the interview progresses,

be sure to highlight problem areas that might be attri-

buted to an addiction that you can revisit later. It’s

helpful to have a clinical view of the client before you

begin the addictions evaluation.

3. Test the waters

Prescreening and screening questions provide a good

way to transition into the addictions assessment. As

the evaluation starts to unfold, this information can be

used to highlight any discrepancies in the client’s

narrative. Using reliable and valid addiction screening

tools is imperative. The eight questions created by

combining the four Screening, Brief Intervention, and

Referral to Treatment/ Alcohol, Smoking and Sub-

stance Involvement Screening Test (SBIRT/ASSIT)

and four CAGE-Adapted to Include Drugs (CAGE-AID)

screening questions provide a normed and stand-

ardized set of questions that set the stage for the

developing addictions evaluation. The screening pro-

cess portion of the evaluation can be expanded by

using other addiction screening tools like the Alcohol

Use Disorders Identification Test (AUDIT) for alcohol

and Drug Abuse Screening Test (DAST) for drugs.

4. Fill in the gaps

Standardized addictions interviewing formats assure

an objective and thorough evaluation process. The

Addictions Severity Index (ASI) is the most commonly

used addictions assessment tool and was the first

standardized assessment tool of its kind to measure

the multiple dimensions of substance abuse. There is

also a “lite” shorter version of the assessment tool that

can be used. Addictions can be assessed across

seven different life domains with this tool, including

alcohol and drug use, psychiatric status, employment

status, medical status, legal status, and family/social

relationships.

5. Take a closer look

After the foundation for the addictions evaluation has

been established, it’s time for a closer look at the de-

tails. Testing the depth, breadth, clarity and content of

the addiction requires more substantive measures. The

ASK THE EXPERTS | 97

Minnesota Multiphasic Personality Inventory-2 (MMPI-

2) may be used for this process. It has three substance

abuse scales, which along with the validity scale may

be used effectively as part of a more comprehensive

evaluative process. The Substance Abuse Subtle

Screening Inventory (SASSI) and Stages of Change,

Readiness, and Treatment Eagerness Scale (SOC-

RATES) are two effective addiction testing tools are.

Make sure you know the tests you use, as well as the

research that backs them up, inside and out.

6. Investigate the facts

Any evaluative process worth its weight backs up the

evidence with collateral sources and this holds true for

addictions assessments, as well. Talking with friends,

family, employers, and professional contacts can shed

light on areas of the addictions evaluation that are at

times over looked by screenings, self-reporting and

testing. This process helps to corroborate and validate

the findings; collateral reports are rarely contrary to the

information gathered during the evaluation. When they

are, this provides additional information about the

underlying addictive processes. Structured and stand-

ardized formats such as the Collateral Interview Form

(CFI), outlined by Miller and Marlatt (1984), can be use-

ful to get the most information from your questions.

Remember that being prepared is the key for success-

fully interviewing collateral sources.

7. Build the report

When crafting the evaluation it’s important to under-

stand the audience and to tailor the report to their

needs. Addiction evaluative reports can be written to

serve many different agencies that often have varying

needs. Make sure you know the referral sources and

that you build these collaborative relationships so you

can develop an understanding of what information diff-

erent agencies need to have included in the report.

8. Do the research

Back up your report with relevant and current research.

The integrity of the report comes from your ability to link

your findings with the corroboration from collateral

sources and support it with objective measures that are

substantiated by research. Professional, peer-review-

ed journals are a valuable asset in the addictions

evaluation process. Much of this research can be acc-

essed online; just be sure you evaluate the source,

and, as with any research, make sure that the metho-

dology is sound. The National Institute on Drug Abuse

(NIDA), the Substance Abuse and Mental Health Ser-

vice Administration (SAMHSA), and the Association for

Addictions Professionals (NAADAC) are all valuable

resources for current research on addictions.

9. Double-check the details

It is critical to review your findings and conclusions.

Evaluations should follow a standard where the logic

model builds on the information gathered and links this

information to other sources, then substantiates the

findings and uses these findings to formulate con-

clusions. Evaluations that overlook this process are full

of surprises and the outcomes often feel out of place.

A good addictions evaluation should have a smooth,

steady flow that can be easily followed; even a non-

expert should understand how the conclusions were

reached. Make sure all pieces of the evaluation fit to-

gether and formulate a solid clinical picture of the

addiction process. Eliminate free floating conclusions

or recommendations that are not supported by the de-

tails of the evaluation. All of the results of the evaluation

must to be supported by the evidence—the backbone

of a good evaluation.

10. Account for individual differences

When writing the report it’s important not to lose sight

of the fact that each individual is unique. While all

addictions may have similar clinical components, using

a “one size fits all” approach to the complexities of each

evaluation can lead the process down a slippery slope.

While the above tips are based on empirical research

and sound procedures, there are cases that may fall

outside these parameters. Successful addictions eval-

uations should be able to account for variables while

ensuring that the report is individualized for its purpose.

While we should look for commonalities and themes,

we must also consider that not all addictions or

individuals are alike.

Bob Lang, LPC, LAC, is a co-occurring forensic expert who

conducts addictions evaluations, custody evaluations, media-

tions, and clinical services. He is a professor of Social and Be-

havioral Sciences at Colorado Mesa University in Grand Junc-

tion. Bob has over 30 years of experience as a co-occurring spe-

cialist, trainer and educator. He has published articles in the

areas of divorce, loss and addiction, and has published a new

book titled, Becoming a Better Parent: Ten Things We Need to

Know About Parenting.

REFERENCES AND RESOURCES

Addiction Severity Index (ASI)

http://adai.washington.edu/instruments/pdf/Addiction_Sev

erity_Index_Baseline_Followup_4.pdf

The Association of Addictions Professional (NAADAC)

http://naadac.org/

Alcohol Use Disorder Identification Test (AUDIT)

http://www.integration.samhsa.gov/AUDIT_screener_for_a

lcohol.pdf

ASK THE EXPERTS | 98

Brown, R. L. & Rounds, L. A. (1995). “Conjoint Screening

Questionnaires for Alcohol and Drug Abuse.” Wisconsin

Medical Journal 94:135-140.

CAGE-AID

http://www.hopkinsmedicine.org/johns_hopkins_healthcar

e/downloads/CAGE%20Substance%20Screeni

ng%20Tool.pdf

Collateral Interview Form (CFI)

http://casaa.unm.edu/inst/CIF.pdf

Department of Transportation (DOT) Substance Abuse

Professional (SAP)

http://www.dot.gov/sites/dot.dev/files/docs/ODAPC%20SA

P%20Guide%20Aug09.pdf

Drug Abuse Screening Test (DAST)

http://www.emcdda.europa.eu/attachements.cfm/att_6148

0_EN_DAST%202008.pdf

Engel, G. L. (1977). “The Need for a New Medical Model: A

Challenge for Biomedicine. Science. Apr 8;

196(4286):129-36.

Screening Brief Intervention and Referral to Treatment (SBIRT)

http://www.integration.samhsa.gov/clinical-

practice/sbirt/screening-page

Lang, R. L. (2010). Becoming a Better Parent: Ten Things We

Need to Know About Parenting. Langco Publishing, CO.

http://www.unhookedbooks.com/Becoming-A-Better-

Parent-p/book424.htm

Lazowski, L. E. & Miller, F.G. (1997). “Estimates of the

Reliability and Criterion Validity of the Adult SASSI-3. The

SASSI Institute. Springville, IN.

McLellan, A. T., Kushner, H., Metzger, D., Peters, R., Smith, I.,

Grissom, G., Pettinati, H., Argeriou, M. (1992). “The Fifth

Edition of the Addiction Severity Index.” Journal of

Substance Abuse and Treatment. 9(3):199-213.

Miller, W. R., & Marlatt, G. A. (1987). “Manual Supplement for

the Brief Drinker Profile, Follow-up Drinker Profile, and

Collateral Interview Form. Psychological Assessment

Resources. Odessa, FL.

Migneaulti, J. P., Adams, T. B., & Read, J. P. (2005).

“Application of the Transtheoretical Model to Substance

Abuse: Historical Development and Future Directions.

Drug and Alcohol Review. September, (24): 437-448.

National Institute on Drug Abuse (NIDA)

http://www.drugabuse.gov/

Rouse, S. V., Butcher, J. N., & Miller, K. B. (1999).

“Assessment of Substance Abuse in Psychotherapy

Clients: The Effectiveness of the MMPI-2 Substance

Abuse Scales.” American Psychological Association.

March, Vol. 11(1): 101-107.

Stages of Change Readiness and Treatment Eagerness Scale

(SOCRATES)

http://casaa.unm.edu/inst/SOCRATESv8.pdf

Substance Abuse and Mental Health Service Administration

(SAMHSA) http://www.samhsa.gov/

Substance Abuse Subtle Screening Inventory (SASSI)

http://www.sassi.com/

ASK THE EXPERTS | 99

March 2013

Ten Tips for Professionals: Using Online Communications in an Ethically Responsible Manner

Allan E. Barsky, MSW, PhD, JD, Lauderdale by the Sea, Florida

Many mediators, parenting coordinators, attorneys and

other family-court-related professionals are using on-

line technologies to facilitate communication between

themselves and their clients. Online communication

technologies may take the form of online video-confer-

encing or teleconferencing (e.g., Skype), text messag-

ing, voice messaging, online chat-rooms, e-mail, online

calendars, online social networking (e.g., Facebook)

and online programs designed to facilitate conflict re-

solution, communication, problem-solving, or imple-

mentation of parenting plans or financial arrange-

ments. The following strategies are intended to help

you navigate the ethical issues that arise should you

decide to use one or more of these technologies.

1. Determine the most appropriate means of com-

munication for a given purpose

As both professionals and clients embrace various

forms of online communication in their private lives, it

may seem appropriate to use these same forms of

communication for professional interactions. Before

using online technology for professional purposes,

however, make sure your choice is deliberate—think

about the ethical issues that may arise maintaining

confidentiality, creating a digital record of events that

could be used in court, responding to crisis situations,

ensuring effectiveness of the intervention when facili-

tated through online technologies, and maintaining

appropriate boundaries in the professional-client rela-

tionship. Consider a situation in which clients live in diff-

erent cities. Videoconferencing may be more conven-

ient and less expensive than bringing everyone to the

same location; if you are mediating, however, will the

process be as effective online as it would be with every-

one in the same room? How will you determine whether

asynchronous or synchronous communication is more

effective?

2. Consult information and computer technology

experts, and take responsibility for understanding

the technology you are planning to use

Family professionals may need the assistance of

computer experts to understand the options avail-able

for online communication, as well as how to manage

various risks to the integrity of your com-munication

(e.g., hacking, worms, malware, IP spoofing). Be

careful about accepting the advice of experts without

understanding the reasons for their advice. Make sure

you educate yourself, as you are the one who is

ultimately responsible for ensuring that your

professional communications are safe and effective.

3. Practice privately before using online communi-

cation professionally

Rather than experimenting with clients, practice the

use of online technology privately. If you are planning

to videoconference, set up a practice conference with

friends or professional colleagues. Role-play a session

to see not only how the technology is operated, but also

how you will manage factors such as lighting, location

of microphones, angles of the camera, and colors. You

may find out that a certain camera angle makes you

appear angry, or certain lighting washes out your facial

expressions. You can enhance the effectiveness of

your professional interactions and avoid certain em-

barrassing situations by practicing with others prior to

using the technology for professional purposes.

4. Consult the research literature for best pract-

ices, effectiveness, and risks of using a particular

online strategy

Although there is relatively little research on the use of

online technology for mediators and other family-court-

related professionals, there is a growing body of litera-

ture on the use of online communication for medical

and mental health practice (e.g. “tele-health”). Look for

research that has gone through a scholarly review

process. Be careful about how to interpret claims made

by private companies trying to sell their products (e.g.,

web-based programs designed to facilitate problem-

solving or conflict resolution, online calendars for man-

aging parenting plans, etc.). Consider, for instance, an

online program that allows family law professionals to

monitor the pick-up and drop-off times as outlined in

the parenting plan or mediation agreement. The pro-

vider may suggest that this program is “an essential

tool” for mediators and parenting coordinators, claim-

ing that it “reduces conflict and helps parents focus on

ASK THE EXPERTS | 100

the best interests of their children.” However, does the

use of online monitoring fit within the role of a media-

tor? Or if a parenting coordinator plans to use such a

program, how does s/he know that this is an effective

tool… or whether it might incite greater conflict bet-

ween the parents, to the detriment of the child?

5. Assess benefits and risks for particular situa-

tions

When determining whether to use a particular form of

online communication, consider the particular situation.

Just because it may be appropriate for some clients

and some professional functions, does not mean that it

is appropriate for all. You might be comfortable comm-

unicating with clients using email in order to set dates

for meetings. You might want to restrict email commun-

ication for discussion of other issues (e.g., commun-

ication of crises… which may be emailed to you in the

middle of the night, or on a weekend when you are not

working or checking email). You might decide to use a

blog to educate clients about children’s reactions to

separation and divorce; on the other hand, you might

decide it is too risky to use a blog to discuss how to

handle “difficult clients’ situations.”

6. Develop and implement risk management strat-

egies for the risks you have identified

When clients enter your office for a private session, you

close the door to ensure confidentiality. This safeguard

is a risk management strategy. Similarly, determine

which risk management strategies that you should

adopt when using online communication. For email,

consider the use of encryption. Also, make sure the

client is the only one who has access to the email. Be

careful about using a client’s work email address, for

instance, as the employer may have a right to access

to this email. If your client is in an abusive relationship,

you may want to forgo email altogether, as the perpe-

trator of abuse may try to gain access to emails that

you send to the client.

7. Develop and implement a system to monitor

and respond to risks

Assume that you want to allow clients to share inform-

ation about how to cope with separation and make use

of community-based resources. If you develop a dis-

cussion board, consider risks such as the use of vulgar

language, sharing private information about the child or

other parent, or suggestions that seem inappropriate.

Rather than allow clients to post suggestions them-

selves, you could have clients send you suggestions

and take responsibility for screening them and posting

ones that are appropriate.

8. Keep abreast of the most current communica-

tion technology, ethics protocols, and research

Note that the best knowledge today could be outdated

tomorrow… or perhaps within a few months. Tech-

nology changes quickly. Threats to the integrity of tech-

nology change. Best practices and our understanding

of the appropriate use of technology change. Agencies,

professional associations, and governments may also

change their views on whether and how to use a

particular form of technology. Do you know, for in-

stance, your professional association’s policy on the

use of smart phones for communication with clients?

Further, what are the relative risks of using landlines

versus smart phones?

9. Maintain clear and appropriate boundaries bet-

ween personal and professional communication

If you allow clients to text or call you on your cell phone,

they may assume they have 24/7 access to you. If you

answer text messages or phone calls from home, you

also need to consider whether you are providing clients

with the same confidentiality as you would provide if

you responded from your office. Make sure you esta-

blish clear and appropriate boundaries concerning the

use of online communication— for yourself and for your

clients. Do you use the same cell phone for work and

personal purposes? If so, have you considered the use

of different phone numbers on the same phone? Also,

have you taken precautions with family members to en-

sure that they do not intentionally or accidentally gain

access to private client information on your phone?

10. Ensure clients have an opportunity to provide

informed consent to the use of online communi-

cation

When using certain forms of online communication with

clients, you may need to explain the technology, how it

is being used, its risks and benefits. Ideally, offer the

client a choice so that there is a true opportunity for

informed consent. Allow the client to ask questions,

and consider meeting individually and in person with

each client first before relying on online technology.

Consider a situation in which there is a history of

intimate partner abuse. How can you ensure that you

have assessed for power and safety issues before

engaging the clients online and how can you allow the

parties to share their concerns in a safe, confidential

manner? By offering, rather than imposing, the use of

online technology, the clients are empowered to deter-

mine whether to accept or reject its use. Although

family law professionals have their own ideas about the

appropriateness, safety and effectiveness of online

communication, we certainly need to listen to our

clients.

ASK THE EXPERTS | 101

Dr. Barsky will present a workshop on this topic, Ethics of Online

Communication at the AFCC 50th Anniversary Conference in

Los Angeles on May 31, 2013 at 3:30 pm. Dr. Barsky is a

professor of social work at Florida Atlantic University, a family

mediator, and Chair of the National Ethics Committee of the

National Association of Social Workers. His book credits include

Conflict Resolution for the Helping Professionals, Clinicians in

Court, and Ethics and Values in Social Work. For further

information, see www.barsky.org/publications/publications.htm.

ASK THE EXPERTS | 102

April 2013

Ten Rules for Settlement Negotiations

Gregg M. Herman, JD, Milwaukee, Wisconsin

It should be easy. Both parties have a lot to lose. There

are substantial risks and certain substantial costs.

There is (usually) a lot of room for compromise. But it’s

not easy. The emotional aspects cloud the rational

ones. Marriages usually end due to the lack of the

exact attributes that make settlement easier: trust,

communication and cooperation. The legal system

does not help as it is, by its very nature, adversarial. So

lawyers need to help their clients get past the emo-

tional impediments—past the lack of communication,

cooperation and trust, to find common ground. Perhaps

some basic rules would be helpful. Like all rules, they

have exceptions. But, if generally followed, it is sub-

mitted that they would make a peaceful outcome in an

adversarial process more likely.

1. Be cordial

This is not as simple as it sounds. Many clients believe

that lawyers should posture and put on a show for their

clients. Of course, that is rarely conducive to a peaceful

resolution.

Lawyers need to carefully explain to the client at the

outset the reason for a cordial atmosphere with oppos-

ing counsel. The explanation may be as simple as

increasing the likelihood of settlement. After all, most

clients want their cases settled. But, sometimes, clients

need to be reminded that settlement is more likely if

both sides behave with cordiality, rather than with

threats and intimidation.

Other clients can be reached through their pocket-

books. If lawyers maintain civility towards each other,

it is far easier to pick up the phone and discuss issues.

If they cannot do so, then the result is innumerable

court hearings. It is, obviously, far cheaper to have a

phone conversation than to go to court.

The method that gets the understanding through to the

client will, obviously, depend on the individual client.

What is important is that the lawyers explain the strat-

egy to the client at the outset.

2. Do not give ultimata

Which of the following tactics are more likely to bring

about a measured response leading to discussions of

settlement and compromise?

Approach A: Here is a settlement proposal. You

have 48 hours to accept it or it is withdrawn.

Approach B: Here is a settlement proposal. It con-

tains what we believe to be reasonable positions

on all issues. If you or your client disagree, please

provide us with the reasons you disagree and what

you think would be reasonable under the circum-

stances.

Clearly, Approach A puts the other side on the defen-

sive. It is essentially asking for a fight and most lawyers

do not need more than one invitation. On the other

hand, Approach B is far more likely to bring out the type

of reasonable discourse that can lead to a settlement.

3. Do not give deadlines

On occasion, I have received settlement proposals with

a deadline for a response. A deadline is really a threat

and usually brings out the type of response discussed

in number two. Usually, these are not great proposals

anyway or there would be no need for the deadline.

After all, if the proposal was really that great, it would

speak for itself and there would be no need for the

accompanying threat.

When the other side gives a "Friday at 5 pm" deadline,

try the following response:

Dear Joe:

My client was going to accept your proposal on

Friday when she noticed that is was 5:10 pm.

If you want the case settled, do not use deadlines any

more than you would use any other type of threat or

ultimatum.

ASK THE EXPERTS | 103

4. Make full disclosure voluntarily and freely

Ask yourself: Are you more likely to settle a case where

the other side has given you everything you need vol-

untarily, freely and openly, or where they stone-wall

discovery? The answer is obvious. Where the other

side treats financial information as if it were a highly

classified government secret, it makes settlement less

likely. This tactic brings out the "What are they trying to

hide?" question. This sort of mistrust is not conducive

to settlement.

When you represent the side with all the information,

give it to the other side before they ask for it. After all,

you know what they will need in order to settle the case.

By providing this information even before a request is

made, you will have accomplished at least two positive

things. First, if any court intervention is requested by

the other side regarding discovery, the court will be

impressed by the voluntary provision of large amounts

of financial documentation. Family courts dislike dis-

covery motions and routinely order everything to be

provided unless absolutely outrageous. Second, and

more important, providing the information voluntarily

creates the type of atmosphere which allows opposing

counsel to enter into settlement negotiations without

the paranoia inherent in the cases where the stone-wall

approach is used.

5. Don’t be afraid of taking the first step

Some lawyers seem to have a fear that making the first

step toward settlement is a sign of weakness. As result,

some cases sit and wait, whereas a settlement con-

ference can begin the process of resolution.

Someone has to take the first step or no case will ever

be settled. To view this first step as a sign of weakness

is a sign of insecurity on the part of the lawyer. On the

other hand, taking the first step can be a sign of stren-

gth: The lawyer is so confident in his or her case, that

the supposition is that the other side will want to settle

to avoid the embarrassment of the eventual defeat in

court.

In addition to the simple concept of just getting the ball

moving, there may be a psychological advantage of

making the first proposal. Psychological research sh-

ows that “branding” plays a large role in decision mak-

ing by creating an expectation of likely results in peo-

ple’s minds. By making the first proposal, not only can

it get the process started, but it may even improve the

final negotiated result.

6. Never negotiate backwards

Backwards negotiating is what occurs when a sub-

sequent offer is worse for the other side than a previous

offer. There are times when new facts may alter settle-

ment positions. However, assuming discovery was

conducted before settlement (as it should be), once a

proposal is made, subsequent proposals should be

closer to the other side's position, not further away.

Backwards negotiating is a form of intimidation. It tells

the other side that they are idiots for not jumping at the

initial offer and that subsequent offers will be less un-

less they jump at the present offer. While the other side

may in fact be idiots, it is not conducive to settlement

to educate them to that fact. Moreover, it is not good

faith negotiating and the response of a party who re-

ceives a backwards offer should be to stop negotiating.

7. Never refuse to negotiate

True, some cases are harder to settle than others and

some cannot be settled. But you will never know unless

you try. Unfortunately, a certain amount of legal ser-

vices later turn out to have been avoidable, but were

utilized in the event that it was thought necessary at the

time. Settlement should be attempted in every case, no

matter how remote the prospect might seem. As Win-

ston Churchill once said, "It is better to jaw, jaw, jaw

than to war, war, war."

This does not mean, of course, that it is never proper

to walk out of a negotiating session, suspend nego-

tiations or even stop them. It does mean that is im-

proper to never enter into negotiations to begin with.

Sometimes, the reluctance to call reminds me of the

teenage boy afraid to call the girl for fear of rejection,

while the girl sits by the phone, hoping for the call, but

too timid to call on her own.

8. Never get personal

There is a scene in The Godfather where a character

is about to be wiped out by the mob. One of the hench-

man tells the victim that the Godfather wants him to

know that it is nothing personal, it is just business.

Clearly, much of what is happening in the divorce is

personal between the parties. It should never be per-

sonal between the attorneys, no matter how sensitive

or important the issues.

ASK THE EXPERTS | 104

9. Never get angry at a settlement proposal

If a settlement proposal comes in writing, we, of course,

immediately send it out to our client. It is not unusual

that our client calls us after reading, livid with anger at

how outrageous the proposal is and how far from what

the client perceives as fair.

True, some proposals are so low or so high as to be

insulting. Some lawyers ask for the stars hoping to get

the moon. Others misinterpret the parameters of rea-

sonable settlement. Whichever is true, at least there is

an attempt at settlement. Rather than get angry, if the

proposal is in the stars, then start subterranean (or

whatever is the opposite of the stars!). If the proposal

is unreasonable due to a misunderstanding of reality,

then educate the other side. But never get angry—any

proposal, even a bad one, is better than no proposal at

all.

10. Be prepared!

Going into settlement negotiations without a prior face-

to-face meeting with your client is as wrong as going

into trial without such a meeting. Worse, it wastes the

time and money of not only your client, but the lawyer

and client on the other side. Spend time with your client

to discuss starting points and ending points for nego-

tiations. And, it wouldn’t hurt to discuss these rules!

In conclusion, following these rules does not, of course,

guarantee a settlement. They do, however, create the

type of atmosphere that makes a settlement more like-

ly. As with many other things in life, improving the odds

is often the best we can do when we do not have full

control over the circumstances. And we owe it to our

clients to do the best we can.

Gregg Herman is a family law attorney with the Milwaukee,

Wisconsin, law firm of Loeb & Herman, S.C. He is a long time

member of AFCC and is currently co-chair of membership for

the Wisconsin Chapter of AFCC. This article is adapted from

his newly published book by the ABA Family Law Section:

Settlement Negotiation Techniques in Family Law: A Guide to

Improved Tactics and Resolution.

ASK THE EXPERTS | 105

July 2013

Ten Tips for Engaging People in Conversation

Sue Bronson, MS, Milwaukee, Wisconsin, and Rebecca T. Magruder, MSW, JD, St. Charles, Missouri

Regardless of which professional hat we wear when

working with clients, in order to help the families we

serve we need to engage them and others, as well, in

conversation. On the surface this may sound like a very

simple concept, but we all struggle with the complex-

ities of understanding what is really important to clients.

The following ten tips are designed to help you provide

opportunities to have the meaningful conversations

where debate turns into dialogue.

1. Be fully present

The external distractions in our environments as well

as the thoughts rattling around in our heads interfere

with our ability to listen carefully and form a connection

with another person. It’s extraordinarily challenging to

be fully present in a conversation when a small elec-

tronic device is buzzing or blinking in your pocket or on

the table. Giving your full attention to the speaker is a

gift that tacitly invites the speaker to stay engaged in

the conversation. Your full attention suggests that you

are truly interested in hearing more.

2. Stay in the moment

So often, our minds race ahead of the speaker’s words

and before we know it, we are three steps ahead of

where we think the speaker is going, which makes it

much more difficult to connect. You may begin to think

of strategies for solving the problem, or likely out-

comes. Even if you are correct in your assessment of

where the speaker is going, the speaker may lose int-

erest in telling you much more because you have

usurped his or her ideas and the speaker no longer has

ownership. A few slow deep breaths help to slow the

mind. Staying in the moment allows you to pick up on

the nuances of the speaker’s thoughts and emotions,

which will yield much more information about what is

really important.

3. Talk less, listen more

Let the speaker be most important. Be respectfully cur-

ious, yet purposeful in the questions you ask and the

statements you make. Hear the speakers’ feelings and

values as well as their thoughts. Have compassion for

their journey, which is unique to them. Most ideas you

think you want to share with the speaker can wait until

later in the conversation, or you may find out that they

need not be addressed at all. When we hold back and

listen more, we can avoid the occupational hazard of

falling in love with our own seemingly wonderful ideas,

and, instead, be dazzled by the brilliance of the speak-

er’s ideas.

4. Listen without judgment or defensiveness

Being in a judgmental frame of mind, which happens to

all of us from time to time, prevents us from hearing

what is truly important to the speaker. When you notice

your judgments or defenses come up, seek a deeper

understanding of the speaker’s experience by asking

questions motivated by genuine curiosity. Ask open-

ended questions about the speaker’s perception of the

situation. Ask how the situation has affected the speak-

er on a personal level. Ask about the speaker’s thou-

ghts for rectifying the situation if the situation is still on-

going and still causing problems. In converting your

judgmental thinking to genuine curiosity, you may

quickly find that your judgments and defensiveness

vanish into thin air because you can now see the

speaker in a totally different light. Even if your judg-

ments are confirmed, you will understand the speaker

at a deeper level.

5. Be a witness to the conversation

Be mindful of the whole communication, the verbal

messages, as well as the non-verbal messages, of the

speaker and the reactions of everyone in the room. Re-

flect what you have heard and seen as well as what

you have not heard. Be clear about your actual obser-

vations versus when you are “filling in the blank.” Ask

the speaker to let you know if you correctly stated what

was going on.

6. Engage with people’s emotions

There is valuable information in the expression of emo-

tions, so don’t discount the emotions as mere venting.

Acknowledge the emotions and validate why the spea-

ker’s emotions would make sense from his or her

ASK THE EXPERTS | 106

perception of the situation. Normalizing emotions all-

ows the speaker to be more open to discussing his or

her values, real concerns, and the meaning of what he

or she has experienced. Understanding the emotions

will help you to understand what is important in the big

picture, as well as in the specific situation.

7. Ask more questions, make fewer statements

Ask lots of open-ended questions. Ask about what is

important to the speaker. Ask questions about their life

experiences. Ask about thinking, values, beliefs, and

emotions. Ask questions that help you understand

what motivates the speaker. Be brave in asking about

the elephant in the room, the dynamics driving the con-

flict, and the unspeakable. Gently shine a light on the

situation. The client’s job is to decide what to do. Your

job is to keep shining the light and supporting people in

difficult and painful conversations.

8. Empower people

Encouraging people to act on their own behalf helps

them to feel in control of their own lives, which in turn

allows them to make decisions in their best interests.

We empower people by listening closely, reflecting the-

ir words and emotions, summarizing the big picture,

and checking in to see what the next step should be.

Reflection helps the speaker to hear him or herself in a

new way and allows for self-correction as necessary.

Summarizing clears the fog, reveals the big picture,

and makes clear what is really important. Checking in

gives control to the speaker in determining the next

step. As a result, people become calmer, clearer, foc-

used, confident, articulate, decisive, and more accept-

ing of the other person’s perspective.

9. Be inclusive of different perspectives

There are many right ways to do things. Encourage

clients to think more broadly. Speak to the clients’

strengths and encourage them to think outside of the

box. Encourage the notion of “Yes, and…” instead of

“yes, but.” “Yes, I see your perspective, and at the

same time, I see the situation a little differently.” En-

courage appreciation in the richness of their differ-

ences and ask how their differences can be merged to

create an outcome that is greater than the sum of its

parts.

10. Take responsibility for your own behaviors

Realize that you are as human as your clients and that

you will make mistakes from time to time. Apologize

when you have wronged others and change the hurtful

behavior. Ask clients what you can do to put things

right. Ask if they would prefer to work with a different

professional. Assess with another professional in a

consultation what triggered your behaviors and what

steps you might take to have a different outcome the

next time your buttons are pushed in a negative way.

The important thing is to learn the lessons that the mis-

take has to teach.

Sue Bronson and Rebecca Magruder will present a full-day

pre-conference institute, Engaging People in Conversation:

Getting Out of the Fight and into Meaningful Dialogue as part

of the AFCC Regional Training Conference, There’s No Place

Like Two Homes: The Complexities of Separation, Divorce and

Co-parenting, November 7-9, 2013, at the Westin Crown

Center in Kansas City, Missouri.

ASK THE EXPERTS | 107

August 2013

Professional Self-Care: Ten Tips for a Quality of Life Check

Leslie Todd, LCSW, ACSW, Baton Rouge, Louisiana

Most of us are responsible for accruing a number of

continuing education hours in ethics. One of the topics

which “ethics” should cover is self-care. After all, when

are we most likely to make serious errors in judgment?

When we are suffering from compassion fatigue, vicar-

ious traumatization, or when we are in denial that we

are not functioning well.

Since I also work with my husband, Alan Taylor, I know

that boundary-keeping between personal and profess-

ional lives is also a challenge. Each of us tries to

monitor our balancing act by occasionally asking the

other, “Quality of life check?” and listening carefully to

the answer. We may do this in celebration, for example

when we are savoring a nice meal on the patio: “Quality

of life check?” “Excellent!” or when we are working on

custody evaluations on a Sunday: “Quality of life che-

ck?” “Terrible! We need to take a break and get this

workload under control!”

This column is dedicated to helping you monitor your

own quality of life. You ARE your instrument of peace-

making and you are constantly barraged with the emo-

tional toxic waste of distressed clients, and maybe a

little bureaucratic dysfunction too. Add to that a few

rough patches in our personal lives and there we are:

somewhere between frazzled and burnt out. So here

are ten tips for a quality of life check:

1. Take an overall assessment of your life to esta-

blish a baseline of your strengths and deficits

Set aside thirty minutes and go to www.realage.com to

take a broad inventory of what you are doing to help

and to harm your health. An even broader range of

questionnaires is available on

www.sharecare.com.

2. Start with a good understanding of your own

temperament to find a baseline for your emotional

health

If you’re not well-grounded in personality types, take

the Myers-Briggs Personality Type Indicator or a sim-

ilar test. Although the Myers and Briggs Foundation

website recommends going to a qualified professional,

you can take a “quick-and-dirty” test online. Oftentimes

professionals without mental health backgrounds don’t

understand just how differently introverts and extra-

verts process stress. This is also very important in

managing our personal and professional relationships.

Are you working “with the grain” or “against the grain”

of your own personality?

3. Exercise

Exercise demands conscientious effort in our seden-

tary world. Be honest with yourself about how much

exercise you get. Is your exercise regular? Is it vigor-

ous? There are plenty of good smartphone apps like

MapMyWalk, NikePlus or Couchto5k to help you start

walking or running and there are gadgets like Fitbit to

monitor your progress. At the very least, get up and

stretch! Your eyes and neck need a break from that

computer or phone screen, and your neck and you

need to get your circulation moving. Walk up and down

a flight of stairs for extra points—without your phone!

3a. But really—stretching won’t cut it—you have to

work out

If that made you yawn, get a coach or a trainer. You

can cut the hourly rate in half by sharing with a friend.

I’ve worked out with my coach for five years because

I’m inherently lazy and I consider this health insurance.

Now I’m in better shape than your average fifty-year

old—which is good, because I’m sixty.

4. Be honest about your eating and drinking

The surveys in #1 will help you determine how well you

are nourishing your body. But I bet you already know

what you could do better—beware if you know you are

drinking to relieve stress. Search “Nutrition Tracker” in

your smartphone app store and choose one of the

many apps to help you monitor your food for a week.

According to the Pennington Biomedical Center, track-

ing your food accurately is one of the best ways to en-

sure compliance with any food plan.

ASK THE EXPERTS | 108

5. Secure the perimeter

Check how well you’re maintaining the boundaries bet-

ween your work and personal lives. (You have a per-

sonal life, right? Ask your loved ones if you’re not sure.)

Establish non-working hours and non-working zones.

At work, train your clients: Use your phone’s alarms to

set a nice chime to go off five minutes before the end

of a client’s allotted time and tell your client about it at

the beginning of the session. Explain politely that you

value their time and want to be sure they have time to

cover everything; the 5-minute alert is to cue them to

be sure they get all the important issues covered. Then

cut them off graciously when their time is up. They

won’t run over a second time. Use another alarm to

train yourself to only check your emails at designated

times and another alarm to remind you to get up from

your desk and stretch. Then turn the darn thing off at

home.

5a. Define a sanctuary and do not allow phones or

other infernal tech devices into your sanctuary dur-

ing designated periods

Your sanctuary is whatever area you designate on any

given day—but it should always include your bed-

room—sleep and intimacy are too important. Put a

message at the bottom of all outgoing texts and emails

saying, “I will return all non-emergency messages dur-

ing regular office hours” to remind people of what reg-

ular office hours are.

6. Have a creative outlet

You give all day, and what you receive is often the

client’s anxiety or negative emotion. Have a creative

outlet—gardening, cooking, painting—whatever lets

you receive the good energy that comes from the

creative part of your brain. When you stop a creative

exercise, you feel refreshed. Bet you don’t say that

after playing Candy Crush or posting pictures on

Facebook for an hour.

7. Take a financial inventory

Money is a form of energy and sometimes we are not

so great at saving, spending or sharing it in healthy pro-

portions. Many young professionals are overwhelmed

by their educational debt and many older ones aren’t

great business managers. Money problems are marri-

age-killers and among the guiltiest of our secrets. Ther-

apy clients will talk about their sex lives more easily

than they will their finances. Please be honest with

yourself about your financial competence and health.

8. Nurture your social network

Even the most introverted among us need social con-

nections. Happiness, especially in later years, is very

much tied to social stimulation. Make time for old fri-

ends. Make time for new friends. You don’t have to be

a party animal; you just need to give and receive friend-

ship and affection. Go where you are cherished.

9. Laugh a lot

Find at least one thing that’s guaranteed to make you

belly laugh. It may be a video or a best friend. For me,

it’s www.damnyouautocorrect.com (warning: langu-

age!), but even after the most difficult parenting coordi-

nation session, I can look at this and laugh until I cry.

Much better than just the crying!

10. Nurture your spiritual life…

…to metabolize that emotional toxic waste you pick up

at work. This is essential in preventing compassion fati-

gue and burnout. Remember, you are not only a giver,

but a receiver and a lot of what you receive is stress.

Consider your spiritual hygiene as you would physical

hygiene: make time for daily prayer or meditation, con-

nection to kindred spirits, and retreat into reflective

time. These are the things that break down that nega-

tive energy and help you process it to leave your body,

mind and spirit.

AFCC members are working with colleagues at the Association

for Conflict Resolution (ACR) on the Eighth Rocky Mountain

Retreat, July 17-20, 2014, at the Shambhala Mountain Center,

Red Feather Lakes, Colorado. For the past seven years, ACR’s

Spirituality Section, founded by Nan Waller Burnett, Lakewood,

Colorado, has sponsored the retreat. Leslie Todd, Baton Rouge,

Louisiana and Christine Coates, Boulder, Colorado, are also in-

volved with the event. A pioneer in body-mind science and

author of more than twenty books, Dr. Joan Borysenko is the

keynote speaker. Space is limited to thirty members from each

organization and members of either organization may register

online.

Leslie Todd, LCSW, ACSW, works as a therapist, parenting

coordinator, domestic mediator and custody evaluator. She was

the founding president of the Louisiana Chapter of AFCC and

currently serves as secretary, webmaster and newsletter editor.

Her new quality of life blog for those in family court and helping

professions can be found here. Her professional website is

LeslieTodd.com, and her paintings can be viewed on Facebook.

ASK THE EXPERTS | 109

September 2013

Top Ten Tips for Interviewing Adolescents

Mindy F. Mitnick, EdM, MA, Licensed Psychologist, Edina, Minnesota

1. Be aware: Adolescent brains are “under cons-

truction”

Brain development continues through adolescence

into the early 20’s. The prefrontal lobe, which regulates

judgment, planning and problem solving abilities, im-

pulse control, organization and priority setting, is the

last to complete development. The combination of

brain immaturity and hormonal changes often results in

decision-making driven by emotions, all-or-none think-

ing and desire for immediate reward.

2. Expect adolescent reasoning to differ from both

children’s and from adults’

Adolescents are typically not concrete and literal in

their thinking as are younger children. Nevertheless,

they may have difficulty taking others’ perspectives—

including their parents’ and siblings’—because they

remain self-focused. Younger teens are less capable

than older teens in imagining the consequences of their

choices. When making decisions, adolescents differ

from adults in considering fewer options, generating

and using less information, and determining the import-

ance of the information they do use. Teens often over-

estimate their ability to handle challenging situations

and make informed thoughtful choices.

3. Understand the need for control

A common theme you may hear from adolescents is

“it’s my life.” Some adolescents have been told that

they can decide the residential arrangements at a fixed

age, such as 13. These teens may present what app-

ears to be a “canned” statement about their preference.

Be careful about jumping to the conclusion that this

statement results from undue parental influence. Some

teens rehearse what they want to say in their interview

because they feel strongly about the outcome of the

parents’ dispute. On the other hand, when you hear

statements such as “we think,” and “we want,” the

adolescent may be aligned with a parent and you will

want to assess whose needs are represented by this

alignment: the parent’s or the teen’s. Some adoles-

cents may express a strong preference for a particular

parenting schedule, while other adolescents will tell

you they want flexibility, meaning they get to decide on

an ongoing basis where they reside. Explore with them

other decisions they have made to assist in deter-

mining whether “flexibility” is a way to avoid structure

and accountability. For instance, you might ask whe-

ther or not they follow a curfew, and whether they have

been in any trouble at school and/or in the community.

4. Avoid pressuring adolescents to state a

preference

Some adolescents actively avoid offering their own

wishes. They may deny having a preference for a var-

iety of reasons: they don’t want to hurt either parent’s

feelings, they fear the consequences of expressing a

preference, sibling(s) or others have encouraged them

to remain neutral, and/or they are protective of a parent

who is emotionally dependent on them. Adolescents

may be focused on what is “fair” to one or both parents

instead of what they really need. Some teens are

acutely aware of the financial ramifications of where

they live, or what schedule they follow, because a par-

ent has shared information about child support, poss-

ession of the family home, and/or the possibility of

having to move to more affordable housing.

You may be able to gently assist an adolescent in ex-

pressing their own wishes with a statement such as, “If

we could just talk about you for a little bit, I wonder what

the schedule would look like?”

5. Building rapport is essential

Interviews should typically begin with a “settling in”

phase to accomplish three goals: 1) Convey to the

adolescent the interviewer’s sincere interest in listening

to them; 2) Inform the interviewer about the teen’s

communications style and abilities; and 3) Explain the

purpose of the interview. One way to start the interview

is to introduce yourself and explain your role, for in-

stance you might say, “My name is ____ and my job is

to talk to/listen to family members to help gather

information about what would be best for the family.”

ASK THE EXPERTS | 110

You may want to ask the teen if they know why they

are talking with you. Don’t be surprised if they say they

do not, since early on in the interview they may be

afraid of making a mistake. Sometimes teens think they

know why they are meeting with you, but don’t have it

exactly right, thinking something along the lines of,

“you’re going to decide where I live.” Unless you are

the judge, a simple correction is helpful, such as “I’m

going to make some recommendations, but I’m actually

not the person who decides. If your mom and dad don’t

agree, the person who decides will be the judge.” De-

pending on your role, you may need to explain the

limits of confidentiality before you begin questioning, a

statement like, and “What we talk about today is not

private. I will be writing a report/talking with your par-

ents telling the judge, etc.” is sufficient.

6. Engage the adolescent’s attention

Ask the teen questions about what’s important to them,

such as sports or other after school activities, music

they enjoy or video games they play. This demon-

strates your willingness to listen to them, rather than

only to gather information to do your job. Be careful

about sharing personal information. Some adolescents

will appreciate hearing about the sport you played in

high school; others will think you are not really in-

terested in them. Depending on your role you may want

to ask what they like about, or would like to change

about, each parent, their relationships with siblings,

their school performance, and any risky behaviors.

“Some of the teens I talk with have tried alcohol/

marijuana…Tell me about your drinking/smoking…”

7. Invite narrative reports

Using open-ended questions will encourage the adole-

scent to provide information from their perspective.

When you ask yes/no questions, you will limit the

information coming from the teen and maximize the

information coming from you: “Tell me about calling

911” vs. “Did you call 911 because you were scared?”

Questions that begin with “Tell me about…”, “Tell me

more about…” and “Then what happened?” tap into

free recall memory, the most accurate source of in-

formation. When the teen begins a narrative answer,

avoid interrupting them as it can disrupt the memory.

You can go back and ask for details after they are

done, by following up with something like, “You said

your mom was really mad at your sister. Tell me more

about that.”

8. Understand their time perspective

Although adolescents understand the meaning of time

concepts such as “last year,” their focus tends to be in

the here-and-now and the immediate future. Asking

questions about who usually helps them in various

ways, with homework for example may only generate

answers about this current school year. Similarly, ask-

ing them to project into an unknown future, (“what if”

questions) may simply produce an “I don’t know”, res-

ponse, rather than encourage them to think through

possible outcomes.

9. Signal what your topic is

You may know all of the topics you plan to cover, but

the teen will do best if you let them know what you are

talking about. Statements such as, “Now I want to talk

about how you’ve been doing in school” and “I want to

talk about something different now” reduce confusion

and enhance the teen’s sense of competence in the

interview.

10. Pay attention to how you end the interview

Ending the interview on a respectful note will help re-

duce the teen’s anxiety about what they said and didn’t

say. Thank them for working hard and answering so

many questions. Consider an open invitation to tell you

more, when you’re wrapping up you could say “I’ve

asked a lot of questions today, but I might have missed

something important. Is there anything you want to tell

me?” Also, consider offering the opportunity to ask any

questions they might have, such as “Since I’ve asked

you so many questions, it seems only fair that you

could ask me something.” By asking this question, you

may learn something that has been on the teen’s mind

through the whole interview, for instance, “When will

this go to court?”

Mindy F. Mitnick is a Licensed Psychologist practicing in Minn-

eapolis. She received a Master of Education from Harvard Uni-

versity and a Master of Arts from the University of Minnesota.

She specializes in work with families in the divorce process and

with victims of abuse and their families. Ms. Mitnick has trained

professionals throughout the country and abroad in identification

and treatment of child abuse, the use of expert witnesses in child

abuse and divorce cases, effective interviewing techniques with

children, interventions in high-conflict divorce and the impact of

psychological trauma. She has been a speaker for AFCC, the

National Child Protection Training Center, National Center for

Prosecution of Child Abuse, National Association of Counsel for

Children, the American Academy of Matrimonial Lawyers and

numerous statewide multidisciplinary training programs. Ms.

Mitnick has written and taught extensively about the assessment

of child sexual abuse allegations during custody disputes. Ms.

Mitnick served as a member of the ABA Criminal Justice Section

Task Force on Child Witnesses and as a member of the AFCC

Task Force on Court-Involved Therapy. She is serving her

second term on the Board of Directors of AFCC.

You can learn more on this topic at a workshop, Approaches to

Hearing from Adolescents on Saturday, November 9 at the Reg-

ional Training Conference in Kansas City. Kirsten Lysne, PhD

and Kevin McGrath, JD of Minneapolis, Minnesota will present

with Mindy Mitnick. More information.

ASK THE EXPERTS | 111

October 2013

Ten Tips for Developing and Drafting Effective Parenting Plans in Mediation

Donald T. Saposnek, PhD, Family Mediation Service, Aptos, California

A mediation process that is thoughtful, respectful, and

paced to fit the communication style and needs of the

parents will increase the chances of crafting a clear and

comprehensive parenting plan. Such a process offers

a supportive and cooperative context, promotes direct

communication between the parents, empowers the

parents to make their own decisions, remains sensitive

to their unique couple dynamics, and maximizes a tone

of flexibility for future modifications to their agreement.

While this context is very important, even more is

needed to develop an effective parenting plan. The

following ten tips will ensure a well-drafted product.

1. Set the stage for the mediation process

Explain to the parents the purpose, contractual and

functional nature of the parenting plan, and that a judge

will sign the agreement and that it will become a court

order, enforceable by the court. Help them understand

that they can control the outcome of the mediation,

while you will control the process. Inform them that a

parenting plan is an organic document that can (and

should) be modified as the children get older and as

their respective life circumstances change over time.

Let them know the logistics of the ways in which they

can modify their agreement in the future. Request that

they follow basic rules of good communication; e.g. use

“I” statements and active listening, no interrupting, no

cursing at each other, etc.

2. Gather essential information

Reduce gathered information to behavioral and obser-

vable form, as much as possible. Base any recom-

mendations on specific information included, rather

than on vague “impressions.” The information gathered

should separate that which is essential from that which

is non-essential. For example, essential information

might include questions about the parents’ work

schedules, the child’s adaptability, and the pre-divorce

parental pattern of time-sharing with the child. Non-

essential information is usually offered spontaneously

by each parent in hopes of positioning himself or

herself with the mediator in a more favorable light. Non-

essential information includes such things as how

many affairs he/she had, how he chose bowling over

spending time with the children, or how she didn’t feed

the children healthy foods. Distinguishing essential

from non-essential information can be accomplished

by asking the right questions (with relevant focus on

developing a parenting plan for the future) and deflect-

ing wrong answers. Essential information requires get-

ting both parents’ views on everything.

3. Incorporate the developmental needs of the

children

This includes the ages of each child and the develop-

mental, psychological, physical, social, and emotional

functioning of each child, before the parental separ-

ation and currently. It is also important to ask about any

special needs of each child (i.e. medical, develop-

mental disorders, psychological/ behavioral disorders);

these are often overlooked by mediators (and judges)

when developing parenting plans (Saposnek, et al.

2008). Asking also about unique temperament differ-

ences and challenges of each child (Saposnek, 1998;

2006) can help guide a discussion that leads to creat-

ing a maximum “goodness of fit” with each parent. For

example, it may lead to more time with a parent who

has greater tolerance for standout temperament chal-

lenges, such as a child with a very high activity level.

Or, it may lead to less school-day time in a household

with lots of people and noise, for a child with a very

sensitive temperament who would be overwhelmed

trying to do daily homework in such a setting. Inter-

viewing the child, who may well know what is in his or

her best interests, can assist these inquiries. While

only a minority of mediators ever interview children

(Saposnek, 2004), it is very helpful in gathering accur-

ate information. In fact, judges have been interviewing

children quite successfully (Birnbaum and Bala, 2010).

4. Assess information for feasibility and enforce-

ability

The clauses in parenting plans need to be feasible, that

is, realistic in a way that parents can actually carry out

what they intend to carry out, and enforceable as a

court order. For example, including a clause that states

ASK THE EXPERTS | 112

something like, “In five years, Little Richard will live with

Father full-time” or, “Mother agrees to never drink alco-

hol again,” are non-feasible clauses. For one, the best

interests of Little Richard will realistically need to be re-

assessed in five years and, at that time, living with

Father full-time may not be in his best interests. Such

a clause is not feasible since the statute can override

the parents’ best intentions. And, alcoholics cannot

promise to never drink alcohol again; perhaps they can

agree to not drink today! Again, such a clause is not

feasible and does not belong in a parenting plan. A

mediator can include a clause that states the parents’

intent, but the parents should be very clearly informed

that some clauses cannot and will not be enforceable

by the court. For example, a court cannot enforce clau-

ses like, “No bad-mouthing of each other in front of the

children.” However, the parents should be informed of

the consequences to their children in doing so.

Feasible clauses that can be documented and enforc-

ed are ones that describe things such as factual pick-

up and drop-off times, each parent’s rights to contact

the child’s school and to obtain educational, medical,

and psychological records of the child, etc.

5. Create a comprehensive structure of the parent-

ing plan

Minimally, the essential elements of a comprehensive

parenting plan should include the following sections:

designation of legal custody, a regular school-year sch-

edule, a summer schedule, a holiday and vacation

schedule, a series of special, specific clauses and con-

ditions. These special clauses can include statements

that describe the agreed-upon rules of communication

and conduct between the parents (e.g. “The parents

agree to use text messaging for regular scheduling

matters and phone calls for emergency situations, such

as…”). This section can also contain agreements about

offering the first option for childcare to the other parent,

who the parents agree can and cannot care for the

child if neither parent is available, etc. A procedural

statement should be included for how future modify-

cation of the plan will be made (“Both parents agree to

return to mediation before taking any future separate

legal action”). Within each of these sections, varying

degrees of detail and elaboration can be added as

needed for the particular case dynamics. Remember

that mediation agreements frequently breakdown be-

cause of the inclusion of inappropriate, insensitive, im-

balanced or unfeasible clauses, the omission of ap-

propriate and necessary clauses, and the absence of

an agreed-upon format for making future modifications

of the plan. A comprehensive parenting plan can re-

duce the chances of an agreement breaking down for

these reasons.

6. Use child-centered wording

While many parenting plans still are written using trad-

itional legal language such as, “Primary physical cust-

ody to Mother and reasonable visitation to Father,” it is

time to begin using language that specifically focuses

on the child. This requires the mediator to make the

conceptual shift from parent-focused wording, such as:

“Mother shall have primary physical custody of Ricky,

and Father shall have visitation rights on alternate

weekends, one weekday evening, and a month in the

summer,” or, “Mother will have custody during Thanks-

giving, and Father will have custody during Christmas,”

to child-focused wording, such as: “Ricky will share

time with his parents according to the following sche-

dule: He will be with his Father (or, “Father will be res-

ponsible for him...”) from Friday at 5:00 p.m. until he re-

turns to school on Monday, weekly. He will be with his

Mother from Monday after school until Friday at 5:00

p.m., weekly” or, “Ricky will share time with his parents

during holidays according to the following schedule: On

Thanksgiving, he will be with Father from... and with

Mother from....” This requires the mediator (and the

parents) to shift from thinking of parents as “owning

their children” to thinking of children as “sharing their

parents.”

7. Use clear wording

Many mediation agreements break down because of

the use of vague wording in the clauses, such as “Pri-

mary custody to Mother, and alternate weekends to Fa-

ther.” Such wording does not help the parents to know

when exactly the child will be with each of them. For

example, Dad may interpret this to mean that the alter-

nate weekends begin on Thursday night and end Mon-

day morning, while Mom may interpret it to mean “Sat-

urday at noon until Sunday at 5:00 p.m.” Such vague-

ness of wording can cause more conflict between the

parents than they had before coming to the mediator!

In contrast, a clearly worded clause might read, “The

children will be with Father on alternate weekends

beginning the weekend of October 30, 2013. On the

weekends in which they are with him, Father will pick

up the children from Mother’s house on Friday between

4:00 p.m. and 4:15 p.m., and Mother will pick them up

from Father’s house on Sunday between 8:00 p.m. and

8:15 p.m. During transfers, both parents agree to re-

main in their cars while waiting for the children.” Such

verbal clarity will reduce conflict over the rules of

engagement and is likely to be much more enforce-

able, if the need for enforcement arises.

ASK THE EXPERTS | 113

8. Match the degree of detail needed with the de-

gree of inter-parental conflict

A good rule of thumb regarding the degree of detail is

to utilize Connie Ahron’s (2004) original typology of

post-divorce spousal relationships: Perfect Pals,

Cooperative Colleagues, Angry Associates, and Fiery

Foes. This typology provides a simplified and meaning-

ful grid for determining the degree of detail needed for

a particular set of parents. In general, the lower the

level of conflict, the fewer details are needed, and the

higher the level of conflict, the more details needed.

Some examples follow:

Perfect Pals need: “Ricky will share equitable time

between his parents each week, with details to be

arranged between his parents.”

“Ricky will share all holidays with both parents, with

details to be arranged between his parents.”

Cooperative Colleagues need: “Katie will also

share time with Father, weekly, in mid-week, in the

following alternating pattern: Following a weekend

in which he does not see Katie, she will be with him

from Tuesday at 9:00 a.m. until Wednesday at 1:00

p.m. Following a weekend in which he does see

Katie, she will be with him on Wednesday from 9:00

a.m. until 7:00 p.m.”

“During the Christmas holiday period, in even-

numbered years, Katie will be with Mother from De-

cember 20 at 5:00 p.m. until December 24 at 5:00

p.m., and then with Father from December 24 at

5:00 p.m. until December 28 at 5:00 p.m. In odd-

numbered years, this pattern will reverse between

the parents.”

Angry Associates need: “Each parent agrees to

have a separate set of clothes, diapers, carrying

bags, car seats, and other care-giving supplies for

beginning each ‘on-duty’ time with Angela, in order

to eliminate disputes over misplaced, lost or

insufficient clothing and supplies available to her.

Moreover, the parents agree to maintain a ‘transfer

outfit’ that Angela can wear only during transfers

between parents, which effectively eliminates com-

plaints about ‘lost clothing.’ Upon receiving Angela

from the other parent, each parent will carefully

place the ‘transfer outfit’ by the door, and upon re-

turning to the other parent, Angela will once again

be dressed in it.”

Fiery Foes need: “All transfers of Russell will take

place at the Main Street Police Station, with the

parent who drops off Russell leaving the premises

20 minutes before the picking-up parent arrives.

Father will arrange for the police secretary to retain

Russell for those 20 minutes, so that the parents

never see each other during transfers of Russell.”

Sometimes, too many details can be as bad as too few

details, as it can set expectations for inflexibility and

non-cooperation between the parents. The mediator

needs to make a judgment call regarding this on a

case-by-case basis.

9. Balance parental concessions

Because of the frequent heightened sensitivity of par-

ents in mediation, the mediator needs always to be

monitoring the agreements to make sure that the con-

cessions are balanced between the parents. Too many

concessions by one party are likely to result in a flare

up of anger and resistance. There is an art to balancing

the concessions of the parties. It requires vigilant awar-

eness of the reactions of each party while the other

asserts a need.

An example of an imbalanced, one-sided concession

likely to get a flare up from Dad is: “Father agrees to

refrain from using cocaine and alcohol while driving the

children, or while in the presence of the children.” But,

re-written as a balance concession (assuming that

Mom can tolerate it), it would read: “Both parents agree

to protect their children by not exposing them to any

use of illicit drugs or alcohol while the children are in

the care of either parent, and they agree not to drive

the children while under the influence of alcohol or any

illicit drug.”

10. Consider partial and/or short-term agreements

Rather than accepting an impasse in mediation as a

failure of the process, it is often the case that a couple

will accept a partial agreement rather than no agree-

ment. The final wording of a partial agreement (pre-

ceded by all the clauses that they did agree to) could

read as follows: “Because the parents are unable to

reach agreement on the issue(s) of… they agree to re-

quest that the court make the decision(s) for them on

this/these last issue(s).”

Or, a partial agreement with options could read: “The

following possible plans for sharing the children were

developed by the parents (Plan A; Plan B). Because

the parents were unable to decide between these op-

tions, they are requesting the court decide on one of

these options for them.”

A short-term agreement of three or six months is often

an impasse-breaker, allowing each party face-saving

and giving time for the emotional process of divorce to

ASK THE EXPERTS | 114

do its magic and soften the parties so that they are

more ready to reach agreement when they next meet

in mediation.

Donald T. Saposnek, PhD, has been a clinical-child psychologist

and family therapist since 1971, a child custody mediator and

trainer since 1977, a long-time member of AFCC, a founding

board member of the Academy of Professional Family Mediators

and editor of The Professional Family Mediator. He is the author

of Mediating Child Custody Disputes: A Strategic Approach, and

co-author of Splitting America: How Politicians, SuperPacs and

the News Media Mirror High Conflict Divorce. He has been

teaching on the psychology faculty at the University of Califor-

nia, Santa Cruz since 1977. His website is:

www.mediate.com/dsaposnek/.

REFERENCES

Ahrons, C. R. (2004). We’re still family: What grown children

have to say about their parents’ divorce. New York:

HarperCollins.

Birnbaum, R. & Bala, N. (2010). Judicial interviews with children

in custody and access cases: Comparing experiences in

Ontario and Ohio. International Journal of Law, Policy and

The Family, December.

Saposnek, D.T. (1998). Mediating child custody disputes: A

strategic approach. Revised Edition. San Francisco,

Jossey-Bass.

Saposnek, D.T. (2004). Working with children in mediation. In:

J. Folberg, A.L. Milne and P. Salem (Eds.). Divorce and

Family Mediation: Models, Techniques, and Applications,

N.Y.: Guilford.

Saposnek, D.T. (2006). The use of temperament in clinical

practice. Bulletin of the American Academy of Clinical

Psychology. Vol. 10 (1), Spring.

Saposnek, D.T., Perryman, H. Berkow, J. and Ellsworth, S.

(2005). Special needs children in family court cases. Family

Court Review, Vol. 43 (4), October.

ASK THE EXPERTS | 115

December 2013

Ten Tips for Professionals on Domestic Violence and Cultural Contexts in Asian Communities

Chic Dabby, [email protected], Asian & Pacific Islander Institute on Domestic Violence, www.apiidv.org, San Francisco, California

Domestic violence is a systematic pattern of abusive

behaviors that include physical battering, coercive con-

trol, economic abuse, emotional abuse and/or sexual

violence. It is intended to gain or maintain power and

control over a romantic or intimate partner to intimidate,

frighten, terrorize, humiliate, blame or injure. Domestic

violence is more than a series of incidents. It is about

living in a climate of fear and disempowering restric-

tions that threaten and affect one’s selfhood, psycho-

logical well-being, health, economic security, and the

emotional labor of parenting. The presence of domestic

violence tells us about the presence of inequality in a

relationship, the extent of the abuse tells us about the

extent of the inequality. Addressing domestic violence

in an ethnic community, in this case, Asians, typically

raises questions about the role of culture and how a

deeper understanding of cultural issues can guide and

improve practice.

1. Culture is more than ethnicity; culture is con-

text

Culture defines the spaces within which power is ex-

pressed, gender, and other relations are negotiated,

and traditions are re-designed. There are three inter-

secting cultures that affect everyone because we all

have cultural identities: a culture of violence that makes

domestic abuse, sexism, and the devaluation of wo-

men normative; the culture of ethnic communities en-

forcing gender roles; and the culture of systems that

domestic violence victims/survivors and their advo-

cates have to contend with. Culture is responsible for

how domestic violence is viewed: it is used as a con-

venient excuse for abuse by communities, or as en-

couragement to racial stereotyping by systems. Dom-

estic violence must be understood within these inter-

secting cultural contexts for professionals to design

meaningful interventions that acknowledge how surv-

ivors negotiate the barriers and gateways cultures

Centers for Disease Control. National Intimate Partner and Sexual

Violence Survey (NISVS). Atlanta: 2010.

Yoshihama, M. and Dabby, C. Facts & Stats Report: Domestic

Violence in API Homes. San Francisco: Asian & Pacific Islander Institute

on Domestic Violence, 2013.

afford them. Culture is also the site of being nurtured

by community, a vital link that risks getting broken if

services for survivors are only predicated on leaving.

The importance of connection to community guides the

many promising practices designed to serve Asian

immigrant and refugee survivors.

2. Domestic violence is gendered; it is not gender-

neutral

Women are disproportionately affected by gender-

based violence (GBV). The CDC reports the following

lifetime prevalence rates: 1 in 5 women and 1 in 71

men have been raped; 1 in 4 women and 1 in 7 men

have experienced severe physical violence by an inti-

mate; and 1 in 6 women and 1 in 19 men have been

stalked.

A compilation of community-based studies

estimates domestic violence prevalence rates at 21-

55% for Asian women.

In a 6-year period, 160 Asian

intimate homicide cases resulted in 226 fatalities, 83%

of perpetrators were men.

In many Asian commun-

ities, women who use physical violence and coercive

control usually target other women, i.e., their daughters

or sisters-in-law. Asian families that subscribe to very

traditional ideas of women’s role and place in society

compound the gender inequality that domestic violence

is rooted in. Professional neutrality is imperative: it

doesn’t however mean overlooking the dispropor-

tionality of women’s victimization.

3. Assess if physical violence includes abuse by

in-laws

The dynamic of multiple perpetrators against a single

victim is present in some Asian families (similar to elder

abuse in all communities). So, in addition to her hus-

band, a woman’s mother-, father-, sister- and/or bro-

ther-in-law may abuse her—employing a range of tac-

tics. Professionals should assess the presence and

Dabby, C., Patel, H., Poore, G., Shattered Lives: Domestic Violence,

Homicides & Asian Families. San Francisco: Asian & Pacific Islander

Institute on Domestic Violence, 2009.

ASK THE EXPERTS | 116

effects of multiple batterers abusing a single victim in

an extended family home.

(a) Do not assume there is no domestic violence

because the intimate partner is not abusive.

Battered women may be viewed as denying,

minimizing or not co-operating because a pro-

fessional’s questions assume the intimate part-

ner is the batterer.

(b) Explicitly gather additional information about who

other abusers are. Systems may respond inade-

quately, given a lack of understanding or training

about multiple batterers. Practitioners, therefore,

should rely on getting this information directly as

it may not appear in regular documents such as

police or medical reports.

male relatives are part of a support system.

Greater family collusion accompanies multiple

abusers. Male or female women relatives from

the extended family or the family of origin are not

necessarily a battered woman’s allies or friends.

Even if they are not actively violent, they may

collude with the other abusers.

4. Identify if emotional abuse includes ‘push’ fact-

ors that coerce women to exit the relationship

Asian women may more frequently experience ‘push’

factors out of a relationship than ‘pull’ factors that draw

her back into the relationship—signaled, for example,

by an abuser’s apology/contrition. Push factors (e.g.,

‘get out; I never wanted you anyway’) constrict auto-

nomy and decision-making. Women experiencing push

factors early on in the relationship will not be in a posi-

tion to make decisions, and what may look like an

inexplicable decision, e.g., to leave without her child-

ren, could in fact be a function of push factors exerted

by a single batterer and reinforced by multiple batter-

ers. Professionals can then understand the context for

a survivor’s poor decision-making skills, lack of agen-

cy, and/or anger at being pushed out of her home.

5. Evaluate how maternal authority and child safe-

ty are compromised by multiple abusers

Custody evaluators may view an extended family home

as a better environment for children post-separation, a

home with several family members who can help care

for the child, rather than a home with a single parent.

However, multiple abusers increase children’s expo-

sure to domestic violence. For children exposed to

domestic violence perpetrated by their father and by

Yoshihama, M., Bybee, D., Dabby, C., Blazevski, J. Lifecourse

Experiences of Intimate Partner Violence and Help-Seeking among

Filipino, Indian and Pakistani Women: Implications for Justice System

Responses. Washing-ton, DC: National Institute of Justice, 2011.

other family members in the extended family home,

their access to maternal nurturing can be blocked by

the multiple family members while they are living in the

house together. Mothering in an abusive extended

family home can be severely undermined by multiple

perpetrators and maternal decision-making inhibited by

push factors. Custody evaluators should identify these

factors pre-separation to assess for them in post-sepa-

ration parenting arrangements; and scrutinize paternal

and familial allegations against the mother of child

abuse, neglect or abandonment in light of multiple

abuser dynamics. In addition, when multiple individuals

give the same story of maternal culpability and paternal

scrupulousness, the credibility of mothers, and even

their children, is jeopardized or dismissed. In Asian

families with acculturated, English-speaking fathers

and recently immigrated non-English-speaking moth-

ers, a further credibility gap develops to be exploited by

abusers.

6. Consider a range of sexual violence perpetra-

tion

In a study that interviewed 143 domestic violence

victims, 56% of Filipinas and 64% of Indians reported

sexual violence by an intimate.

Asian women’s exper-

iences of sexual coercion and violence can include

being forced to watch and mimic pornography; bodily

humiliation; forced (contra arranged) early marriage;

being forced to marry one’s rapist; and/or sexual

harassment by male in-laws. Asian women’s reluc-

tance to discuss sexual violence may be stereotyped

as prudery, but it is influenced by the tight nexus of

visiting shame on the family through public disclosure;

by significant histories of sexual abuse (sexual vio-

lence starts early in all cultures

); and victim-blaming

attitudes from communities and systems. Given these

cultural contexts, professionals cannot limit their in-

quiry to intimate/marital rape, and need to build a reper-

toire of sensitive questions to gather a sexual violence

history.

7. Be alert to abuses that exploit victims’ immi-

gration status and refer them to immigration lawy-

ers/services

Asian immigrant women face particular vulnerabilities

when their immigration status is insecure. Most often,

they fall out of status because abusers make false

declarations to immigration authorities; refuse or delay

filing paperwork that converts temporary status (e.g., a

3-month fiancée visa) to permanent residency; hide

In the United States, almost half of female victims experienced their

first rape before age 18, and a quarter of male victims were age 10 or

younger.

ASK THE EXPERTS | 117

important documents like birth certificates or pass-

ports, so she cannot prepare her own application.

Abusers may threaten deportation and loss of access

to children if she reports domestic violence; abandon

her a few months after marriage; or severely isolate her

from family and friends. Domestic violence victims

might behave compliantly in the mistaken belief that

their immigration problems will be resolved, and at

least they will not be forced out of the country and

permanently lose access to their children. Practitioners

should collaborate with or refer immigrant battered

women to programs that help them obtain legal relief

through U-Visas.

8. Do not accept culture as an explanation for

domestic violence, or as a barrier to solutions

When someone justifies domestic violence by claiming

“this is how women are treated in my culture,” what’s

being described is the culture of patriarchy, the culture

of gender oppression, the culture of sexism. Cultures

of patriarchy differ from place to place and in how

rigidly they are maintained over time—the culture of

patriarchy on an army base in Kentucky is different the

culture of patriarchy in rural Chile, or in metropolitan

London, etc. Cultural explanations of domestic vio-

lence can help professionals understand how tightly

prescribed and rigid gender relations are within the

community; how their interventions will challenge con-

ventional practices; and what battered women are up

against (e.g., tradition requires silence) and what risks

they may encounter (e.g., from disclosure).

Because we are talking about domestic violence, a

gender lens is at times equally, or more, illuminating

than a cultural one. For example, a rural shelter frames

an Indian woman’s reluctance to use common bath-

rooms as a function of her cultural attitudes to nudity

and contrasts them to American women’s attitudes to

nudity. The more appropriate question is: what would

any abused woman in this situation want—privacy for

sure; and not how an Indian woman’s attitude to nudity

impinges on her ability to shower in front of others.

Practitioners should ascertain if the lens of gender ans-

wers a question or suggests a solution more effectively

than the lens of culture.

9. Use an understanding of cultural differences to

prompt better interventions, rather than confirm

or sensationalize stereotypes

Clearly, whilst domestic violence is a universal pheno-

menon, the cultural expressions of it differ, and some

types of violence can be more horrific than others bas-

ed on what people are exposed to in their own culture.

For example, burning a woman to death or shooting

her dead—the former may seem more disturbing than

the latter and our cultural stereotypes step in to confirm

this view, but in fact both acts are equally awful. If

practitioners don’t adequately guard against cultural

biases, they might risk misunderstanding their client’s

narrative. So, in the above example: asking if a batterer

has threatened to use a gun does not rule out homicide

risk by other means. While it is not possible to under-

stand/learn all cultural contexts, it is possible, as pro-

fessionals, to be trained and guided by best practice

standards that mitigate cultural bias.

10. Considerations in serving clients with Limited

English Proficiency (LEP) Interpretation:

Arrange for professional in-person or telephonic inter-

preters for parties with Limited English Proficiency for

all meetings. Allow extra time to familiarize yourself

and all parties about how to work with an interpreter;

as well as for the sessions. The same applies to work-

ing with sign language interpreters for a deaf client. Do

not have adult or child family members, friends, or

other bi-lingual individuals interpret for a client—and

especially not the alleged abuser. Such practices can

vitiate practitioner-client confidentiality. Fluent bilingual

professionals could, of course, practice in a foreign

language (and produce a report in English).

Test Instruments: Standard psychological tests for in-

dividuals with limited English proficiency are contra-

indicated. They would require every item to be sight

translated and every response interpreted—introduce-

ing unknowable degrees of error and jeopardizing the

integrity of assessment methods and test result valid-

ity.

Bias: Immigrant or refugee families who lack profic-

iency in English should not be considered uneducated

or disadvantaged at parenting; and greater credibility

should not be attached to more acculturated fathers.

To learn more on interpretation (‘translation’ refers to rendering

written text from one language into another), go to

http://www.apiidv.org/files/Interpretation.Resource.Guide-APIIDV-

7.2010.pdf.

ASK THE EXPERTS | 118

February 2014

Ten Serious Errors made by Custody Evaluators

David A. Martindale, PhD, ABPP (forensic), St. Petersburg, Florida, and Jeffrey P. Wittmann, PhD, Albany, New York

David Martindale served as the reporter on the AFCC

Task Force on Model Standards of Practice for Child

Custody Evaluation. The AFCC Model Standards of

Practice for Child Custody Evaluation were adopted by

a unanimous vote of the AFCC Board of Directors in

May 2006.

Regular readers of the AFCC eNEWS are aware that

the title of this column ordinarily begins with the words

“Top Ten.” Neither Jeff nor I, nor our co-presenter, Tim

Tippins, really knows which of the errors made by

evaluators might legitimately be classified as the top

ten, nor do we know whether, in this context, “top” rela-

tes to frequency or to severity. We therefore sought,

and obtained, a dispensation, allowing us to tweak the

title.

1, 2. Insufficient professional preparation…

…manifests itself in many ways, two of which are

failure by evaluators to develop forensic interviewing

skills and failure by evaluators to familiarize them-

selves with applicable statutes and precedents.

Interviewing. Treatment providers learn that effect-

ive listening often requires resisting the impulse to

interrupt. In a treatment context, permitting patients

to discuss what they believe to be important faci-

litates the development of the therapeutic alliance.

Forensic practitioners conducting child custody

evaluations must, in their interviews, gather inform-

ation that will shed light on the disputed issues

enumerated in a court order and must gather infor-

mation that bears upon the parenting strengths and

deficiencies of the litigating parties. They must

pose follow-up questions and ask how certain as-

sertions might be verified.

Statutes and Precedents. In the United States,

forty states have statutes in which the factors to be

considered in examining the best interests stand-

ard are identified. In six states, legal precedents

serve as a guide to the factors that should be the

focus of attention. In four states, the factors to be

considered are determined by the evaluator.

In a New York case, a judge pointedly criticized the

evaluator whom she had appointed for failing to

consider “the current state of New York law” in for-

mulating her recommendations.

3. Provision by evaluators of insufficient inform-

ation to those being evaluated

Model Standard 4.1 of the AFCC Model Standards of

Practice for Child Custody Evaluation addresses “writt-

en information to litigants,” and urges evaluators to pro-

vide detailed written information concerning their polic-

ies, procedures, and fees. Many evaluators provide in-

formation orally, leaving litigants with no written docu-

ment to which they can refer. Often, litigants are not

provided with complete information concerning those

to whom the information gathered will be made avail-

able.

4. Failure to create, maintain and furnish appro-

priate records

Model Standard 3.2(b) of the AFCC Model Standards

of Practice for Child Custody Evaluation (2007) states

that records “shall be created in reasonable detail, shall

be legible, shall be stored in a manner that makes ex-

peditious production possible, and shall be made avail-

able in a timely manner to those with the legal authority

to inspect them or possess copies of them.” Some eval-

uators fail to create adequate records, some cannot

read their records, some cannot locate their records,

and some destroy their records.

5, 6. Deficient knowledge of the basics of assess-

ment…

... manifests itself in the selection of inappropriate

methods or instruments and reliance on computer-

generated narrative reports.

ASK THE EXPERTS | 119

Selection of methods and instruments. Model

Standard 5.6 addresses the use of reliable and

valid methods and states, in part, that “evaluators

have a special responsibility to base their selection

of assessment instruments and their choice of data

gathering techniques on the reliability and validity

of those instruments and techniques.”

An example: An evaluator who conceptualizes

children’s drawings as a useful assessment tech-

nique, asks children to produce drawings, but does

not discuss the drawings with the children. She

explains that she has not inquired concerning a

conspicuous circle appearing in a child’s drawing

because “you don't ask children those kinds of

questions. It doesn't matter what the child says.

Certain signs mean certain things, despite what the

child says it means." The evaluator relies upon her

interpretations of children’s drawings to formulate

opinions concerning the children’s emotional ne-

eds.

Reliance on computer-generated reports. Narra-

tive reports that provide computer-generated state-

ments about test-takers, based upon their test res-

ponses, are referred to by those who have deve-

loped them as computer-based test interpretations

(CBTIs). The algorithms (the computer’s decision

rules) that trigger the printing of various descriptive

statements are well protected proprietary informa-

tion. Evaluators who rely upon CBTIs are usually

unable to state what responses, scores, or patterns

of scores prompt the production of the various des-

criptive statements that appear on the CBTIs.

Most, if not all, CBTIs produced by reputable org-

anizations include cautionary messages reminding

users that the computer-generated statements

should be conceptualized as hypotheses to be ex-

plored through the use of other sources of infor-

mation. Evaluators who rely upon CBTIs are re-

vealing their lack of familiarity with the limitations of

actuarial data.

7. Failure to secure verification of information reli-

ed upon

Mental health professionals performing evaluations in

litigated disputes concerning parenting plans can

reasonably be expected to be familiar with the vast

body of published literature that documents quite well

the inability of mental health professionals to function

as human lie detectors. Though our inability to discern

deception has been established, far too many evalua-

tors display baseless confidence in their ability to dis-

tinguish between the forthright and the deceitful.

Standards 11.1 and 11.2 of the AFCC Model Stand-

ards address the importance of corroborating inform-

ation that one intends to rely upon, and using collateral

sources of information as one means by which to

accomplish this. In Standard 11.1(a), reference is

made to the importance of securing information from

those whose input is likely to be salient. Far too often,

evaluators fail to distinguish between endorsements

(often communicated by individuals who are allied with

one parent or the other) and information being provided

by disinterested individuals.

8. Failure to maintain role boundaries

Treatment providers treat; evaluators evaluate. Mental

health professionals who accept court assignments to

evaluate families in which custody of or access to child-

ren is being litigated are accepting tasks that are in-

vestigative in nature. Evaluators must resist the temp-

tation to try and rehabilitate damaged relationships.

In the course of an evaluation, a father reported to the

evaluator that during his parenting time with his child-

ren, they were "nonresponsive [and] not showing up in

good faith and being respectful.” In the course of a de-

position, the evaluator acknowledged having engaged

in an “effort in a therapeutic-type basis to try to get

these kids [to be] courteous, respectful and appre-

ciative [of their time with their father], to behave and be

lovely children [while] they are with their father."

9. Failure to focus on the best interests of the

child

It is not uncommon to encounter, in the reports of eval-

uators, inordinate emphasis on marital issues that have

minimal, if any, bearing on the parenting strengths and

deficiencies of the litigating parties.

10. Expression of personal opinions in the guise

of expert opinions

Not all opinions expressed by experts are expert opin-

ions; some are nothing more than personal opinions

being expressed by individuals with credentials. The

defining characteristics of expert opinions relate to the

procedures that were employed in formulating the opin-

ions and the body of knowledge that forms the found-

ation upon which those procedures were developed.

An evaluator directed to provide opinions relating to

issues of custody and access, gratuitously offers this:

"The financial arrangement to which Mr. and Mrs.

Smith have agreed requires reexamination. In my view

it is unfair to Mrs. Smith." The evaluator has exceeded

to scope of the court’s order, and has opined on a

matter that is noticeably beyond the sphere of her ex-

pertise. It is a personal opinion, not an expert opinion.

ASK THE EXPERTS | 120

March 2014

Top Ten Tips When a Child is Resisting or Rejecting Contact with a Parent

Robin Deutsch, PhD, Boston, Massachusetts, and Matthew Sullivan, PhD, Palo Alto, California

1. It is uncommon that a case presented as “alienation”

or parental alienation syndrome” involves just one dy-

namic that contributes to the child’s response to the

targeted parent. A dichotomous conceptualization that

characterizes the situation as either alienation or est-

rangement is rarely accurate or helpful to develop

effective interventions. The most common case might

be called a “hybrid case” and must be understood from

a family system’s perspective.

2. Always evaluate systemically. Consider child deve-

lopment, history of the parent-child relationships, par-

ental abuse, parenting problems, the effects of highly

conflictual co-parenting, and other contextual factors

(ongoing litigation, financial issues, the impact of ex-

tended family, etc.).

2a. Reunification with the non-custodial parent is not

the primary goal of intervention, but a by-product of

individual and relationship work with family members.

3. Clear and specific court orders for parental access

and intervention are necessary but not sufficient for

effecttive intervention.

3a. Mandate information exchanges and joint decision-

making between parents who share legal custody, re-

gardless of the physical custody timeshare (even if no

contact is occurring with a rejected parent).

4. Professionals involved cannot mirror the conflicted

process of the family system: the likelihood that inter-

vening professionals will become aligned in the polar-

ized dynamics of the family system can only be avoided

by collaborative professional work supported by struc-

tures that allow information sharing and the coord-

ination of the team’s treatment. Ongoing adversarial

legal processes tend to be detrimental to successful

outcomes.

5. Any mental health professional in the community

won’t do. Professionals who work in these cases need

to have specialized experience and skill. See the

AFCC Guidelines for Court Involved Therapy

, profess-

ional practice guidelines for mental health profess-

ionals working with these cases.

6. Custody change requires risk analysis and should

not be a punitive measure or based only on the evi-

dence of a parent engaging in alienation.

7. An ounce of early intervention when there is evi-

dence of a child resisting visitation (or even before the

child begins resisting) is worth a pound of legal and

mental health intervention when these problems be-

come entrenched.

8. Parenting coordination is almost always a necessary

role for case management in these cases, unless the

judicial officer is willing and able to intensively manage

the case.

9. Some coercive court authority is often needed to

support compliance with treatment and access orders.

The favored parent and child are rarely motivated to

comply with orders that support reunification, and a

coercive component to interventions (i.e., the risk of

court sanctions) is often necessary for progress to

occur in these cases.

10. In the most entrenched cases, after reunification

interventions have failed, sometimes the least detri-

mental alternative is a well-prepared intervention that

provides the rejected parent an opportunity to give the

child a “parting message.” This message explains that

the parent will let go of continued efforts to reconnect

for the moment, but allows them the opportunity to

express their love and commitment to the child with an

open door in the future.

ASK THE EXPERTS | 121

April 2014

Ten Tips for Lawyers When the Other Party is Self-Represented

Annette T. Burns, JD, Phoenix, Arizona

Self-represented parties make up the majority of family

court litigants in most jurisdictions. A family case often

involves no attorneys at all, and another segment of

cases have a lawyer representing one side with no

attorney on the other side. The non-represented per-

son is often referred to as the “pro per”, shorthand for

in propria persona, meaning, literally, “in one’s own

person”. (“Pro se” also means “representing one’s

self”.) The self-represented person is as likely to be

male as female; for purposes of this article and for

ease, I will refer to my hypothetical self-representing

person as “Mr. SR.”

A Google search for “self-represented litigants family

court” turns up countless websites created to help Mr.

SR navigate various family court systems. Maricopa

County (Phoenix) Arizona led the way with the creation

of its Self-Service Center in the 1980’s. Long before

internet access was widely available, a room in the

Maricopa County Courthouse provided people like Mr.

SR with packets of forms and instructions for family

court actions. Those forms allowed him to fill out initial

filings, motions and responses on his own, and in-

cluded instructions on how to file things at the court-

house. Jurisdictions across the country expanded re-

sources for self-represented parties, and internet use

later allowed the forms to be delivered via links and

PDFs, and expanded the self-represented litigant’s

access to electronic filing. It’s fortunate that court syst-

ems recognized long ago that self-represented per-

sons in family court were not going away and that syst-

ems must be created to serve them.

Have lawyers’ abilities to work with self-represented liti-

gants kept pace? The American Bar Association’s

Model Rules of Professional Conduct, Rule 4.3 covers,

only in the most general of terms, some ethical obli-

gations for dealing with self-represented parties:

Rule 4.3 Dealing with Unrepresented Person

In dealing on behalf of a client with a person who is

not represented by counsel, a lawyer shall not state

or imply that the lawyer is disinterested. When the

lawyer knows or reasonably should know that the

unrepresented person misunderstands the law-

yer’s role in the matter, the lawyer shall make rea-

sonable efforts to correct the misunderstanding.

The lawyer shall not give legal advice to an unre-

presented person, other than the advice to secure

counsel, if the lawyer knows or reasonably should

know that the interests of such a person are or

have a reasonable possibility of being in conflict

with the interests of the client.

Presumably most ethical attorneys already knew, with-

out the aid of the ABA, that one should not give legal

advice to the opposing party, and one should advise a

self-represented party that seeking independent legal

advice is a smart thing to do. Practical advice can ex-

pand on the limited guidance we get from the ABA. The

attorney who finds himself dealing with Mr. SR can take

certain actions to make the experience more pleasant

for everyone. The following suggestions were compiled

after recent discussions with several attorneys in Phoe-

nix and Yuma, Arizona.

1. Recognize that Mr. SR has very possibly gotten in

over his head, and will react to your attempts to com-

municate or “help” accordingly. The attorney should try

to recognize that Mr. SR’s anger, rage, failure to com-

municate or refusal to speak with the attorney likely

comes from a position of fear. Remembering this will

help the professional deal more effectively with the

problem. The massive amount of online help for Mr.

SR—blogs, websites, forums, listservs, self-help cent-

ers and links—might initially have misled him into think-

ing it’s easy to self-represent. It’s likely that Mr. SR was

quickly overwhelmed by the time and effort that is really

required. Always remember that the forms, rules and

procedures we take for granted look like a foreign lang-

uage to someone not skilled in family court.

2. Provide Mr. SR with articles and court document-

ation showing what great tools mediation and ADR pro-

vide. Anyone who is self-representing needs to hear,

from as many sources as possible, how important sett-

lement discussions are to a family case. If only opp-

osing counsel is promoting mediation, Mr. SR may

ASK THE EXPERTS | 122

naively think that means the attorney feels her case is

weak. Someone who spends substantial time in family

court systems knows that neither litigant is likely to be

happy with the ultimate result of a family court trial, but

Mr. SR doesn’t know this.

3. Having promoted mediation, choose the best media-

tor you can find who is skilled in working with self-

represented persons. If you, as the attorney, believe

your case is strong and Mr. SR’s positions are unrea-

sonable, then he needs to hear this from a skilled, neu-

tral third party. Ask Mr. SR to research and suggest

several mediators, and do your best to try and agree to

someone that he has suggested. Mr. SR must be

permitted to do his own research to alleviate his fears,

often justified, that the mediator and opposing attorney

are friends. Even if you are acquainted with the media-

tor, the waiting room at mediation is not the place to

chat and be friendly. Attention to professional protocols

is never more important than when Mr. SR is involved.

4. Whenever possible, treat Mr. SR like you'd treat a

client. He is not a sub-class of humanity just because

he’s either chosen not to hire an attorney, or can’t

afford to. Respectfulness to Mr. SR will pay off during

the case and after. Mutual respect in the case is good

for your client and your client’s finances, and preserv-

ing any kind of decent relationship between the parties

is crucial if they are parents together. Attorneys have

reported to me that they get later referrals from former

opposing parties because of the respect they showed

to the party during the case. And if Mr. SR isn’t making

it easy to treat him with respect, try harder. It can be

challenging and enjoyable to show a great deal of

respect to someone who is trying his hardest to be rude

and condescending; it builds character to show respect

to those who make it a challenge.

5. Protect your own client by getting out a Request for

Production and basic family case interrogatories early

in the case. Point out to Mr. SR in a letter that your

client is going to answer (and produce) the same

information and that the disclosure requirements work

both ways. Explain to him that your client is going to

fulfill her duties of disclosure, and he is expected to

fulfill his duties as well. Propose in writing to Mr. SR

that you get together to personally exchange the docu-

ments and information on a specific date. If you end up

having an uncooperative opposing party, by sending

these requests out early, you leave yourself time to

request that the Court later compel disclosure.

6. Send Mr. SR a respectful letter of introduction with a

general explanation of how the entire process works.

You can construct a basic outline about exchanging

information, getting each other’s questions answered,

establishing what property and issues are to be dealt

with, and establishing what time parameters are ex-

pected of each party. (Your client will appreciate this

basic outline too.) If your jurisdiction has specific dis-

closure statutes or rules, or forms that must be filled

out in every family case, enclose a copy of the rule(s)

and forms. Mr. SR will either realize that he is expected

by law to provide certain information (as opposed to

you just being nosy), or he will ignore your requests,

and you will have documentation to show the judge

later that you tried to make things easier on him, but he

declined to cooperate.

7. Do everything in writing so there is no issue later that

you possibly gave Mr. SR legal advice or led him as-

tray. If Mr. SR shows himself to be problematic, set

written guidelines for communication with him, such as

how many of his emails you will respond to in a week,

and when and how you agree to exchange information.

Don’t be naïve; there are certainly self-represented

parties who feel they can spend all of their spouse’s

money by insisting on unreasonable and frequent com-

munications with the spouse’s attorney. You, as the

attorney, have the responsibility to be proactive and set

boundaries to prevent that from happening.

8. Jettison the legalese whenever possible. If a dis-

closure statement or settlement letter needs to cite the

law, include a copy of the statute with the letter. Try to

use normal, layman’s language whenever possible.

Referring to a “continuance” means nothing to a non-

attorney; it’s more understandable to say “postpone

this until sometime later.” Asking Mr. SR to “provide

disclosure in accordance with the rules” can be better

stated as, “We need to exchange bank statements and

other information so that you have the each other’s in-

formation.”

9. Your introductory letter can give Mr. SR the links to

your state’s self-help or online forms website. Mr. SR

is likely to realize that you personally didn’t set up those

sites and therefore he might be wise to review them

and figure out what to do.

10. Get the assistance of the judge through a man-

agement or settlement conference. Ask for straight-

forward instructions about the exchange of information

as early as possible in the case. Family court judges

are used to having self-represented litigants in their

court and will appreciate that this self-represented case

includes an attorney on the other side (you) who is

conscientious and respectful. Use your next self-repre-

sented case as a chance to enhance Mr. SR’s opinion

of attorneys and the court system while also honing

your skills in dealing with people in difficult situations.

ASK THE EXPERTS | 123

August 2014

Ten Tips for Writing High Quality and Helpful Custody Evaluation Reports

Robert L. Kaufman, PhD, ABPP, Oakland, California, and Daniel B. Pickar, PhD, ABPP, Santa Rosa, California

The preparation of a child custody evaluation (CCE) re-

port is the culmination of a lengthy, often intense,

stressful, and intrusive process for parents and child-

ren. Unless there is a trial in which the evaluator test-

ifies, the CCE report may be the only means by which

the parents, judge, and attorneys have to understand

the evaluator’s thinking. Despite the importance of

CCE reports, little has been written about how to craft

a high quality report that responds to the needs of this

multi-client system. It is estimated that between 80-

90% of cases in which a CCE has been conducted

settle either outside of court or without a trial. Thus, in

the day-to-day world of family law, custody reports

most frequently serve a settlement function. Our work

focuses on integrating forensic and clinical approaches

to guide report writing that supports families resolving

disputes and moving forward in the interests of their

children.

1. Be helpful to the court by offering additive or

incremental input

Custody evaluators should not only understand the

foundations of forensic evaluations and how they differ

from purely clinical assessments, but also demonstrate

that understanding in their reports. Apart from offering

a recommended timeshare, be sure the report defines

and responds to the psycho-legal issues of the specific

case. Reports that are helpful to the court are those

that synthesize current empirically based research in

the field with the fact pattern and evidence of the case

and well-informed clinical understanding of individuals

and family dynamics.

2. Readability of the report

CCE reports should be written at a reading level that

the average reader can understand. Jargon should be

avoided and multiple subheadings should be utilized to

improve organization and readability.

3. Presentation of psychological test results

Evaluators should not rely heavily on computer-gen-

erated test report interpretive statements, which,

among other things, often emphasize pathology. Clinic-

al judgment and skill are necessary when deciding

what to include and not include from such computer-

based reports. Evaluators who utilize psychological

tests should be trained in independent interpretation of

scores. Attempts should be made to frame interpretive

statements of test findings in a useful and beneficial

manner to maintain the humanity and integrity of the

parent being described. In addition to highlighting prob-

lematic aspects of psychological functioning which

could negatively impact parenting, reports should also

describe the strengths in a parent’s psychological

make-up and functioning which positively impact par-

enting.

4. Denote parental strengths as well as weakness-

Reports should not only attempt to specify areas of par-

ental weakness needing improvement, but also clearly

highlight parental strengths for both parents. When

describing parental weaknesses, evaluators should

use appropriate clinical judgment (i.e., forensic em-

pathy) and carefully attend to the manner in which such

weaknesses are described, seeking to present such

concerns in a non-judgmental manner. Sensitive feed-

back should be written in such a way to enhance a

parents’ ability to receive the information in a non-

defensive manner.

5. Avoiding bias in reports

Evaluators should carefully review their reports prior to

final submission to self-screen for various kinds of bias

(i.e., confirmatory, countertransference bias). Such

biases may be evident when parents are presented in

a polarized fashion (one parent is “all good” while the

other is “all bad”). However, other forms of bias are

more subtle. Evaluators should seek consultation, if

necessary, to control for biases.

ASK THE EXPERTS | 124

6. Maintain a “settlement” mindset

Report writing should be approached with a mindset

and awareness that a CCE report most often serves as

a “settlement tool” rather than a “litigation tool.” Though

the custody report is an advisory report to the court and

must meet the standards of forensic evaluations, it is

most helpful when it includes information and recom-

mendations that can be pragmatically applied by the

family.

7. Presentation of recommendations for parents

Recognize that most parents want to do what is best

for their children, even if it means taking steps to im-

prove their parenting skills. Provide report recom-

mendations for enhancement of parenting or co-par-

enting skills in a manner that increases hope. This can

be accomplished by generating specific strategies and

pathways for improvement, and noting the advantages

not only to the child, but also to the parent, of improving

ineffective parenting and co-parenting approaches.

8. Incorporate the “voice of the child” into reports

CCE reports should present information regarding

children’s stated or inferred custody preferences. If

child custody plan recommendations drastically differ

from a child’s stated preferences (especially for a teen-

ager), clearly articulated reasoning should be contain-

ed in a report noting that a child’s input and preferences

were carefully considered, but the evaluator deemed

their stated wishes were not in their best interests.

Where appropriate, include children’s actual words in a

report. Clinical judgment is crucial, however, in making

decisions regarding what to include and not include

about a child’s concerns about a parent. Evaluators

must be attentive to how such child-generated inform-

ation is described in the report, due to its potential to

impact the child’s future relationship with each parent.

9. Demonstrate careful, fair-minded weighing of

the data

Evaluators should pay particular attention to how their

analysis of the case is presented. It is important to dis-

cuss various hypotheses and parenting plans that were

under consideration. Not only should evaluators dis-

cuss limitations of their assessments, but they should

also reveal data that did not support their conclusions

and the present reasoning for rejecting some hypo-

theses, but adopting others. Among other things, this

demonstrates fair-mindedness.

10. Presentation of recommendations regarding

post-evaluation services by divorce professionals

CCE reports need to be useful not only to the courts

and to parents, but also to professionals (i.e., child’s or

parent’s therapist, co-parenting therapist, parent coor-

dinators, guardians ad litem) providing services to the

family as part of a comprehensive parenting plan.

Thus, reports should clearly articulate the purpose of

each recommended intervention, while enumerating

the stepwise goals for the manner in which these vari-

ous services should be provided to the family.

The authors will present a full-day, pre-symposium institute at

the AFCC 11th Symposium on Child Custody Evaluations in San

Antonio, November 6, 2014, entitled, Writing the Child Custody

Evaluation Report: Integrating Forensic and Clinical Perspec-

tives. This column is also based upon a previously published ar-

ticle by the authors entitled, "The Child Custody Evaluation Re-

port: Towards an Integrated Model of Practice, in the Journal of

Child Custody, 10:1, 17-53 (2013).

Robert L. Kaufman, PhD, ABPP, is a clinical and forensic psy-

chologist whose work in family law includes child custody eval-

uation, mediation, co-parenting counseling and consultation to

attorneys. For over 25 years, he has also conducted psycho-

logical and neuropsychological assessments with children,

teens and adults, and has taught and supervised assessment in

several San Francisco Bay Area graduate programs, including

UC Berkeley, the Wright Institute and Alliant University. Dr.

Kaufman serves on the board of the California Chapter of AFCC

and is past-president of the Family and Children’s Law Center

Board of Directors in San Rafael, California.

Daniel B. Pickar, PhD, ABPP, is a board certified child

psychologist who conducts child custody evaluations, media-

tion, consultation to family law attorneys, and psycho-educa-

tional evaluations of children. He previously served as Chief of

Child and Family Psychiatry at Kaiser Permanente Medical

Center in Santa Rosa, California for 12 years. Dr. Pickar has

published articles in the areas of child custody evaluation, child

custody mediation, learning disabilities in children, and serves

on the editorial board of the Journal of Child Custody.

ASK THE EXPERTS | 125

August 2014

Ten Reasons to Reconsider NOT Using the Rorschach in Your Child Custody Evaluations

Robert E. Erard, PhD, Bloomfield, Michigan

The Rorschach Inkblot Test (1921) is one of the most

widely used personality tests in child custody eval-

uations (Ackerman & Ackerman, 1997; Quinnell &

Bow, 2001), but the importance of its contributions is

frequently underestimated. It provides insights about

how people view and make sense of the world, logically

and coherently organize their thoughts and percep-

tions, cope with problems, regulate their impulses and

emotions, understand people’s motives and intentions,

and create conditions for cooperation and conflict in

relationships. But some custody evaluators have hesi-

tated to use the Rorschach due to concerns about

criticisms of the Rorschach Comprehensive System

(Exner, 2003) in some of the scientific and professional

literature (e.g., Erikson, Lilienfeld, & Vitacco, 2007; but

see Erard, 2005; 2007) or worries about how to explain

their findings in court.

The Rorschach Performance Assessment System (R-

PAS®) (Meyer, Viglione, Mihura, Erard, & Erdberg,

2011), a new system for administering, scoring and

interpreting the Rorschach, was designed to address

these concerns. It uses the best validated variables

(Mihura, Meyer, Dumitrascu, & Bombel, 2013) with

documented clinical utility (Meyer, Hsiao, Viglione,

Mihura, & Abraham, 2013) and organizes them accord-

ing to their degree of empirical support and clinical

meaningfulness. It presents results using percentiles

and standard scores in an easy-to-read visual display,

so that they can be understood by the intelligent

layperson, and bases interpretations on cohesive,

internationally-collected, non-pathologizing norms. It

employs contemporary psychometric methods to gene-

rate more reliable and valid composite variables and to

permit interpretation of scores in cases where people

provide limited or highly complex protocols. Accord-

ingly, it puts the Rorschach on a strong psychometric

foundation and also satisfies stringent admissibility

standards in family court (Erard, 2012; Erard, Meyer, &

Viglione, 2014; Erard & Viglione, in press).

Still, you might just wonder, “Why bother learning

something new? What difference does it really make if

I don’t use the Rorschach in my custody evaluations?”

Here are 10 points to consider:

1. Clinical interviews, parent questionnaires, rat-

ing scales, and “objective” personality tests are

important components of child custody evalua-

tions, but they are all variations on a single meth-

odology—self-report testing, and all of them share

its limitations.

If you rely primarily on self-report methods, you are

depending too much on:

(a) The limits of introspection: Clinical and social

psychology research documents the limitations

of deliberate introspection, including confounds

from self-deception, illusory mental health, attri-

bution biases, cognitive heuristics, priming, and

neurological or character problems associated

with lack of insight.

(b) Limited retrospective recall: People’s memories

for past behavior and problems tend to correlate

poorly with prior contemporaneous records and

are subject to primacy and recency biases,

fundamental attribution errors, and distortion by

current moods and affect states.

sent themselves is highly dependent on inter-

personal context and what they wish to achieve

with their presentations. It has been well docu-

mented that custody litigants typically put their

best foot forward and minimize their faults and

limitations in interviews and self-report testing.

(d) Monomethod co-variance: When people say

essentially the same things about themselves in

an interview, on a parent questionnaire, in a

psychosocial history, and on commonly used

personality inventories like the MMPI-2 and PAI,

findings of high agreement “across methods”

are often spurious. Because all these methods

reflect how people verbally present themselves

ASK THE EXPERTS | 126

and all are subject to similar distortions, agree-

ment among them is often more a reflection of

the reliability of similar measures of similar con-

structs than validity in identifying extra-test cor-

relates. In other words, the accumulation of

many self-report findings is often a source of

redundancy rather than enlightenment (like re-

ading variations of the same Associated Press

newsfeed in multiple newspapers). One’s choi-

ce of methods for gathering data has a huge in-

fluence on what inferences are possible to de-

rive about someone’s motives, traits, and be-

haviors.

2. Performance-based assessment with the Rors-

chach shows you personality in action

How does the person go about solving the task? How

does she relate to the examiner? How does she deal

with frustration, embarrassment, or challenging de-

mands? What qualities of the inkblots does she focus

on? How does she resolve contradictory ideas? What

themes does she keep coming back to?

3. Using the Rorschach, you can compare what

people actually show you to what they say about

themselves

The Rorschach is a brief, portable, standardized, and

normatively referenced behavioral experiment. The

person is solving a complex perceptual and verbal pro-

blem in front of you, showing you how he copes in a

novel situation rather telling you about himself.

A parent who claims to be a self-reliant, “take-charge”

kind of person, but who scores at the 95th percentile

on Oral-Dependent Language (a well-validated, Rors-

chach measure of implicit dependency) is showing you

something he may not be aware of about himself.

A parent who insists that she tries to avoid conflict and

searches for win-win solutions, but who is passive-

aggressive about following test instructions (Pr and Pu)

and produces a Rorschach protocol with validated

scores that show representations lacking cooperative

interactions (COP) and showing destructive or coercive

relationships (MAP), defensive superiority (PER), agg-

ressive preoccupations (AGC and AGM), and opp-

ositional characteristics (SR), is probably not the team

player she presents herself to be.

4. The Rorschach helps you to see how motives,

traits, and patterns of coping emerge in particular

contexts

For instance, you can observe and quantify variations

in the quality of perceiving and thinking under different

conditions, including the conventional but changing

features of the inkblot stimuli across cards, the per-

son’s overt emotional behavior, the thematic content of

his attributions, or his behavior towards the examiner.

5. Unlike self-report, during Rorschach testing be-

havior is more spontaneous, unscripted, and un-

filtered

The person likely lacks any detailed schema for how

to behave when performing the task and has little

guidance for how to look good on the test.

Self-report findings are better at predicting deliberate

performance in front of an audience, especially ver-

bal performance. Rorschach findings are better at

predicting how someone will behave automatically in

unscripted situations over time and under conditions

of stress or strong emotional demands (e.g., in family

interactions behind closed doors; Finn, 1997).

6. Multi-method assessment including self-report

testing and the Rorschach takes into account that

both explicit and implicit dispositions shape be-

havior, particularly the sort of interpersonal be-

havior that most concerns us in custody cases.

If you went to a doctor complaining of back pain and

the doctor only asked you when, where, and how much

it hurts, but performed no direct examination or testing,

or the doctor ignored what you had to say and only

observed how you moved, how much you could lift, and

how you looked on X-rays, you might start looking for

a second opinion. Understanding your pain would re-

quire not only listening to you but also observing and

measuring things you cannot so easily describe (ada-

pted from Hopwood & Bornstein, 2014).

7. Multi-method assessment that includes self-

report and Rorschach-assessed characteristics

evaluates both internal, verbalized experience

(guiding deliberate action) and unscripted, spon-

taneous behavior.

Contemporary personality theory is moving away from

describing fixed, all-purpose traits and toward an

understanding of how behavior unfolds depending on

the interaction of one’s internal attributes and situa-

tional demands in the environment. These are often

expressed in “if-then” formulations (Mischel & Shoda

1995), such as:

—If she finds herself feeling stuck in sad or gloomy

situations, then she quickly tries to turn them into

something exciting and uplifting.

—If he engages in aggressive interactions, then he

tends to misunderstand other people’s motives.

ASK THE EXPERTS | 127

—If she gets sidetracked by strong emotional de-

mands, then she tends to shut down in an effort to

recover quickly.

8. Multi-method assessment using both self-

report testing and the Rorschach allows you to

compare findings across contrasting approaches

to gathering data, thus providing true incremental

validity and offering a check against self-

presentation biases.

Self-report and performance-based personality tests

tend to show low correlations with each other, but

roughly equivalent correlations with relevant extra-test

behavior (Mihura et al., 2013), so that having the re-

sults of valid scorers from both provides incremental

validity and increases interpretive accuracy and confid-

ence.

Because it is difficult to guess what constitutes a good

Rorschach response, people who present with illusory

mental health on self-report testing often show more

serious difficulties on the Rorschach (Ganellen, 2008;

Hartmann & Hartmann, 2014).

9. The Rorschach Performance Assessment

System® (R-PAS) uses international, cross-

cultural, non-patient reference data and inter-

nationally applicable Form Quality tables that

work well for people of diverse ethnic, linguistic,

and national backgrounds.

R-PAS adult norms are modeled from 640 non-clinical

volunteers living in 13 countries and show very high

cross-national convergence.

R-PAS Form Quality tables (used to assess quality of

reality testing and the likelihood of adaptive, conven-

tional behavior) rest on a strong international, empirical

foundation. This foundation incorporates over 50,000

accuracy ratings of individual Rorschach images from

eleven countries, as well as information on the fre-

quency with which these objects are spontaneously re-

ported, derived from volunteers in six countries.

10. The Rorschach Performance Assessment

System is a clinically rich, evidence-based, logic-

ally transparent, and user-friendly system that

enriches evaluations and provides incremental

validity in applied forensic practice.

Robert E. Erard, PhD will present a full-day, pre-symposium

institute at the AFCC 11th Symposium on Child Custody Evalua-

tions in San Antonio, November 6, 2014, The Unintended Con-

sequences of Not Using the Rorschach in Child Custody Eval-

uations.

Dr. Erard is a past president of the Society for Personality Ass-

essment and of the Michigan Inter-Professional Association on

Marriage, Divorce, and the Family and is one of the developers

of the Rorschach Performance Assessment System® (R-PAS).

REFERENCES

Ackerman, M. J., & Ackerman, M. C. (1996). Child custody

evaluations practices: Survey of psychologists. Family

Law Quarterly, 30(3), 565-586.

Erard, R. E. (2005). What the Rorschach can contribute to

child custody and parenting time evaluations. Journal of

Child Custody, 2, 119-142.

Erard, R. E. (2007). Picking cherries with blinders on: A

comment on Erickson et al. (2007) regarding the use of

tests in family court. Family Court Review, 45(2), 175-184.

Erard, R. E. (2012). The Rorschach Performance Assessment

System in personal injury cases. Psychological Injury and

Law, 5(2), 122-134.

Erard, R. E., Meyer, G. J., & Viglione, D. J. (2014). Setting the

record straight: Comment on Gurley, Piechowski,

Sheehan, & Gray (2014) on the admissibility of the

Rorschach Performance Assessment System (R-PAS) in

court. Psychological Injury and Law. doi:10.1007/s12207-

014-9195-x

Erard, R. E., & Viglione, D. J. (in press). The Rorschach

Performance Assessment System (R-PAS) in child

custody evaluations. Journal of Child Custody.

Erickson, S. K., Lilienfeld, S. O., & Vitacco, M. J. (2007). A

critical examination of suitability and limitation of

psychological tests in family court. Family Court Review,

45, 185-192.

Exner, J. E. (2003). The Rorschach: A Comprehensive

System, Vol. I: Basic foundations (4th ed.). Hoboken, NJ:

Wiley.

Finn, S. E. (1997). Assessment feedback integrating MMPI-2

and Rorschach findings. Journal of Personality

Assessment, 67(3), 543-557.

Ganellen, R. J. (2008). Rorschach assessment of malingering

and defensive response sets. In C. B. Gacono & F. B.

Evans (Eds., with N. Kaser-Boyd & L. A. Gacono), The

handbook of forensic Rorschach assessment (pp. 89-119).

Mahwah, NJ: Lawrence Erlbaum Associates.

Hartmann, E. & Hartmann, T. (2014). The impact of exposure

to Internet-based information about the Rorschach and the

MMPI–2 on psychiatric outpatients’ ability to simulate

mentally healthy test performance. Journal of Personality

Assessment, 96(4), 432-444.

Hopwood, C. J., & Bornstein, R. F. (Eds.). (2014). Multimethod

clinical assessment. New York: Guilford Press.

ASK THE EXPERTS | 128

Meyer, G. J., Hsiao, W.-C., Viglione, D. J., Mihura, J. L., &

Abraham, L. M. (2013). Rorschach scores in applied

clinical practice: A survey of perceived validity by

experienced clinicians. Journal of Personality Assessment,

95, 351-365.

Meyer, G. J., Viglione, D. J., Mihura, J. L., Erard, R. E., &

Erdberg, P. (2011). The Rorschach Performance

Assessment System: Administration, Coding,

Interpretation, and Technical Manual. Toledo, OH:

Rorschach Performance Assessment System, LLC.

Mihura, J. L., Meyer, G. J., Dumitrascu, N., & Bombel, G.

(2013). A systematic review and meta-analysis of the

Rorschach Comprehensive System validity literature.

Psychological Bulletin, 139(3), 548-605.

Mischel, W., & Shoda, Y. (1995). A cognitive-affective system

theory of personality: Reconceptualizing situations,

dispositions, dynamics, and invariance in personality

structure. Psychological Review, 102, 248-268.

Quinnell, F. A., & Bow, J. N. (2001). Psychological tests used

in child custody evaluations. Behavioral Sciences and the

Law, 19, 491-501.

Rorschach, H. (1921). Psychodiaknostik. [Psychodiagnostics].

Bern, Switzerland: Bircher.

ASK THE EXPERTS | 129

September 2014

Ten Considerations for Using Gatekeeping to Assess and Describe Family Dynamics

Leslie Drozd, PhD, Newport Beach, California, Nancy Olesen, PhD, San Rafael, California, and Michael Saini, PhD, Toronto, Ontario,

Canada

1. Although originally focused on maternal behaviors

that either facilitate or restrict the involvement of fath-

ers with the children, recent attention has shifted the

theory of gatekeeping to be more gender neutral as a

framework for assessing how parents’ (both mothers

and fathers) attitudes and actions affect the involve-

ment and quality of the relationship between the other

parent and child.

2. Gatekeeping should be assessed on a continuum

that varies in degrees from facilitative to restrictive on

the issue of supporting the other parent-child relation-

ship (Austin, 2011; Austin, 2005a, 2005b; Pruett,

Arthur, & Ebling, 2007).

3. Parental gatekeeping can be positive or negative.

“Facilitative gatekeepers” actively work to support and

enrich the child’s relationship with the other parent.

“Protective gatekeepers” restrict or manage the child’s

contact with the other parent in order to protect the

child from known risks of harm by the restricted parent.

In contrast, “restrictive gatekeepers” use a set of be-

haviors that results in their child resisting or refusing

time with the other parent without realistic reasons

(Saini, Johnston, Fidler, & Bala, 2012).

4. Gatekeeping is not synonymous with alienation.

Only unjustified restrictive gatekeeping behavior is

similar to alienating behavior. Gatekeeping does not

look at whether the child is resisting or refusing contact

with the “out” parent, but only at the parental behavior.

5. Gatekeeping is important but not the only factor to

consider. Other considerations may include parental

attunement, parent competency, parent-child attach-

ment, parent-child conflict, and age and development

of the child, to name a few.

6. The analysis of gatekeeping should focus on the

impact of gatekeeping behaviors and attitudes on

child’s outcomes, including the child’s overall safety

and wellbeing and the quality of the child’s relation-

ships with both parents.

7. Adaptive gatekeeping behaviors include responses

to the co-parenting that lead to positive outcomes of

safety and wellbeing for the child. Adaptive gatekeep-

ing serves the purpose of doing what is best for the

child by either promoting the child’s relationship with

the other parent in safe situations or protecting the

child if she or he needs to be protected because of risk

of harm by the other parent.

8. Maladaptive gatekeeping behaviors include res-

ponses to the co-parenting that lead to poor outcomes

for the child. Maladaptive gatekeeping occurs when a

parent, out of his or her own needs—for example, to

get revenge on the other parent, or to maintain an en-

meshed relationship—restricts a child’s relationship

with the other parent and in so doing, harms the child’s

relationship with that parent and ultimately harms the

child.

9. A parent’s gatekeeping can also be maladaptive if

the parent is non-protective, disengaged, or too lax,

failing to protect the child from harm.

10. Rather than a set of hardline rules that govern

behaviors, gatekeeping analysis requires working hyp-

otheses to consider the various factors that may contri-

bute to both adaptive and maladaptive gatekeeping

responses.

The authors will present a full-day, pre-symposium institute at

the AFCC 11th Symposium on Child Custody Evaluations in San

Antonio, November 6, 2014, entitled, Using Gatekeeping as a

Framework to Assess and Describe Family Dynamics within the

Context of Parenting Plan Contexts.

Leslie Drozd, PhD, is an editor (with Kathryn Kuehnle, PhD) of

Parenting Plan Evaluations: Applied Research for Family Court

(2012) and a forthcoming update of the research (with Michael

Saini, PhD). She was the founding editor of the international

Journal of Child Custody: Research, Issues, and Practice (2004-

2013). She been a child custody evaluator for over 25 years,

teaches professionals how to do custody evaluations, reviews

other experts work, and serves as a consultant to attorneys. Her

specific areas of expertise include intimate partner violence,

ASK THE EXPERTS | 130

alienation, gatekeeping, and substance abuse. She works clinic-

ally with families in the various stages of divorce including co-

parenting therapy, reunification therapy, and parent coordi-

nation. She is a co-author (with Drs. Olesen and Saini) of a 2013

book, Parenting Plan and Child Custody Evaluations: Using

Decision Trees to Increase Evaluator Competence and Avoid

Preventable Errors.

Nancy W. Olesen, PhD, graduated in psychology from the

University of Wisconsin, Madison and earned a PhD in clinical

psychology from the University of North Carolina, Chapel Hill.

She has conducted over 150 child custody and dependency

evaluations for the courts in California and has provided expert

testimony in child custody cases throughout California and other

states in the US. Dr. Olesen has taught many courses in best

practices in child custody evaluation for professionals in Califor-

nia, including the mandatory training required for court appoint-

ed evaluators. She is a co-author (with Drs. Drozd and Saini) of

a 2013 book, Parenting Plan and Child Custody Evaluations:

Using Decision Trees to Increase Evaluator Competence and

Avoid Preventable Errors.

Michael Saini, PhD, is an associate professor and holds the

Endowed Chair of Law and Social Work at the Factor-Inwentash

Faculty of Social Work, University of Toronto. He is the co-

director of the combined JD and MSW program with the Faculty

of Law at the University of Toronto and the course director of the

40-hour Foundations to Custody Evaluations with the faculty’s

Continuing Education Program. For the past 15 years, he has

been conducting custody evaluations and assisting children's

counsel for the Office of the Children’s Lawyer, Ministry of the

Attorney General in Ontario. He is a co-author (with Drs. Drozd

and Olesen) of a 2013 book, Parenting Plan and Child Custody

Evaluations: Using Decision Trees to Increase Evaluator Com-

petence and Avoid Preventable Errors.

ASK THE EXPERTS | 131

October 2014

Ten Tips for Preparing for and Trying Relocation Cases: The Legal Perspective

Honorable Mark A. Juhas, Judge of the Superior Court of California, Los Angeles County, California, and Michael J. Kretzmer, CFLS,

Manhattan Beach, California

Relocation cases are frequently difficult and heart-

wrenching. No bench officer looks forward to a reloca-

tion case. At the end of the trial, inevitably one party

feels that he or she is losing their child or children. For

each parent, the fear of that loss can be staggering and

incapacitating. Too often relocation cases focus on the

needs of the parents instead of focusing on the import-

ant needs and expressed desires of the child.

Determining how to best protect and promote the “best

interests” of the child while mitigating the potential

diminishment or loss of a relationship with a parent are

among the most difficult tasks faced by bench officers

and counsel in all of family law. These intensely com-

peting interests make it all the more important for the

parties, counsel and the court to keep in mind that the

primary focus of a relocation case must be on the best

interests of the child and that the interests of each

parent are secondary.

INITIAL PREPARATION

1. Establish a narrative

Tell a compelling story. Achieving a successful result

for a client with regard to almost any legal dispute

requires that counsel tell a compelling story. In order to

prevail in a relocation case, counsel must convince the

judicial officer that a change from a familiar environ-

ment is in the child’s best interest. Often, but not

always, relocation involves a change from a comfort-

able, supportive and nurturing environment, in which

both parents, extended family members, friends, social

ties, schools, extra-curricular activities, and the child’s

geographical sense of place have been important parts

of the child’s life, to one that is new and uncertain.

Sometimes, the move is necessary in order to provide

the child with a comfortable, supportive and nurturing

environment that is lacking in the child’s present cir-

cumstances.

Knowing (1) what your client wants; (2) why your client

wants it and; (3) what facts support what your client

wants is critical to developing and presenting your cli-

ent’s story to the court. Counsel must ask themselves

whether what their client wants is really in the best

interests of the child, or only in the best interests of the

parent counsel represents. This is most certainly the

question the court will be asking of each parent.

2. Know the players, know the audience

First and foremost, know your client. What is your

client’s motivation for seeking to relocate? How does

your client present himself or herself—to the court, to a

custody evaluator, to opposing counsel in a depo-

sition? Is your client able to handle the often extra-

ordinary burden of putting on and proving up a reloca-

tion request? How will your client handle the demands

of a child custody evaluation, as well as the emotional

and financial costs that a child custody evaluation in-

evitably brings? Has your client fully considered what

the child’s experience may be in the process? Assum-

ing the relocation request is granted, is he or she willing

and able to take on the additional parenting respon-

sibilities that result from relocating? This includes en-

suring that the child’s relationship with the left-behind

parent is promoted, maintained and fostered. Can your

client tell a compelling story? Can your client clearly

articulate what he or she wants (i.e., the relocation),

why he or she wants it (i.e., why it is necessary or in

the best interests of the child), and what facts support

the necessity of the relocation? If your client cannot tell

a compelling story, it will quickly become apparent

when he or she sits down with the evaluator or takes

the witness stand.

Knowing the other players in the story is mandatory

and a critical factor. You must know the other party and

opposing counsel. What motivates the other parent’s

opposition to the move? Anticipating and knowing the

other party’s defenses is fundamental to developing

ASK THE EXPERTS | 132

the narrative. What is opposing counsel like? Does

opposing counsel have a track record in relocation

cases? If so, who in the mental health field has oppos-

ing counsel used or relied on in prior cases? It would

be difficult to overstate the importance of gathering this

information early in the process.

You must know your bench officer. Bench officers who

yearn to try relocation cases are, putting it mildly, very

rare. Apprehension and anxiety are the first cousins of

every relocation case. Deciding a relocation case bas-

ed on the law and the facts is the foremost respon-

sibility of a judge. However, the judge frequently finds

that he or she must manage the personalities of the

parties, anticipate how the decision the court makes

will be implemented going forward, and what effect that

decision will have on the child (a child who the court,

most likely, will never meet or even see in the course

of the litigation). Knowing your judge’s tendencies, lik-

es, dislikes and prior experience with custody and re-

location cases can be invaluable.

The “audience” also includes the child custody eval-

uator, assuming the court requires an evaluation.

Knowing the custody evaluator’s background and track

record is important to the preparation of your case and

your client. Has the evaluator appeared before your

judge previously? Has the evaluator appeared in a re-

location case before your bench officer, or other bench

officers in your courthouse or county? Obtaining copies

of any prior evaluations performed by the evaluator,

whether in relocation cases or other custody matters,

can be especially helpful.

3. Gather evidence—less is often more

Determine clearly and precisely what you need to

prove or disprove in order to make your case, then

gather evidence that will accomplish that. Remem-

ber—what do I want, why do I want it, and what inform-

ation supports what I want? Presenting a compre-

hensive plan is part of telling a compelling story. You

must not only tell the court why the relocation is import-

ant, but also everything your client is prepared to do to

promote, preserve and enhance the relationship bet-

ween the child and the left-behind parent.

An important part of the evidence you will gather is

what the moving or remaining parent proposes by way

of a parenting plan, support, and communication with

the left-behind parent, as well as financial accommo-

dation for travel requirements and the like. It is import-

ant that you critically consider each piece of evidence

as you gather it. Does it withstand scrutiny? How does

it relate to other evidence you are gathering? Is it con-

tradicted or negated by other evidence? Is it necessary

to establish an important point? Consider carefully

what the evidence will prove or disprove. Avoid the

“throw it against the wall and see what sticks” approach

to presenting evidence. Demonstrate your appreciation

of the judge’s intelligence and time by presenting re-

levant evidence that supports your narrative. Remem-

ber that more is not necessarily better. Distilling a mat-

ter or a point to its fundamental essence makes for an

elegant, understandable and, most importantly, con-

vincing presentation to the court.

4. Assemble the team

It is critical that consultants and experts are carefully

chosen and their roles clearly defined. A trial is like a

jigsaw puzzle, each piece is critical to the whole, but

each piece is only a part of the whole. Are you asking

your consultants and experts to stray into areas be-

yond their expertise? It is the wise consultant and

expert who know what they do not know. Your experts

may be well-known in the vast community of mental

health and custody professionals and have impeccable

credentials, but it is up to you to make sure that your

expert stays on what he or she knows. On occasion,

consultants and experts will be tempted and fall prey to

opining and advising on matters beyond their expertise

and experience. Nothing dilutes the usefulness of a

consultant or an expert faster than exceeding the

bounds of their expertise and practice. This happens

more often than you might think.

A consultant or a testifying expert who opines and ad-

vises on matters beyond his or her expertise and

experience can quickly lead you and the court astray,

and will most likely make any opinions and testimony

worthless. Should this occur, it will most likely be

disastrous, if not fatal, to achieving your client’s goal.

An expert’s purpose is to assist the court with matters

beyond the court’s expertise and experience. Experts

that lose sight of this role may lose credibility with the

bench officer or even be rejected as, in the eyes of the

court, they become no more than an advocate. Further,

you run the risk of having the judge prevent the test-

imony of a true expert in the area as it is now cum-

ulative, or determined to be an undue and unnecessary

consumption of time.

5. Manage resources

Judges are acutely aware of how emotionally and cost-

ly relocation cases are for the parties involved. The

involvement of a child custody evaluator will add fees

and costs, including: preparation time for the evalua-

tion, vetting and interviewing collaterals, hiring mental

health consultants, conducting additional discovery, in-

creasing the complexity of trial proceedings, and pars-

ing of the evaluation itself. Is your client prepared and

ASK THE EXPERTS | 133

willing to undertake this burden? Does your client

realize that the finality of the proposed move may be in

limbo for several months? Merely proposing a move

may change the family dynamic forever with, for in-

stance, the non-moving parent believing that the other

parent is out to “steal” the child(ren).

In virtually every jurisdiction, family law courts and their

resources have been stretched very thin and, in some

cases, are just plain broken and unable to deliver the

necessary services to litigants. Before launching into

the relocation proceedings, make sure you have dis-

cussed with your client potential alternatives like pri-

vate and court-based mediation and settlement ser-

vices or intervention with a mental health professional.

Be cognizant of the limits of what a court can really do

to resolve a relocation dispute. More importantly, be

cognizant of what the court cannot do to halt family

conflict and to spare the child(ren) from the strain of the

process.

TRIAL

6. Control the narrative

The fundamental job of both an attorney and an

evaluator at trial is to teach and persuade the judge that

their presentation and interpretation of the facts in the

case is the correct one and the one most likely to

promote and insure the child’s best interests. From an

attorney standpoint, constant vigilance is required to

make sure that the necessary “good” evidence is pro-

perly admitted for the appropriate purpose, and the

“bad” facts are either explained away or kept out of the

hearing all together.

It may be critically important to determine who is in your

audience. You may find that your audience changes

during the course of the trial. For instance, you may

begin by addressing the trial court but circumstances

can occur where you end up making your arguments

to the court of appeal. This may be the case even if you

win at the trial court level. Therefore, counsel must ask

themselves throughout the course of the trial, “Am I

making a sufficiently clear and complete record assum-

ing that there may be an appeal of whatever decision

is ultimately made?”

7. Again—know your judge

Every family law judge that has been sitting for any

length of time will have had experience with a move-

away case. No matter how great the parties’ emotional

strength and resolve or how deep the pockets, move-

away cases exact an enormous toll on a family. If the

moving parent is not allowed to move, he or she may

lose the ability to start anew with better emotional and

financial support in a new city. If the move is allowed,

the left-behind parent may miss out on day-to-day

contact with the child. The parent will no longer be able

to attend soccer games, talk to the teacher on a regular

and informal basis, or perform other common parenting

activities. The relocating parent takes on new respon-

sibilities and burdens as well, such as how to actively

promote and ensure the left-behind parent’s meaning-

ful participation in the child’s life.

Knowing your judge also involves understanding your

judicial officer’s level of tech savvy. How comfortable is

he or she with innovations in parenting plans? How up-

to-date is your bench officer with the current literature?

In addition to the pre-trial homework, it cannot be em-

phasized enough that the best way to know your judge

is to watch and listen carefully during the trial.

Do not forget that the case does not simply start with a

trial. Along the way it is quite likely that the trial judge

or another judge has made interim custody and support

orders, received information, and interacted with the

parties. Pay close attention as the case progresses so

that you are able to respond in trial to concerns that

may have been expressed by the court at prior hear-

ings, or at a time when facts and circumstances may

have been different.

Even if you have had the same judge throughout (i.e.,

in pre-trial proceedings), that judge may seem unre-

cognizable when it comes to the actual trial of the same

matter. In attempting to resolve matters prior to trial, a

judge may be sending different signals and may have

a different style and manner of handling things prior to

trial as opposed to once trial has actually commenced.

The judge will now be listening to actual evidence, det-

ermining what evidence will be admitted and what

evidence will be excluded, as well as determining the

weight given to the admitted evidence. Is your judge an

“activist” or is he or she more passive in their app-

roach? Does the judge participate actively in ques-

tioning witnesses? How does your judge handle evid-

entiary issues—is there a tendency to let all the evid-

ence in and then give it the weight that it is due? Or, is

the judge’s approach more controlled and restrictive by

way of strictly limiting what is allowed into evidence?

Will the judge want to hear from the child(ren)?

8. Present evidence

After all is said and done, the court can only rule on

persuasive, competent and admitted evidence. A well-

conceived trial is designed to be a swift, cogent and

organized presentation of known facts. That said, an

evidentiary hearing is a dynamic thing and surprises

can, and do, arise.

ASK THE EXPERTS | 134

It is fundamental that counsel be familiar with the evid-

ence he or she will offer in the case, as well as that

which opposing counsel may offer. Unfortunately, and

far too often, it is apparent that the attorney has not

done the necessary homework and is not sufficiently

familiar with all aspects of the case. Lack of adequate

preparation will make presentation of your case awk-

ward at best and may lead to a nightmare at worst. Too

many cases get bogged down with presentation of

unnecessary, unclear and irrelevant evidence. Coun-

sel needs to determine as soon as possible what must

be proved in order to carry the trial at the time of the

evidentiary hearing. Doing this work early in a case will

help to avoid or limit wasted time and effort later when

resources may be depleted.

Put together a strategy. How is each witness and each

piece of evidence going to support your theory? Put

your evidence together in a way that makes sense and

is easy for the bench officer to use; “loop back” to

evidence, to remind the court why and how it is nec-

essary to the decision-making process. Make it easy

for the bench officer to see it your way. Tell an interest-

ing and believable story. Above all, a judge’s ability to

make an informed, intelligent and rational decision is

wholly dependent upon the judge having all the nec-

essary information.

9. Lights, camera, action!

You are the producer, director, choreographer, cine-

matographer and screenwriter in this production. You

are in control of the cast (at least some of them) and

you are a cast member. Making the process of putting

on a trial appear seamless and effortless is your aim.

Clearly, it is neither seamless nor effortless. However,

in order to make it seem so, you must put a lot of

thought into what gets said by whom and when. You

must also keep in mind, again, your audience. Does

this judge like seeing your consultants/experts in the

courtroom? Is the judge going to be sensitive to a big

production? Think about the visual of your case. How

does it look when you step back and watch the pro-

duction?

Consider the roles and effects of the other persons on

the set. The work of the court does not go on without

the bailiff, the court clerk, the court reporter and others.

There is often a good deal of informal banter between

these people and the judge that may have an effect on

how the court perceives what is occurring in or outside

of trial.

10. Loop back/temperature check

At all times in a trial or evidentiary hearing, it is critical

to make sure that the judge understands you, your

client, and your positions. Whether you are an evalua-

tor, attorney, or litigant, it is important to listen closely

to the comments the judge makes during the course of

the proceedings both on and off the record. Is he or she

confused about some or all of the facts, laws, or pos-

itions? Is he or she certain in some areas and un-

certain in others? Have you made your parenting plan

clear in a way that the judge is able to understand it, as

well as adopt and use it?

It is equally important that you keep a check on the

clarity of matters for your client. Are you communica-

ting to your client and the professionals on your team

how you perceive things to be going in the case? Is the

judge not buying certain parts of your case? Is it time

to have a heart-to-heart with your client and the

opposing side to discuss resolution? Is it time to have

a cup of coffee with the other side and reach an agree-

ment to save your client’s financial and emotional re-

sources?

Take the temperature regularly and monitor the vital

signs. Constantly assess and reassess where you are

in the course of the proceedings. Opportunities for dia-

logue and resolution may present themselves at the

most surprising times. Make sure your eyes and ears

are open to such opportunities.

CONCLUSION

Dr. Maya Angelou put it best when she said, “I have

learned that people will forget what you said, people

will forget what you did, but people will never forget

how you made them feel.” While you are presenting

your case and when you have finished, how you have

made the people in that courtroom feel may well be as

important as all you have said and all that you have

done. The old adage that you don’t get a second

chance to make a first impression is worth keeping in

mind.

The authors will present a full-day, pre-symposium institute with

Philip M. Stahl, PhD, ABPP, at the AFCC 11th Symposium on

Child Custody Evaluations in San Antonio, November 6, 2014,

entitled, The Relocation Case in Court: Legal and Psychological

Issues. Dr. Stahl wrote an Ask the Experts column, Ten Tips for

Dealing with Relocation Cases, from the December 2011 AFCC

eNEWS.

Hon. Mark A. Juhas sits in a family law assignment on the Los

Angeles Superior Court. He is a member of the California Com-

mission on Access to Justice and sits on committees for both

the Los Angeles Superior Court and the California Judicial

Council.

Mike Kretzmer is the Vice-President of the California Chapter of

AFCC. He is a Certified Family Law Specialist and a Fellow of

the American Academy of Matrimonial Lawyers. His practice

focuses on custody and child abuse matters and is located in

Manhattan Beach, California.

ASK THE EXPERTS | 135

November 2014

Ten Tips for Online Mediators: All Mediators are Online Mediators

Clare Fowler, EdD, Eugene, Oregon

Most of us are not online mediators.

And yet, as I say this, I receive a notification of a

new client contact by email, a text from a colleague

saying that a revised agreement is being placed in

Dropbox, and my calendar jingle reminds me of a

meeting in ten minutes.

There seems to be a stigma among some related to

online mediation. When I, like most of us, picture an

online mediator I see someone who is more concerned

with technology than connecting with clients, a pro-

fessional more fascinated by gadgets than by being

present at the mediation table.

Ah, another beep alerting me of a mediation re-

quest from my intake form on my website. I’ll

double-check my online calendar for availability,

and then set up a Skype intake session with the

clients.

Many of us fall into this trap, where we do not self-iden-

tify as online mediators, but we use the same online

tools. The problem is that many of us have not taken

the time to ensure we are capably and safely using

these technologies. This could put us and possibly our

clients at risk.

Let me encourage you to take a moment to look at the

checklist below to make sure you are using thoughtful,

effective, and safe online mediation practices.

1. Should you use social media?

If I want an Italian meal, I will look online to see what

Italian restaurants are around. Then, I will rank them by

the presence and visibility of those choices. A rest-

aurant with little if any online presence appears to be

less trustworthy, less connected, rarely visited, and

probably on its way out. A restaurant with a vibrant

online presence gives the impression that it is proud of

what it provides, that it is respected by the local com-

munity, and that it has been around for a while and will

be around for longer.

The simple fact is that modern clients expect any pro-

fessional practice to have a social media presence.

Your social media presence is a part of your overall

reputation and brand. It will be a good use of a Satur-

day morning to create a professional social media pre-

sence on Facebook, Twitter, LinkedIn, and Google+.

Also, you might consider creating two identities with

two different privacy settings: a personal presence with

a high amount of privacy, and a professional page with

a high amount of publicly available content.

2. Personal information on professional page

What information do we share on a professional social

media site? This answer is changing and the norm is

shifting toward sharing personalizing stories on pro-

fessional sites. This is not to say anyone wants to see

what you ate for dinner or pictures of your cat (cute as

it may be). But your clients do want to see that there is

a real person managing the site and not a robot, pre-

ferably a person who is relatable.

3. What is your brand?

The type of information you share needs to be in-line

with your brand. For instance, Belinda Jokinen, a family

mediator from Washington, does the majority of her

marketing through Facebook. She shares interesting

quotes, shares sunset pictures from her office window,

and advertises promotional discounts on her à la carte

marital dissolution services. This is appealing to famil-

ies searching online for dispute resolution options. Don

Philbin, on the other hand, promotes a different brand

through social media sites such as Twitter and his ADR

Toolbox. He shares interesting academic and business

related articles. What both of these mediators have

mastered is the ability to sell through service. They use

social media to provide a useful service, consistent

with their brand identity, resulting in an informative and

trustworthy online presence.

4. Your mobile-friendly website

Please say that you have a website! If you do not have

a website, stop reading now, go get a website, then

come back and finish this article. Make sure you can

ASK THE EXPERTS | 136

easily edit and grow the content on your website. As a

professional mediator, you need to have your own

professional website that highlights and updates your

unique experience for consumers using all kinds of de-

vices to access your information. The majority of re-

search is now done on devices other than computers,

so take a moment with your phone or tablet and look at

your website. If the images and text are not displaying

correctly, or you are getting frustrated having to pinch

and zoom around pictures and awkward menus, real-

ize that this is the impression and experience you are

also giving your clients.

What does your website need to say? Gary Dorr,

Mediate.com Webshop Director, has prepared an in-

depth tutorial on this topic. Let me highlight a few key

points. Your website is your online storefront. It needs

to set and be consistent with your brand, as well as set

balance of your professional online presence. Addition-

al suggestions: your website needs to include a third-

person description of you and your services, a descript-

tion of your fees and location, and a clear path to how

people can most easily hire you. The majority of clients

spend 30 seconds or less on a website. Don’t force

them to dig for important information. Spoon-feed

them!

5. Do-it-yourself design

Can you create your website yourself? The answer

nowadays is “yes.” Should you? That’s a trickier ques-

tion. There are some complex things to think about.

First, who will design it? Second, who has access to

update it? Third, how can people reach you?

Design: It is likely worth your investment to have a pro-

fessional website company develop a mobile-friendly,

custom, unique looking website, and then hand you the

reins. You can begin by searching Google for media-

tors in your geographic area to get a sense of your

competitors’ websites. To say that potential clients

compare mediator websites and choose the best might

be simplistic, but it is often true.

Updates: You will appreciate it in the long run if you

have a website that you can manage yourself. In other

words, you do not want to pay someone every time you

want to upload a new article or list a new award. As you

make changes, make sure that you are being consis-

tent with the feel of your website and your existing con-

tent. If your website looks outdated or sloppy—what

will clients think of you?

Interactivity: Make sure that people can interact with

you through your website. I was recently trying to hire

a speaker for a conference. After two minutes on her

website, I gave up and booked someone else. I could-

n’t find a way to send her an email; I couldn’t find an

online calendar to check her availability; I couldn’t find

a form where I could send her my specific details to

review. So, I chose to leave her site. Her lack of pre-

paredness on her website indicated to me the type of

speaker she would be. Yes, this was a snap judgment

but her website was all of the information I had to go

on. Your clients will be making the same judgments on

your website.

6. Email

As too many politicians have found out, email does not

go away. When you are emailing with your clients, it

may be best to assume that every email will be shared

with the other party. As a mediator, it may generally be

wise to include all parties and attorneys on every email.

Complete transparency can be your best weapon when

it comes to “email protection.” If you do not want your

email to be transparent, then perhaps don’t send it.

Pick up the phone instead.

If you do need to send a confidential email, clearly state

“CONFIDENTIAL” in the subject line. Include in the text

of the email everyone that is cc’d on that email. If you

need to send a picture or a large document, try to find

a case management system with a secure document-

sharing program such as www.caseloadmanager.com.

Such programs will scan for viruses, make it easier for

all parties to see the original version of the file, and will

increase the email being received.

Clients often tell me that they just don’t have the time

anymore to go through their junk mail. So, if I am send-

ing them an important email, I follow up with a phone

call alerting them to the time and subject of the email

to ensure they can find it.

7. Online case management

I am biased toward Mediate.com’s Caseload Manager

as this program was designed by mediators for media-

tors. Regardless of the case management program you

choose, make sure that it has a few basic abilities:

 Multiple staff log-ins, with separate identities

and access levels

 Create and edit unlimited fields

 Create flexible reports on the fly

 Securely upload and share documents

 Flexible billing

 Timed email reminders for parties and staff

Additionally, take time to research your system’s secur-

ity and reliability. Can you trust that you will be able to

access your case information when you need to? What

ASK THE EXPERTS | 137

is the backup system for the program if, for instance,

your two-year-old accidentally deletes your cases?

Ideally, all of your case data should have multiple back-

ups, such as an hourly, daily, and weekly back-up that

you can restore if necessary. This data should then be

archived and available to you as long as you need it,

should you need to reference a closed case years from

now.

8. Video-conferencing

The ability to meet people online by video as a part of

the mediation process is a major leap forward for the

mediation field. This now nearly ubiquitous technical

ability is allowing people to resolve disputes that pre-

viously did not receive attention and further humanized

online mediation efforts. For a variety of reasons, per-

haps mostly convenience and cost (what else is new),

people are using video-conferencing capabilities more

and more. Mediators are wise to master video confer-

encing as an option for their choreography of com-

munications.

I recommend becoming comfortable with at least two

video conferencing options, such as Skype, WebEx,

GoToMeeting, Zoom, and/or Google Hangouts. If you

are dependent on only one system, somehow that

system is always the one that does not work well for

someone. Find options that are simple for clients to

use, for which your clients do not have to pay anything,

and allow an option where everyone is able to see each

other, and where you can also create documents to-

gether.

Mediation is no longer either face-to-face or online. It is

now both. You will want to integrate these video op-

tions into your practice when it best suits your clients.

For instance, you might have an initial face-to-face

meeting with everyone in the same room to establish

trust and rapport, identify the agenda and easy points

of agreement then, perhaps, have separate follow-up

video meetings online to the extent that it is helpful for

your clients.

Remember, video-conferencing is just one more online

tool for you to use. Some cases will require every meet-

ing to occur by face-to-face communication. Partici-

pants may prefer or need to see each other in person

to trust the other party’s commitment to a resolution.

On the other hand, some participants feel more com-

fortable not being in the same room as another party.

As you become more comfortable with video-con-

ferencing, you may also choose to invest in a good

microphone, as laptop microphones can be difficult in

large group settings.

9. E-commerce

Every mediator has their own preferred method for bill-

ing and receiving payment. In this “age of the internet,”

mediators are also wise to consider whether their own

preferred payment methods are most convenient for

clients. Many mediators now effectively use the Square

app on their phone for accepting credit card payments.

You can also look into setting up a PayPal account on

your iPad or tablet.

When you are making your e-commerce decisions, you

should compare the cost (typically 1-3%) for using the

online payment service, and how you will receive your

money. Many services will transfer money immediate-

ly, but some services might take a lower percentage

and only transfer your money monthly.

10. Intake/booking form

Take the time to find a way for your clients to easily

interact with you online. They appreciate it. They now

expect it. It helps clients feel involved and invested in

their case and it makes it easier for them to hire you.

Allow your clients to view your online calendar and

check it for availability. Mediate.com has this capability,

as does NADN, Google Calendar, and many others.

Look for a program that allows you to indicate publicly

that a slot is open or booked without adding any private

details (your clients really do not need to know every

time you go to the dentist). Also, look for a calendar

that sends reminders, preferably both to you and to

your clients.

You should be able to include a booking form/intake

form on both your website and your directory listings. If

you are able to create your own intake form, only ask

people for enough information to get the ball rolling.

First and last name, email, phone, the matter in dis-

pute, desired meeting date and time, and a space for

any other comments is fairly common. Also, look for a

form that will allow you to include “captchas” or some

type of a method for filtering out robots and spam.

Conclusion—We Are Now All Online Mediators

Love it or hate it, communication technologies are here

to stay and they are constantly evolving and improving.

Establishing your online presence and online profici-

ency is now a part of being a highly effective mediator.

It is a growing and evolving expectation of our clients.

Choose the online options and strategies that you are

comfortable with and that you think will help your clients

settle their dispute. For those options you choose to

integrate into your practice, understand their reliability

and confidentiality concerns. You are already mediat-

ing online. Make sure you are doing it right.

ASK THE EXPERTS | 138

Dr. Clare Fowler is a workplace and family mediator and

managing editor at Mediate.com. She received her Masters of

Dispute Resolution from the Straus Institute for Dispute Resolu-

tion at the Pepperdine University School of Law and her

Doctorate in Organizational Leadership, focused on reducing

workplace conflicts, from Pepperdine University School of Edu-

cation. Clare also coordinated the career development program

for The Straus Institute dispute resolution students. In addition

to her editorial duties at Mediate.com, Clare coordinates online

case management for programs, agencies, and courts. Contact

her at www.ClareFowler.com.

ASK THE EXPERTS | 139

December 2014

Ten Tips for Client Engagement

Bill Eddy, LCSW, JD, CFLS, San Diego, California

Clients today want to be positively engaged with their

professionals and to play an important role, yet many

of them tend towards negative engagement and many

professionals are tempted to respond negatively as

well—especially when they have “high conflict” clients.

These tips can be used to help engage clients in think-

ing about problem-solving rather than reacting, wheth-

er you are a therapist or lawyer with an individual client,

or a mediator with both parents. Judges and custody

evaluators can use these principles to the extent poss-

ible, even when talking about past behavior problems.

By focusing clients on these simple steps for future

problem-solving, some become more engaged and

less defensive.

1. Forget about insight

This is who they are and efforts to make them a better

person with on-the-spot “constructive” feedback often

creates more defensiveness and an unnecessary pow-

er struggle. Just focus on addressing what action steps

to take now about the problems at hand.

2. Focus on the future

Talking about a client’s past behavior triggers defen-

siveness and resistance to change. As much as poss-

ible, it’s better to talk about desired future behavior

rather than criticizing the past behavior.

3. Communicate in ways you want your client to

mirror

Researchers say that we have neurons in our brains

which “mirror” the behavior of others. So rather than

mirroring their frustration, fear or anger, it’s better for

us to act in a way that we want our clients to mirror us—

especially showing them empathy and educating them,

rather than showing anger.

4. Teach clients to ask you questions

Rather than making brilliant decisions for our clients,

we need to engage them in asking us questions as

much as possible, to help them prepare to make pro-

posals and decisions themselves.

5. Teach clients to set the agenda

Whether you are meeting individually, in mediation, in

a group meeting or otherwise, teach clients to think

about and list items for the agenda. The more they are

thinking about what to do, the less they are thinking

about blaming and complaining.

6. Educate clients about their choices and possible

consequences

This approach keeps more responsibility on their

shoulders and gets them thinking. Repeatedly remind

them: “It’s up to you.”

7. Have clients make lots of little decisions

Whether we are providing mediation, counseling, advo-

cacy or judging, we need to give clients practice in

making as many decisions as possible (e.g., who goes

first, changing topics, when to take breaks, etc.)

8. Teach clients to make proposals

Rather than taking the lead, we need to ask clients to

form proposals and test them out on their lawyers,

counselors or others, to prepare positively for negotia-

tions, rather than focusing on negative arguments

about the past. This includes who will do what, when

and where.

9. Teach clients to ask questions about each

other’s proposals

Rather than quickly saying “No” to proposals, teach

clients to ask questions to help them form their next

proposals. This can turn an angry exchange into an

analysis of what’s important to each party.

10. Teach clients to reply to proposals by saying

“Yes,” “No” or “I’ll think about it”

This encourages clients to stay focused on thinking

about proposals and making new proposals, rather

than just reacting to proposals. If a client says “No” to

a proposal, then it’s their turn to make a new one.

ASK THE EXPERTS | 140

Bill Eddy is a lawyer, therapist, mediator and the President of

High Conflict Institute. He developed the High Conflict Person-

ality Theory (HCP Theory) and has become an international

expert on managing disputes involving high conflict personalities

and personality disorders. He provides training on this subject

to lawyers, judges, mediators, managers, human resource pro-

fessionals, businesspersons, healthcare administrators, college

administrators, homeowners’ association managers, ombuds-

persons, law enforcement, therapists and others. He has been

a speaker and trainer in over 25 states, several provinces in

Canada, Australia, France and Sweden. He is also the develop-

er of the New Ways for Families method of managing potentially

high conflict families in and out of family court.

Bill Eddy will present a full-day pre-conference institute on this

topic titled, Client Engagement Skills for High Conflict Families,

at the AFCC 52nd Annual Conference in New Orleans, May 27-

30, 2015. He will also present a workshop with Marsha Kline

Pruett and Lisa Matthews, Two Program Models and Research

on Parenting and Co-parenting Skills. See the conference

program brochure for full session descriptions and schedule.

ASK THE EXPERTS | 141

January 2015

What is the Biggest Challenge Facing Conflict Professionals Today?

Bernie Mayer, PhD, Creighton University, The Werner Institute, Kingsville, Ontario, Canada

While there is no shortage of challenges, those that

conflict professionals most often focus on—marketing,

approaches to mediation, institutional obstacles, train-

ing, certification, public acceptance—seem very se-

condary to what I believe is the most serious obstacle

to our success and growth as a profession: the limits

we (perhaps unintentionally) impose on ourselves by

how we understand conflict and our role in it.

What makes conflict work vital, exciting, and durable is

our outlook on conflict and conflict intervention. We

bring a unique set of conceptual tools to conflict—tools

that distinguish us from law, psychology, diplomacy,

political science, and labor relations, to name a few

other fields of practice that deal with conflict. While we

draw on all of these fields—and for many of us they are

our professional fields of origin—we differ from them in

how we think about conflict and therefore how we

approach it. But while we operate from a powerful set

of concepts that guide our work, they are often

embedded in our practice rather than something we

consciously or fully embrace (they are our “theories in

action”). As a result we are often vague about just what

these frameworks are, and we don’t spend much effort

trying to challenge, deepen, or intentionally connect

them with what we actually do. This is unfortunate si-

nce they are the source of our strength and identity as

a profession and they point the way to a broader util-

ization of our services.

At the heart of our way of understanding and inter-

vening in conflict is our rejection of the polarized way

in which most conflicts are framed. Disputants present

conflicts as a choice between right and wrong, winning

or losing, compromising or standing on principles. Con-

flict professionals try to help people look beyond these

simplistic framings. Our approach is imbued with the

belief that there is almost always a third way that inte-

grates the most important beliefs, needs, and ideas of

conflicting parties. We have many techniques for doing

this. Perhaps the most prevalent is the principled inter-

est based approach described in Getting to Yes

(Fisher, Ury, Paton, 1991). We also encourage inte-

grative negotiation, a systems approach, affirmation of

shared underlying values, and a focus on mutual con-

cerns. All of these can be seen as approaches to

breaking down the polarized approach that disputants

are prone to take in conflict.

But even as we believe in the essential importance of

breaking through a polarized approach to conflict, we

adopt our own polarities; this interferes with our ability

to make sense of a conflict and our effectiveness as

interveners. Our biggest challenge, therefore, is to un-

derstand these polarities, challenge ourselves to move

past them, develop ever more sophisticated tools for

taking an integrative approach to how we understand

conflict, and thereby build on our greatest strength as

conflict professionals. For example, consider three of

these polarities:

Competition and Cooperation

When divorcing parents are fighting over parenting

plans, we instinctively want to encourage a cooperative

approach to negotiation, problem solving, and parent-

ing, and to discourage competition. We equate cooper-

ation with lower levels of conflict, more effective parent-

ing, and better adjusted children. We associate compe-

tition with high conflict, adversarial approaches to ne-

gotiation, and more traumatized children.

Conflict professionals exhibit similar attitudes with re-

gard to labor relations, environmental disputes, inter-

national conflicts, and political negotiations. For exam-

ple, we think that the way to end the dysfunctional

polarization or our political culture is to be more coop-

erative and less competitive.

But it’s not. Competition is a necessary and healthy

part of our political system—democracy depends on it.

Similarly, the way to help parents through divorce is not

simply to tell them to stop competing and start cooper-

ating. Suppressing competition often means margin-

alizing a parent. The problem in both situations is that

there is in fact a need to do both—to compete and to

cooperate—and in fact you can’t have the one without

the other. To preach to parents that they simply need

to cooperate and all will be well denies a reality that

ASK THE EXPERTS | 142

they are very well aware of—that they are in a

relationship that has competitive components, just as

our national political parties are. The challenge is to

compete effectively and to cooperate effectively, and to

see the two as inextricably intertwined.

Effective parenting, particularly when parents have

different views about how to parent and about edu-

cation, religion, discipline, nutrition, etc., necessitates

that parents find a constructive way to articulate their

different views, advocate for their beliefs, and figure out

how to move forward despite their differences. A gen-

uinely cooperative parenting relationship requires that

parents learn to compete in a cooperative manner and

to cooperate in competing. Our capacity to help

parents do this, and to understand this challenge, is

essential to promote a healthy co-parenting relation-

ship, one in which both parents are genuinely involved

in all aspects of their children’s lives. The alternatives

(which are sometimes the best we can do) are to sup-

press genuine disagreements, create artificial barriers

in parenting decision making, marginalize a parent, or

subject children to dysfunctional conflict.

As anyone who has worked with high conflict parents

knows, this is no simple challenge, and simply recog-

nizing it does not solve it. However, if we fail to appre-

ciate the reality of the competitive element of cooper-

ative parenting, then we are not being realistic, we are

not meeting parents where their experience is, and we

are failing to use our most important conceptual tools

for helping people in conflict.

Logic and Emotions

Most conflict professionals understand that you cannot

simply apply logic to address a conflict. We recognize

that emotions play a major role in how we address con-

flict and that we often have to “work through” our emo-

tions in order to reach a more rational, objective, and

constructive place. However, we sometimes think of

these as separate processes. We seem to believe that

we have to help disputants deal with their emotions just

enough so that they can be put aside, allowing disput-

ants to do the logical and rational work (the “real” work)

necessary to deal with conflict.

But that is a myth. Emotions can take over, but so can

logic. An overly logical approach is no more realistic or

effective than an overly emotional one. Emotions are

essential to clear thinking. Our challenge is not to move

past emotionality, but to integrate it with rational pro-

cesses so that people can make wise decisions. The

neuroscientist Antonio Damasio (2005) found that peo-

ple who had damaged the part of their brain that pro-

cesses emotions could still engage in rational analyses

of the pros and cons of different courses of action, but

they could not make decisions. Emotions are not only

essential to good decision making, they are essential

to the capacity to make decisions at all.

So when we try to help people (or ourselves) work

through their emotions so that they can engage in a

more rational approach to conflict we are onto some-

thing, but we only have it half right. Our more profound

challenge is to help people use their rational tools to

handle their emotions so that their emotions can be

brought to bear on their rational process. We ought not

ask divorcing parents to put aside their sad, angry,

scared, or upset feelings, for example. This cannot be

done in a healthy way. Instead, we need to help them

accept and understand these emotions (using rational

processes) so that these can be integrated into their

thinking about their choices and concerns in an effect-

ive and meaningful way.

For the most part, disputants intuitively understand

this. Conflict professionals come close to getting this

right when they acknowledge feelings, stay with them,

accept them, and do not try to rush people through

them. But too often, we view emotions as something to

deal with and then move beyond so that the real work

can be done. Emotional work is just as much real work

as rational analyses. And these aspects of conflict

processing cannot be separated.

Principle and Compromise

We often get this right as well. We do not ask people

to relinquish their principles so that they can compro-

mise as necessary to deal with a conflict. We are more

likely to ask them to be flexible in how they understand

their principles or to think harder about what principles

are critical to them. If parents say, for example, that

equal parenting time is an essential principle for them

about which they are unwilling to compromise, we are

likely to accept this but to ask them to delve a bit

deeper into why this is so important to them.

But what we may not always recognize is that without

appropriate compromise no principle is meaningful—

and without adherence to principle, compromise has

no purpose. The challenge of integrating principle and

compromise is part of almost every important move we

make in conflict; as with competition and cooperation,

or emotion and logic, our challenge is to take a truly in-

tegrative approach. Principle and compromise are not

simple choices, but essential components of an ethical

and effective approach to conflict.

As conflict professionals, we often fall into these and

other polarities (e.g. outcome and process, neutrality

and advocacy, avoidance and engagement). But we

ASK THE EXPERTS | 143

are also well situated—by our experience and by the

values that undergird our work—to find an integrative

approach to the dualities they represent. So our big-

gest challenge, both in terms of our thinking and our

practice, is directly related to the biggest asset we bring

to conflict, namely, our commitment and experience in

helping disputants move beyond a polarized, dualistic

approach to their conflicts. And as with most important

challenges, the clearer we can articulate the issue,

both the easier and more challenging it becomes to

deal with.

These and other conflict dilemmas are described, illus-

trated and analyzed in The Conflict Paradox: Seven

Dilemmas at the Core of Disputes by Bernard Mayer

(Jossey- Bass/Wiley and the ABA, January, 2015).

Bernie Mayer, PhD, Professor of Dispute Resolution, The Wern-

er Institute, Creighton University, is a leader in the field of conflict

resolution. Bernie has worked in child welfare, mental health,

substance abuse treatment, and psychotherapy. As a founding

partner of CDR Associates, Bernie has provided conflict inter-

vention for families, communities, and governmental agencies

throughout North America and internationally. Bernie’s latest

book, The Conflict Paradox, Seven Dilemmas at the Core of

Disputes, is just out (January 2015). Earlier books include: The

Dynamics of Conflict, Beyond Neutrality, and Staying with Con-

flict. Bernie is the recipient of the 2013 President’s Award and

the 2009 Meyer Elkin Award, both presented by the Association

of Family and Conciliation Courts.

REFERENCES

Damasio, A. Descartes’ Error: Emotion, Reason, and the

Human Brain. New York: Penguin Books, 2005

(originally published in 1995 by G.P. Putnam’s Sons).

Fisher, R., Ury, W. and Patton, B. Getting to Yes: Negotiating

Agreement Without Giving In. Second Edition. New

York: Houghton Mifflin Company, 1991.

ASK THE EXPERTS | 144

February 2015

Ten Tips to Save Money Using Your Parenting Coordinator

Annette Burn, JD, Phoenix, Arizona

A PC is assigned to your case and you’ve paid a sub-

stantial amount of money to get started with that per-

son. Between you and the other parent, you have brou-

ght somewhere between two and ten issues to the PC.

How can you save some money and get the most out

of your parenting coordinator to get those issues re-

solved?

1. Pick your battles

Just as you do with your children, decide if an issue

is really something to fight about. Have a serious

conversation with yourself about whether you want

to spend money and time arguing over an hour of

parenting time here or there. There’s nothing wrong

with first raising an issue with the PC, discussing it a

bit, and then saying, “Never mind, let’s remove that

one from the list.”

2. Determine if your position is logical and rea-

sonable

If your position is that the other parent should do 100%

of the driving for the children 100% of the time, ask

yourself: is that logical? Is it reasonable to think that a

PC and, later, a judge will have one parent do all of the

driving? Is it logical that the judge will give one parent

every Christmas Day with the children and deprive the

other parent of ever having a Christmas Day?

3. Make sure the fight isn’t costing you more than

the issue

Although parenting coordinators don’t usually handle

financial things, some issues creep into money mat-

ters. If the parents are arguing about whether Johnny’s

baseball glove is at Mom’s or Dad’s house and who

failed to get the glove to the practice field, involving the

PC in those discussions will easily cost more than the

glove (or tennis shoes, or school book). Asking the PC

to get involved in issues of clothing left at the other

parent’s house will eat up money even more quickly.

This is a variation of “pick your battles.” Determine

whether it’s cheaper to buy a second school book or

pair of shoes, rather than spend the money on the PC.

4. Use trusted friends to discuss the things above

Don’t pick a friend or family member who will agree with

you on everything. Choose someone whose opinion

you trust and who you would consult with about an

important decision like changing neighborhoods or

jobs. Choose someone who has stayed neutral bet-

ween you and the other parent. Bounce your ideas off

of that person: is this a battle I should continue? Is my

position logical and reasonable? Ask for real, truthful

feedback.

5. Communicate with the other parent about the

issue at hand in brief informative emails, or with

brief questions about the issue

BRIEF is the key component here. If the other parent

asks for something that infuriates you, go ahead and

write your scathing, outraged, three-page response—

but don’t send it to the PC or the other parent. Send it

to yourself, or that trusted friend, or even your mother,

but keep it in your small circle. Sending it only to the

PC is an option, but it’s an option that will probably cost

you money. After writing the full outraged response, sit

down (a few hours or a day later) and edit it down to: “I

don’t agree to give up my parenting time on Fathers’

Day this year,” and stop. Saying more isn’t helpful and

will cost you money.

6. If you can’t stop yourself from writing and sen-

ding the long, drawn-out emails…

…that re-hash what happened last Easter and state

what an inconsiderate bum the other parent is, then

carefully review the bills you receive from the PC. Make

a point of adding up how much those emails cost you.

If you realize that sending those emails cost you as

much as a two-day admission to Disneyland, or enou-

gh to have your car repaired, or enough to pay for a

nice children’s birthday party, it may give you incentive

to change your behavior.

ASK THE EXPERTS | 145

7. Read your parenting plan and all court orders

that might cover the issue

An amazing number of parenting coordination clients

simply haven’t read their court orders. Getting the PC

involved means that you are paying someone to read

your documents to you. If the issue is where the

children will be for Thanksgiving this year, you need to

find and read every court document that might mention

Thanksgiving. These documents could be your parent-

ing plan (sometimes called a joint custody agreement

or joint legal decision-making agreement), or it could

be in an order issued directly by the court. Read every-

thing, thoroughly, before involving the PC.

8. Make sure your parenting coordinator has all

your court orders and parenting plans

If you’ve been back to court several times, there may

be several orders or modifications or a single order that

mentions only one issue, like summer vacations. Org-

anize all your parenting plans and orders and list them

by date for the parenting coordinator to make sure they

have everything. The court does not usually provide

the parenting coordinator with everything, and having

the PC track down multiple orders is an unnecessary

expense.

9. Create a calendar

If the issues between you and the other parent involve

a certain period of time, such as summer vacation, or

the weeks from mid-November through the re-start of

school in January, create a calendar showing who the

children are with each of those days. That’s what your

PC is going to have to do, eventually, and if you start

with one, it simplifies the process and may even end it.

Pull up Google Calendar, or your own calendaring pro-

gram, and fill in your understanding of the schedule for

the weeks in question, including all exchange days and

times, and list all holidays and special days. Then pro-

pose that specific calendar to the other parent and ask,

“Do you agree with this? If you don’t, tell me what parts

you don’t agree with.”

10. If the calendar and exchange of emails does

not resolve the issue without the PC’s help, then

organize everything for the PC

Telling the PC “My position is stated in all the earlier

emails” is an expensive statement, because now the

PC has to go through many emails to find your position.

That is done at your cost. To reduce that cost, briefly

re-state your position in one organized email. If the iss-

ue involves a long period of time, use a calendar to re-

state your position. Refer the PC to the specific dates

of the emails and court orders and the specific sections

of a parenting plan that should be reviewed by the PC

in making this decision. The more specific you are, with

page and paragraph numbers, the less time your PC

will spend looking for information.

Annette Burns has practiced law in Arizona since 1984, spec-

ializing in family law, and focusing on acting as mediator, arbi-

trator, family law master and parenting coordinator in family law

cases. Her background and experience includes over 28 years

of client representation in divorces, property valuations and divi-

sions, and actions involving spousal maintenance, child custody

and parenting time, paternity, and child support. Since1994, she

has been a certified family law specialist in Arizona. Annette is

a Fellow of the American Academy of Matrimonial Lawyers

(AAML), and is a board member and secretary of the AFCC

Board of Directors. This piece was originally published January

14, 2015, as Nine Tips to Save Money Using Your Parenting

Coordinator on her blog www.heyannette.com.

ASK THE EXPERTS | 146

March 2015

Tips for Unbundling Your Family Practice: 2015

Forrest S. Mosten, Beverly Hills, California

In the April 2010 edition of the AFCC eNEWS, I offered

“Ten Tips to Unbundle Your Practice,” which are as

applicable today as they were five years ago. Two

years later, I expanded that list of practice tips for a

piece in the Fall 2012 issue of the ABA Family Law

Advocate, “25 Tips for Starting an Unbundled Peace-

making Practice.” Since these were published, the pop-

ularity of unbundling has increased, but there will al-

ways be lawyers who choose not to. Here, you will find

those previous tips, a brief update on unbundling deve-

lopment, perceptions of some unbundling critics, and

five new tips for 2015.

AFCC eNEWS, April 2010

Ask the Experts, Ten Tips to Unbundle Your Prac-

tice

1. Let clients know that you unbundle

Tell clients in the first meeting, or even on your website,

that you are available and enjoy helping them on a

limited scope basis: you will meet for short sessions

(30 minutes), by telephone or Skype rather in person;

or can help them with just one issue (summer vacation)

or task (ghostwriting letters to their parenting partner).

2. Before a client signs up for full service, offer a

comparison with an unbundled approach

Information is the essence of client-informed consent.

Compare and contrast a full service approach with lim-

ited services by discussing the benefits and risks of an

unbundled approach using following variables: clients'

ability or willingness to handle part of the work them-

selves, the difference in stress, cost differential, and

the ability of the client to later convert to a full service

approach after starting on a discrete task basis.

3. Offer stand-alone orientation services

Unbundle your role as a client educator from that of a

service provider. Develop services that can inform div-

orcing parents individually or together about legal or

parenting issues and available process options in your

community—then refer the clients to others rather than

providing the services yourself.

4. Turn your office into a divorce family classroom

By creating a client library with DVDs, computerized in-

formation, handouts and access to community resou-

rces, you can empower client's informed decision-mak-

ing by giving them information to help themselves or

keep their costs down within a full service context.

5. Be a shadow coach

Clients appreciate having you prepare them for nego-

tiations with the other party at Starbucks or a court

mediation session and having you available on call if

they need your ideas, advice, or support during the

session itself. Your involvement can remain confid-

ential so that the client can get your help without pro-

voking or frightening the other party.

6. Attend sessions as a consultant

As a professional trained and supportive of mediation

and collaborative law, you can attend sessions as a cli-

ent resource rather than an advocate.

7. Limit your services to be a conflict manager

Some matters are not yet agreement-ready and clients

may need help to gather information, handle immediate

issues, or locate/engage other experts. Be available for

these pre-settlement tasks and be open to the client

utilizing another mediator or representative to actually

negotiate the deal when the time is ripe.

8. Endorse confidential mini-evaluations (CME)

Put as many barriers as possible between the family

and the courthouse—and still get necessary expertise

and recommendations to resolve impasse. Offer CMEs

within the mediation and collaborative processes and

recommend the use of CMEs with other neutrals when

you already have another professional role.

9. Suggest and offer second opinions

Oncologists often insist that their patients obtain a se-

cond opinion before commencing or continuing treat-

ment. So should we. Make such unbundled second op-

inion recommendations a standard part of your practice

and consider offering second opinions yourself.

ASK THE EXPERTS | 147

10. Be an unbundled preventive conflict wellness

provider

After successfully resolving a family conflict, conduct

an unbundled future conflict prevention consultation to

discuss methods to resolve future disputes, regular

parenting meetings, and options to monitor and avoid

future family conflict. Helping clients maintain family

conflict wellness may be the most important contri-

bution that we make to the divorcing families we serve.

ABA Family Law Advocate, Fall 2012

25 Tips for Starting an Unbundled Peacemaking

Practice

1. Commit to legal access and a consumer approach.

2. Commit to the learning concepts, law, skills and craft

of unbundling.

3. Commit to making your living through non-court un-

bundling work.

4. Draft and vet a mission statement for your unbundle-

ing practice.

5. Draft and vet a business plan for your unbundling

practice.

6. Pencil out your profitability. Illustration: if you charge

$150 per hour and you believe that you can bill and

collect two unbundled or peacemaking hours per day,

four days a week, for 50 weeks per year, you could

anticipate $60,000 gross income. With 30% anticipated

income, your adjusted gross would be $42,000. With

this anticipated base, you could anticipate what add-

itional non-unbundling legal work (if any) you would

need to pay your living expenses and how much more

marketing you would need to do to increase your in-

come.

7. Reflect and continually re-evaluate: How is my plan

working? How can I improve?

8. Study law practice management books, particularly,

Jay Foonberg’s How to Start and Build a Law Practice,

5th Edition (ABA 2005).

9. Select an area for your practice which has an under-

served population. While it is better to live in the com-

munity where you practice, be prepared for a sub-

stantial commute to your practice in a geographical

area with a shortage of lawyers, particularly lawyers

who unbundle.

10. Be clear about the services that you are offering.

Inventory your current services and think about what

limited scope services you are already offering and let

your clients know about them.

11. Be prepared to accurately and succinctly explain

the option of unbundling and its benefits and risks to

clients who ask for full service.

12. Be alert to the ethical and malpractice risks of un-

bundling and be prepared to explain and handle them.

13. Invest the time to prepare unbundling friendly client

handouts and practice materials.

14. Do an unbundling impact study on your website,

firm brochure and other marketing pieces to make sure

that you inform prospective clients of the unbundled

services you offer.

15. Prepare a script for your staff to handle unbundling

inquiries from clients on the telephone or from website

messages.

16. Install Skype and arrange for conference call tele-

phone service to provide long distance unbundled ser-

vices.

17. Refine your assessment screening to make sure

that clients are appropriate candidates for unbundling.

18. Always use a current written unbundled client lawy-

er limited scope engagement agreement.

19. Clarify your fee requirements and make sure that

your limited scope clients do not owe you money, as

this situation only hurts your client relationship and will-

ingness to render further services to the client in need.

20. Design your office to be unbundling friendly with a

client library that provides information and education to

do-it-yourself clients.

21. Initiate an evaluation protocol to assess client satis-

faction.

22. Let other lawyers in your community know that you

unbundle and are willing to handle their referrals of cli-

ents that they will not take.

23. Assemble a board of advisors to meet at least four

times per year to guide and evaluate your practice dev-

elopment.

ASK THE EXPERTS | 148

24. Be proactive—find and utilize unbundling role mod-

els and mentors.

25. Attend unbundling trainings and conferences—

even if you have to travel.

On February 13, 2013, the ABA House of Delegates

passed Resolution 108 endorsing unbundling.

In 2014, Lawyers Mutual Insurance Company, one of

California’s largest lawyer malpractice insurers produc-

ed a one-hour video for its policy holders encouraging

the use of unbundling and providing guidance for its

ethical and effective use.

In 2015, the Law Society of England and Wales issued

guidance to its lawyers to effectively unbundle their

practices to bridge a needs gap for the middle class

caused by drastic cuts in their previous Medicare-type

form of legal aid.

Has all this progress (and more) convinced most lawy-

ers to expand their opportunities and provide needed

services by unbundling? On March 20, 2015, the Law

Society Gazette published comments on the Law Soci-

ety’s unbundling efforts (included here).

—We all know our barrister chums on the bench will

absolutely ignore all efforts to limit liability when un-

bundling, and make us responsible for anything that

went wrong during the case…Anyone who therefore

offers 'unbundled' advice has to be totally bonkers...

—Only a lunatic would agree to work on such terms.

You either act for a client or you don't. It’s black and

white in my view. You would end up doing stacks of

work pro bono because clients would not understand

the terms of the retainer and would expect to have their

hands held from the cradle to grave. It is risible that the

Law Society is endorsing this type of thing, and is a

quite shocking indictment of the state of civil litigation

at present.

—I got the email (on Guidance from the Law Society)

last night and almost exploded! It basically says—work

for less, don't do as good a job, and don't get paid a

proper fee, but take on all the liability.

—Indeed, it makes clear that if you do this, you will be

found liable for not having investigated the rest of the

client's circumstances.

—I would go so far as to argue that it does the pro-

fession a disservice, because it suggests solicitors are

liable to an extent that I think even the Court of Appeal

has never suggested. It won't take a long time for our

bewigged learned friends to dig this practice note up in

the future and use it in submission to His Honour that

our PII policy should be paying compensation to an un-

bundled client because we never asked her the cir-

cumstances of how much debt she was actually in (or

whatever).

—Good god! We are dismantling our own jobs! And our

own 'non' representative body is advocating it! Serious-

ly there has to be a break away from this whole ethos.

I cannot imagine any other profession voting, like a tur-

key, for Christmas….

—Why are the Law Society steering their members

down this sort of path? The civil litigation system is

broke I'm afraid. Suggesting we can all survive by

undertaking this type of work is moronic.

—To unbundle is to undermine. Clients rightly expect

nothing but the highest professional standards from

solicitors. Journeymen doing half a job in the eyes of

the client, irrespective of the weasel words in the retain-

er, will devalue the profession as a whole.

—Leave the unbundled to the unadmitted.

—I shall bundle until I can bundle no more.

—Just who are these people at the Law Society? Do

they know anything at all about anything? They really

must be absolutely crackers to promote this nonsense.

It just makes you scream.

Clearly, there will be many lawyers who will never un-

bundle. However, for those of you who enjoy working

with people who need your help and are willing to pay

for it, limited scope services can help differentiate you

and your practice from those lawyers who refuse to

unbundle.

If you are trained and committed to mediation and/or

collaborative practice, here is a new set of 5 unbundl-

ing tips for 2015 that might increase your revenue

while making a difference in the lives of many families

in conflict:

1. Offer unbundled letter writing services to tone down

harmful and pejorative comments and help your client

resolve matters faster.

2. Offer negotiation coaching sessions to help prepare

your client for a sit-down meeting with their spouse at

Starbucks or around the kitchen table. Role play and

ASK THE EXPERTS | 149

use your smartphone to record the practice nego-

tiation. Help your client learn and use I-statements.

3. Help your clients organize their paperwork so that

they can be effective in a settlement conference or

court hearing. Help them take a shoebox full of receipts

and make a chart of expenses.

4. Sit down with an unbundled client and go to

www.UptoParents.org, www.ourfamilywizard.com or

www.Split.com. These child-centered resources may

provide the ideas and tone that can save their children

from unnecessary long term harm.

5. Be an unbundled conflict wellness diagnostician and

provider. When a self- represented litigant takes you up

on your unbundling services, take a moment and ass-

ess their legal health and offer a Legal Wellness

Check-up.

You do not have to forgo the rest of your practice to let

clients know that you offer unbundled services. You

have the training and the care for the health of divorc-

ing families to provide needed services that these un-

derserved clients will be grateful to pay for.

Forrest (Woody) Mosten is internationally recognized as the

“Father of Unbundling” for his pioneering work in limited scope

services to provide affordable, accessible and understandable

legal services for the underserved. He is in solo private practice

as a family lawyer and mediator in Los Angeles in which un-

bundling and other non-litigation activities are the foundation of

his practice. He is the author of four books and numerous articl-

es about unbundling and other issues of legal access and

peacemaking, serves as a keynote speaker for legal and med-

iation conferences worldwide, and is adjunct professor of law at

the UCLA School of Law where he teaches Mediation and Lawy-

er as Peacemaker. Since 1989, Mosten has served as Chair of

The Louis M. Brown and Forrest S. Mosten International Client

Consultation Competition affiliated with the IBA that bears his

name. He has served on the ABA Standing Committee for Deliv-

ery of Legal Services, the ABA Commission on Interest on Lawy-

ers Trust Accounts, Chair of the ABA Dispute Resolution Section

on Integrating Collaborative Law into Law Schools, and has re-

ceived the ABA Louis M. Brown Lifetime Achievement Award,

as well as the ABA Lawyer as Problem Solver Award for his

contributions in Legal Access and Mediation. Woody will serve

on a plenary panel on legal access, Plenary II Access to Justice:

Different Strokes for Different Folks and co-conduct Workshop

48, Unbundling Legal Services at the AFCC 52nd Annual

Conference in New Orleans. He can be reached at

www.mostenmediation.com.

ASK THE EXPERTS | 150

April 2015

Top Ten Tips for Helping Parents Keep Children Out of the Middle

Mindy Mitnick, EdM, MA, Edina, Minnesota, and Zachary A. Kretchmer, JD, Minneapolis, Minnesota

As significant a change as divorce is for children, on-

going conflict between parents can cause problems for

children across a number of dimensions, including em-

otional development, social relationships and acad-

emic performance. All too often, even the best-inten-

tioned parents act in ways that exacerbate tension and

put the adult-sized weight of the divorce or separation

onto the shoulders of children. Parents need to know

how they can shield children from conflict while still lis-

tening to their concerns.

These practical tips are intended for family law pro-

fessionals to provide to clients they represent as attor-

neys, see in mediation, help resolve disputes through

parenting coordination and in mental health settings,

both for parents and children.

1. Parents should model appropriate behavior for

the child

Children constantly observe parental behavior. If a par-

ent is terse, rude, will not make eye contact, or is other-

wise disrespectful to the other parent, children notice

and think that such behavior is normal or okay. Further,

children identify with their parents. When it becomes

obvious that Dad doesn’t like Mom, a child is very likely

to question if Dad likes them because the child likes

Mom.

Even if it feels fake, making the effort to greet the other

parent in a positive way, using good manners with them

and avoiding a hostile or sarcastic tone, makes it com-

fortable for children to be in situations with both par-

ents, such as at a school event or athletic activity.

Further, co-parenting does not end when the child

turns 18. Graduations, weddings, grandchildren and

other important events will likely involve both parents.

Continuing conflict lessens the likelihood that both par-

ents or either parent will be included in these important

gatherings.

2. Parents should answer questions posed by the

child in an engaged and empathetic way

Children need to be heard rather than interrogated ab-

out what they say. For example, when a child says, “I’m

really tired,” merely asking what time they went to bed

may miss their need for comfort entirely. If a child stat-

es that he or she is unhappy with a decision, such as

why they cannot spend the night with a relative of the

other parent, reflective or active listening helps the

child feel heard and doesn’t blame anyone. Examples

include:

“Wow! That must be confusing. Let’s talk about

this.”

“Why, what do you think?”

“I understand what you’re saying, and your mother/

father and I will talk about it and get back to you by

__.”

“You sound really upset about this. Let’s sit down

and talk about it.”

Parents should demonstrate that they are listening to

their children and are willing to help them with their con-

fusion, fear, sadness and/or anger. It’s always okay for

the parent to ask the child whether there is anything

they can do to help.

3. To question or not to question children

When parents don’t get along well, they may think,

“What goes on in my home stays in my home,” and ask,

directly or indirectly, that the children not talk about

their time together. This teaches children to keep sec-

rets, which may actually prevent them from telling par-

ents about unsafe or frightening situations, such as

something that occurs at a friend’s home. A parent who

asks questions such as, “What did you guys do over

the weekend?” or “Where did you go to eat?” should

not be seen as intrusive, but rather as encouraging the

ASK THE EXPERTS | 151

child to feel free to talk about every part of their life.

When a child comes home from school, parents would

never say, “What happens at school stays at school.”

4. Parents must respond to the child’s needs now,

and their own needs later

Sometimes the child will ask a question or make a

statement that pushes a button. The words “Mom/Dad

said” are often triggers that remind a parent of the

difficulties they experienced with the other parent. Your

client may hear, “Dad says that you left us for another

man” or “Mom told us you are behind in child support

and that’s why we can’t go on vacation this year.” It’s

important for parents to wear their “parent” hat at the

time they are talking with the child, and appropriately

respond to the child’s question/statement (See Number

2, above). It may seem helpful to agree with the child,

“I know what you mean. S/he used to do the same thing

to me,” but this would be putting the parent’s needs be-

fore the child’s. Instead, parents should react by using

one of the examples in Number 2, above, and take care

of their own needs later on, outside the presence of the

child.

5. Using “we” messages implies cooperative co-

parents

“We” messages show that the parents, although separ-

ated, are still a unified team. Parents can use these

messages even when they think the co-parent isn’t

trying to protect the child from the adult disagree-

ments. A statement such as, “I know you want to go on

Spring Break with your friends, but I need to talk to your

Mom/Dad about whether we think this is a good idea,”

models respectful and appropriate decision-making.

Parents should make sure children don’t think they

have to choose between the parents: “We’re both go-

ing to be at your awards ceremony and you can sit with

anyone you want. If you don’t sit with me, I’ll see you

afterwards before I go home.”

6. Parents should keep the children informed

(schedule, activities, big decisions), but not too

informed (financial circumstances, reasons be-

hind the divorce, other adult issues)

When parents say, “I’m going to be honest with the

children,” this often forecasts sharing too much or inap-

propriate information with the children. There is a great

deal of information parents don’t share with children

while they’re married or living together. Keeping those

same topics between the adults prevents unneces-

sarily burdening children and prevents them trying to

figure out who is “right.” Few parents share financial

details with their children, such as whether they’re wor-

ried about getting laid off. Telling children about fin-

ancial matters worries them and typically results in

them asking the other parent if the information is “true.”

Parents regularly promote positive myths like Santa

Claus and the Tooth Fairy and don’t worry about “being

honest” in that context. Parents should ask themselves

why they are thinking about sharing information now

that they wouldn’t have shared if the parents were still

together.

7. Keep the responsibility for constructive comm-

unication with the parents

When children realize that there is no communication

between parents they typically feel a need to fill the

void. Similarly, children may begin to protect parents

from hostile communication by taking on that role.

There are numerous simple guides to constructive co-

mmunication available to parents, such as “Biff”—Be

Brief, Informative, Friendly and Firm.1 Parents should

consider themselves co-workers at Raising Our Child-

ren, Inc., and consider how they would react if they saw

a colleague in the store, or at the child’s ballgame.

They would not be rude, dismissive, condescending, or

otherwise belligerent, but rather would model good so-

cial behavior to the child. Telling clients to react as they

would to anyone else rather than make a negative ex-

ception for the other parent can make a dramatic diff-

erence. Parents should remember that children are al-

ways watching, listening and remembering how their

parents interact.

8. Pretend that any communications will be view-

ed/heard by the judge (or the children) someday

Communicated enmity between parents can cause

emotional problems for children, and lead to legal

ramifications if the parties’ judicial officer becomes

privy to disrespectful and uncooperative communi-

cations. A good rule of thumb is to assume all com-

munications (in-person, over the phone, or text/email)

can be viewed by people other than the other parent.

There are very few circumstances that demand an im-

mediate response, and many parents have lashed out

at the other parent without stopping to consider the

possible ramifications of their communication. Drafting

an email or text and letting it sit for an hour or more will

allow the sending parent to fully consider potential

consequences of rude or disrespectful communica-

tions. Pretending that the child or the judicial officer is

copied on any written communication reminds parents

to be brief and respectful. Further, given that many par-

ents allow children to use their smartphone or com-

puter, the possibility that a child will actually view host-

ile or degrading communication between the parents

can be very real.

ASK THE EXPERTS | 152

9. Pay attention to who owns the problem

Parents sometimes react too quickly in telling a child

the issue is “grown-up” business. When a child says,

“Mom told me I have to ask you if I can go to Ryan’s

birthday party,” telling the child, “Your mom should

have talked to me about this,” may leave the child feel-

ing helpless in solving a simple problem. On the other

hand, when a child says, “Dad says you’re supposed

to buy me new shoes,” this appears to be a grown-up

issue. Responding with reassurance that the parents

will work this out helps kids get out from between the

grown-ups. Sorting out whose problem it is can be trick-

y: Is this request one that the child would have made

to either parent or does this sound like the child is

reporting something the other parent wants? Will telling

the child you will talk to the other parent leave them

feeling stuck and as though there will never be a de-

cision? Sometimes the best course is to answer the

child’s question or respond to the request even though

the other parent should have spoken to you first. Par-

ents sometimes say, “When I get paid next, we’ll get a

pair of shoes” to avoid the child waiting while the

grown-ups discuss the issue.

10. Be careful about taking children’s reports liter-

ally

There are a variety of reasons why children’s state-

ments and questions to their parents may be unre-

liable. Sometimes they do report exactly what they

heard, but not everything the other parent said. Young

children aren’t good reporters of the context of events

or statements. They may be accurately reporting the

effect but not the cause: “Mommy pulled my arm and

hurt me” may be true, but the child doesn’t report that

he was stuck in the grocery cart and Mommy was trying

to help him get out. Older children often report the part

of the conversation that fits with what they want: “Dad

said I can go to the carnival with him” does not include

the full statement, “You can go the carnival with me if

that’s our night together.” Although it’s hard to admit,

sometimes children are manipulative to get what they

want and purposely don’t provide all of the information

when they know a parent is likely to believe the worst

of the other parent, such as, “Mom said you’re paying

for my class trip.” A good response to such a statement

is, “I understand; Mom and I will talk about it and you

and I can discuss it afterwards.”

REFERENCES

Eddy, B. (2005) High Conflict People in Legal Disputes. HCI

Press.

Garber, B. (2008) Keeping Kids Out Of The Middle. Health

Communications.

Ricci, I. (2006) Mom’s House/Dad’s House. Simon & Schuster.

Ross, J. (1996) Joint Custody with a Jerk. St. Simon’s Press.

ASK THE EXPERTS | 153

May 2015

Ten Tips for Working with Interpreters and Translators in a Court Setting

Grace Hawkins, LCSW, Director, Conciliation Court, Arizona Superior Court, Pima County, Tucson, Arizona, and Hon. Emile Kruzick,

Superior Court of Justice, Toronto, Ontario, Canada

Have you ever wondered what the difference is bet-

ween an interpreter and a translator? Interpreters work

in oral or sign languages between two people who do

not speak the same language and are a cultural and

linguistic bridge between those two people. They use

informal spoken rules of language to convey the mess-

age orally. Translators work with the written word. They

take a document in a source language (Spanish) and

turn that into a document in the target language (Eng-

lish). They bridge the gap between two parties who do

not speak the same language in writing and use the

formal written rules of language to do so, including syn-

tax, grammar, punctuation and idiomatic usage. Both

interpreters and translators transfer meaning from one

language to another language. Here are some tips for

working with translators and interpreters in a court set-

ting.

1. Are they qualified?

Ask for a resume that documents their training and

education. A qualified professional will present their

credentials when asked. An interpreter must have acc-

reditation, pass the requisite exams and be qualified by

the jurisdiction in which the interpretation takes place.

In most jurisdictions the interpreter will be required to

take an oath or affirm as to qualifications and profici-

ency in the two languages and have the ability to pro-

vide the service. Translators usually have an A and a

B language. Sometimes translators work in only one

direction, for example from Spanish to English. If they

are bi-directional, they usually know both languages

equally well. Be familiar with the certifications and qual-

ifications that are required in your jurisdiction for inter-

preters and translators.

2. If there is one available, work with the court int-

erpreter’s office in your jurisdiction

There are times when the court provides the interpreter

and times when the parties/lawyers are expected to do

the hire. Many courts have court interpreters employed

by the court to translate and/or interpret. They may

know of interpreting or translation professionals who

work in many different languages in your community

who are qualified to do the work you are seeking. They

are a valuable resource who may be able to steer you

to other resources.

3. Before hiring an interpreter or a translator neg-

otiate all of the payment and job details up front

Will they be paid by the job, by the day or by the hour

if they are an interpreter? Will they be paid by the word,

by the job or by the length of time it takes if they are a

translator? Will they submit an invoice at the end of

their service? What is the deadline for the completion

of the translation? Having the details worked out up

front will avoid misunderstandings and surprises upon

completion of the work.

4. Ask your interpreter up front what they need in

order to do their job

They may need you to repeat things or look up a word.

Oral interpreters do their job in the moment. Be aware

that interpreter fatigue is a risk of the job as the task is

both physically and mentally challenging. The court sh-

ould be informed if fatigue becomes a problem or if and

when a break is necessary in the proceeding. In some

areas if the session is going to go longer than an hour,

two interpreters may be required.

5. For interpreter, it is important to provide prep

materials and as much information as possible

about the case

Provide the interpreter with information about the as-

signment to make the task easier and more efficient. If

you will be referring to handouts or court orders, give

those to the interpreter in advance. An interpreter sh-

ould make an effort to become familiar with the legal

terminology particular to the assignment. Dialectic diff-

erences in languages exist and may create problems.

The court interpreter should be informed not to hesitate

to seek direction from the court if there are difficulties

with idiomatic expressions, culturally bound terms rel-

ated to the language/culture or legal terminology or

anything else that might interfere with their ability to

provide adequate service.

ASK THE EXPERTS | 154

6. Conflicts of interest can occur in a case

By providing the interpreter/translator advance inform-

ation on the case, conflicts of interest can be avoided.

Interpreters should maintain a professional relationship

with court staff, lawyers, parties and witnesses to avoid

the risks of partiality. Family members and friends sh-

ould not be used as interpreters. An interpreter must

use the best skills and judgment and interpret accur-

ately without embellishing, omitting or editing, and they

must keep all information confidential.

7. Translators should have glossaries and inform-

ants available to them

Someone who is familiar with the document should be

available as a resource to the translator so they have

someone to talk to if there is a question related to what

the document is trying to convey. A document is not a

live person, so the only way to get meaning from it is

through the written word. The translator may need to

speak to someone to clarify what it is they are trying to

have the document convey. And if you have a glossary

of what the terms you use in your area mean, give that

to the translator as well.

8. Give your translator the specifications on what

the final document should look like

Are you going to format the document or do you want

them to add the headings, bold title, or insert photos?

Tell them up front what the end product should look

like.

9. Whenever possible hire support and profess-

ional staff members who are bilingual

Do not use an interpreter, if possible. Especially in fam-

ily law cases, people are sharing private and personal

information. When people get emotional they often re-

vert to the language they are most comfortable speak-

ing. If a large portion of your clientele speaks another

language, having some staff fluent in that language will

help to make the client feel more at ease.

10. Language lines are an option for those in less

populated areas and for lesser known languages

There are some reputable telephonic interpreting ser-

vices available. Do your research and if no other op-

tions are available in your local area, a language line

may be a great resource for you. Just like a telephonic

mediation or court hearing, you will miss verbal cues

and body language, but with adjustments like asking

for clarification and repeating back what was said for

clarification, using remote interpreting will allow you to

serve your clients.

ASK THE EXPERTS | 155

July 2015

Low-Income and Never-Married Fathers and Families: Context and Perspective for Service

and Support

Jacquelyn L. Boggess, JD, Co-Director of the Center for Family Policy and Practice, Madison, Wisconsin

Custody and other issues of parenting time and place-

ment are areas of family law and family interaction that

can be very contentious and emotional—with or with-

out lawyers, and regardless of marital status. The adult

conflicts, plus the difficulty inherent in providing a con-

venient, secure, and familiar residence for children in

two different places, are obvious concerns. The diffi-

culty can become impossibility in situations where both

parents are poor. Many parents lack the resources to

access the services of legal professionals but, more

importantly for some families, parents may be unable

to provide for their own and their children’s basic

needs—regardless of the parenting time arrange-

ments.

Community-based fatherhood programs and service

providers focus on poor and unmarried noncustodial

fathers who are facing welfare and child support sys-

tems that create or exacerbate barriers to parenting

time. They assert that many fathers and mothers know

and understand the value of good parenting and invol-

vement from fathers, but that society, and particularly

government agencies and institutions, do not value any

contribution of fathers that is not financial. They con-

tend that many unmarried fathers are poor and need

jobs and training, but these groups also assert men’s

ability and capacity to nurture and support children in

ways that include, but are not limited to, financial con-

tribution.

The following points of perspective and understanding

will provide a context for low-income families nego-

tiating the family court system.

1. The structure of social welfare support systems to

which poor families: men, women, and children, are ex-

pected to apply for aid and support is based on public

policy that may create barriers to effective co-parenting

relationships. Fathers of children who receive welfare

or other safety net services are often poor themselves.

They are unemployed or severely underemployed, and

they owe child support. Child support policy is based

on the “deadbeat dad” stereotype, resulting in all of the

aggressive enforcement mechanisms that are neces-

sary to induce those who do not want to pay child sup-

port, also used against poor fathers who cannot pay

child support.

2. The child support enforcement system has become

more complicated for low- income parents over the last

twenty years. State child support agencies have moved

toward expedited and, very often, administrative pro-

cesses. Paternity establishment has moved toward vol-

untary, summary processes occurring outside the cour-

troom. Since these administrative processes are judi-

cial in nature, and the concepts involved are legal, par-

ents frequently assume that the administrative staff

with whom they interact have judicial status and that

the decisions these staff make are judicial rulings. Par-

ents do not understand how or know whether they can

present evidence that might persuade the court of their

perspective or position.

The system is very complex and unremitting, and it is

based on consistent payment of a set amount. Without

an understanding of the system (or access to the ser-

vices of a legal professional), parents who cannot pay

are subject to seemingly insurmountable problems.

Nonpayment subjects parents to the possibilities of

accumulation of arrearages, conviction and jail for

contempt, and loss of license privileges (both driver’s

and professional licenses are sometimes necessary to

continue working).

3. Most low-income noncustodial parents want to con-

tribute financially and emotionally to their children and

families. However, like many poor custodial parents,

they are dealing with their own lack of economic via-

bility; including lack of education and training, lack of

employment and employment opportunities, race and

class discrimination, criminal records, and lack of ident-

ifying and validating credentials (driver’s license, perm-

anent address, and previous work history).

ASK THE EXPERTS | 156

4. Very low-income parents and parents who have

never been married have no divorce proceeding to an-

chor or initiate the parenting time petitioning or pro-

ceedings. Generally, poor, never-married couples are

in the courtroom on the petition of the state for paternity

establishment and child support, not of their own voli-

tion for custody and parenting time determinations.

Parents who are moved into the family court system by

the state through the welfare agency or some other

administrative agency have no control over the pro-

cess. They may react and respond based on misunder-

standing and misinformation, which can create addi-

tional barriers such as confusion, fear, and anger lead-

ing to disinterest and avoidance of the system and the

process.

5. Some non-marital family situations are cohabiting

families whose reasons for not getting married may

include issues of eligibility requirements for social ser-

vice programs used by the custodial parent. This is a

concern when the social service needs of the child and

family include child-care, housing, food stamps or cash

benefits. This situation might naturally put the onus on

the father as an outsider, whose presence could get

the family benefits terminated (because he is living in

the house regardless of the agency regulations against

his residence). These families are unlikely to request

court orders for parenting time or visitation.

6. Fatherhood programs that serve low-income men,

mostly men of color, through employment and peer

support service are generally not the recipients of

funding or training around the issues of parenting time

or custody. There are at least two very important rea-

sons: (1) most of these programs serve men who have

been summoned to the courtroom by the state child

support agency for purposes of paternity and child sup-

port orders; (2) the most essential and most time con-

suming services these programs provide are employ-

ment and negotiation of the child support system.

7. In low-income communities of color, there is some

concern about how men are treated in institutions—

child support agencies, jails, police stations, and court-

rooms. Parents (and communities) want safety and

security for themselves and their children. This circle of

concern and care includes men who may need pro-

tection from government agencies and institutions. Dis-

trust based on fear, misinformation, and negative ex-

perience keeps parents away from courts and legal

processes.

Jacquelyn L. Boggess, JD, has worked with the Center for

Family Policy and Practice since its inception in 1995. Her work

as a policy analyst involves investigation of the welfare system,

family law courts, and the child support system. Her particular

interest lies in the interrelations among these systems, and how

the social welfare policy and practice that result from this rela-

tionship affect low-income fathers, mothers, and children. Ms.

Boggess has concentrated on the question of the impact of

government initiated “family formation” and father involvement

policy on the safety and well-being of women and children. Ms.

Boggess has a particular interest in the impact of non-resident

father involvement on mothers and children. Her work on this

issue has resulted in connections and collaborations with dom-

estic violence organizations and progressive advocacy groups

working on poverty reduction, violence prevention, and econo-

mic justice for parents and children. Ms. Boggess is a graduate

of the University of Wisconsin-Madison Law School.

ASK THE EXPERTS | 157

August 2015

Courthouse Facility Dogs—An Innovation to Improve Services for Your Clients

Ellen O’Neill-Stephens, JD, Founder of Courthouse Dogs Foundation, Bellevue, Washington

The Need for Trauma Sensitive Courts

Families approaching the King County Juvenile Court

for the first time see a four story bunkerlike building with

rows of narrow vertical windows instead of horizontal

slits. A mural painted on the wall near the front ent-

rance looks more like graffiti than a work of art. The

lobby is even less inviting. Seattle Post-Intelligencer

reporter Levi Pulkkinen recently wrote, “When court is

in session, the central waiting area at the Youth Service

Center has the ambience of an airport terminal and the

feel of an emergency shelter thrown up after a natural

disaster. Rather than an earthquake or wildfire, though,

the dozens of families gathered there are caught in

more personal calamities.”

This is where I started my career as a deputy pro-

secuting attorney back in 1983. At first, I loved the

grittiness of “juvie” and I enjoyed prosecuting crimes of

violence in superior court. However, after several

years, the cumulative effect of witnessing people suffer

intense emotional trauma and experiencing the nega-

tive consequences of working in an adversarial system,

I realized that a courthouse can be a toxic environment

that damages people. But since this was the way the

legal system had conducted business for hundreds of

years, it didn’t seem likely it could ever be different.

The Genesis of Courthouse Dogs

In 2003, I rotated back to juvenile court. It hadn’t

changed and I wasn’t looking forward to my new

assignment as drug court prosecutor. I dreaded the

idea of working with dysfunctional families and dam-

aged drug-addicted teenagers. Although a few of the

kids turned their lives around, most didn’t. I knew it

would be depressing.

Things were going well in my family life, however. My

son Sean, who has cerebral palsy and virtually lives in

his wheelchair, graduated from high school and we

were going to get him a service dog. Since Sean is

entirely dependent on people for all of his needs, my

husband and I went to the assistance dog school to

learn how to handle his dog for him. It was there that a

big Golden-Lab mix named Jeeter entered our lives.

Although he was only two years old, Jeeter seemed like

an old soul and was very calm and loving towards Sean

and anyone else who came within reach of him. While

at the assistance dog school, I also learned that dogs

like Jeeter could be placed with professionals who

worked at hospitals and special education classrooms

to help the people they served. These types of dogs

are called facility dogs to distinguish them from service

dogs that assist people with disabilities. This was a bit

of information that would soon become useful.

Upon our return home, we discovered there was one

day a week that Jeeter couldn’t be with Sean because

of his caregiver arrangement. So rather than leave

Jeeter at home alone for 10 hours, I asked Juvenile

Drug Court Judge Inveen if Jeeter could be a part-time

facility dog and come to court to provide some comfort

to the kids.

Surprisingly, she and the drug court team agreed.

Jeeter’s presence had a positive impact not only on the

teenagers, but also on their families and the drug court

staff. One teenager who graduated from drug court

after years of struggle attributed her final success to

Jeeter’s presence.

Soon thereafter, the other deputy prosecutors in my

office asked for Jeeter’s assistance with children that

had been sexually assaulted. It was time for the King

County Prosecutor’s Office to get a facility dog. Ellie,

trained by Canine Companions for Independence, was

placed there in 2004. Her primary job was to snuggle

with children while a forensic interviewer questioned

them about their sexual abuse, and to accompany kids

when they testified in court.

A Case Study: How a Dog Can Make a Difference

A five-year-old boy had to describe to a jury how his

father had viciously beaten his mother. Ellie’s presence

during trial preparation made it possible for the boy to

convey how terrifying the experience had been for him,

so the deputy prosecutor felt confident that the boy

would be able to testify with Ellie lying beside him in the

witness box. However, that wasn’t the case. When

ASK THE EXPERTS | 158

questioning began, the boy wasn’t able to utter a word.

The deputy prosecutor didn’t realize that the boy’s aunt

was glaring at the boy from where she was seated in

the courtroom. Before giving up on him as a witness,

the prosecutor asked for a recess in the judge’s

chambers to try to understand what was happening.

Ellie accompanied the boy for the meeting with the

lawyers and the judge.

Despite the judge’s efforts to engage with the child by

showing him photos of her dogs, the boy was silent.

Eventually, the deputy prosecutor stepped in and en-

couraged the young boy to play with Ellie. Within a few

minutes, the boy was smiling and seemed more rel-

axed. The judge asked the boy why he did not answer

the prosecutor’s questions, and he explained that his

angry aunt was scaring him. The aunt’s removal from

the courtroom enabled the boy to regroup and share

his account of what occurred. When he struggled for

words, he would reach down, pet Ellie and then con-

tinue to describe what happened. The jury convicted

his father. The boy’s mother later told the prosecutor

that with her husband locked away for several years,

she and her son finally felt safe.

The Development of Courthouse Dog Programs in

Criminal and Civil Proceedings

This program became so successful that Celeste Wal-

sen, DVM, and I joined forces to educate the legal

community about the benefits of this innovation. We

named our organization Courthouse Dogs. Soon, doz-

ens of courthouse facility dogs began working in child

advocacy centers and prosecutor’s offices throughout

the country.

We were contacted by the New Mexico Children’s Jus-

tice Act Advisory Group in 2009. We learned that the

Children's Justice Act (CJA) provides grants to states

to improve the investigation, prosecution and judicial

handling of cases of child abuse and neglect, parti-

cularly child sexual abuse and exploitation, in a man-

ner that limits additional trauma to the child victim

(emphasis added). The advisory group believed that

the placement of these dogs would be one of the best

ways to reduce trauma for children who had been

abused or neglected, and they wanted to fund the

placement of a few courthouse facility dogs in their

state.

Chaves County CASA, New Mexico

In 2010, Carrie-Leigh Cloutier, the executive director of

Chaves County CASA, located in Roswell, New Mex-

ico, was among the first to add the presence of one of

these loving dogs to the services they provide to

children in their community. Now courthouse facility

dogs Emma and Zia assist children in civil and criminal

proceedings, during forensic interviews, their special

children’s programs and court-ordered visitation. Em-

ma’s immediate presence after the 2014 Berrendo

Middle School shooting to comfort the children inspired

the local district attorney to acquire courthouse facility

dogs for the courthouses in the three counties of the

5th Judicial District in New Mexico.

13th Judicial Circuit, Tampa, Florida

Brenda Kocher, volunteer guardian ad litem, and faci-

lity dog Tibet began working in the 13th Judicial Circuit,

Tampa, Florida, in February of 2014. Since beginning

their work together, the team has worked with hund-

reds of children in courtroom waiting areas, hearings,

trials, forensic interviews, sexual assault examinations,

psychological evaluations and treatment sessions, and

public awareness events. Brenda says, “Tibet helps us

provide a more trauma-sensitive space for our children

in every venue in which she is used. Her value to adult

staff working in this stressful environment is immea-

surable.” Brenda recently received the Statewide Guar-

dian Ad Litem Volunteer of the Year Award.

Marion County Family Court, Ohio

Kathy Clark, PhD, program and grants administrator

with the Marion County Family Court in Ohio has been

a social worker for over 35 years, working with children

and adolescents in schools and the family court who

are experiencing parental separation and divorce. Cur-

rently, Kathy is the dog handler for court facility dog,

Camry. Camry now plays a role in helping children who

are involved in domestic relations and juvenile cases

by accompanying them in court hearings and inter-

views. Kathy has expanded their duties to facilitating

interaction between parents and their children in super-

vised visitation. When Kathy sees children refusing to

engage with their parents, she introduces them to

Camry and soon parent and child are petting him toge-

ther. This joint session of nurturing behavior can be the

first step towards healing.

Williamson County CASA, Tennessee

Executive director of Williamson County CASA, Mari-

anne Schroer learned about courthouse facility dogs

when we presented at the 2014 National CASA con-

ference. A year later she became the handler of Rock-

lin. Marianne reports, “Rocklin has been such a wel-

come addition to our staff at Williamson County CASA.

Last week was a great example of his contribution to

our kids and our community. He was in juvenile court

on Monday and at the Foster Care Review board on

Tuesday. He worked with 10 children at various times

during those days. He was available to educate the

school system on the work that he does with kids. He

ASK THE EXPERTS | 159

attended a Rotary meeting to help build awareness and

raise money for CASA, and he attended the district

attorney staff meeting to share what courthouse dogs

are bringing to our court system. As you can see he is

a busy boy who provides a valuable service on many

levels!”

The Need for Best Practices in this Field

It has been so rewarding to see how such a simple

concept has made a huge impact on our legal system.

What first seemed like a crazy idea has become almost

mainstream. Five appellate court decisions have re-

viewed the practice of dogs assisting vulnerable wit-

nesses when they testify in court and have found that,

if certain procedural steps are taken, it is a justifiable

accommodation for a witness. However, just because

it is a simple idea doesn’t mean that any dog or handler

can perform to the high standards needed to ensure

that a defendant’s constitutional rights are not violated,

and that the dog has been adequately trained and

assessed to be safe during close contact with children,

and is comfortable working in a high-stress environ-

ment.

The best practice model for dogs working in the legal

system is the use of dogs that are graduates of an

accredited assistance dog organization and are

handled by professionals working in the legal field.

These non-profit organizations should be members of

Assistance Dogs International, an organization that

has a comprehensive accreditation system and requir-

es members to be regularly assessed to ensure they

meet the high standards expected of assistance dog

programs. Because these dogs and their handlers are

trained to such high standards, Arkansas and Illinois

recently implemented legislation requiring programs

that use dogs to assist children in the courtroom to use

this model.

Dogs Provide a Unique Sense of Safety and Com-

fort

As I struggled to write a concise conclusion about the

many ways these special dogs can make a difference

in a child’s life, I received this photo from CASA director

Carrie-Leigh Cloutier, with the caption: “Zia under my

desk with a little boy who watched his mother try to kill

his baby brother.” No other words are necessary.

Learn More—2015 International Courthouse Dogs

Conference

Learn more about courthouse facility dogs assisting

children and their families from the practitioners men-

tioned in this article at the 2015 International Court-

house Dogs Conference in Seattle, October 4-6, 2015.

Registration closes September 25, 2015.

Ellen O’Neill-Stephens, JD, is the founder of the Courthouse

Dogs Foundation, a nonprofit organization that educates legal

professionals and promotes best practices for the use of dogs

during the investigation and prosecution of crimes. She retired

in 2011 as a senior deputy prosecuting attorney from the King

County Prosecutor’s Office in Seattle, Washington after 26

years of service. In 2003, she pioneered the use of facility dogs

that are graduates of assistance dog organizations to provide

emotional support to everyone in the legal justice system. Ellen

graduated from the University Of Oklahoma School Of Law in

1983. In 2010, Bark Magazine named her among the “100 Best

and Brightest for Amazing Advancements in the Dog World Over

the Past 25 Years”. In 2013, Oprah Magazine named Ellen a

“Local Hero” for her work. She also received recognition from

the Hague Institute for the Internationalization of the Law for a

successful innovation in their competition for the Innovating

Justice Award. Ellen’s son Sean and his service dog, Jeeter,

were the inspiration for her efforts to make the criminal justice

system more humane.

ASK THE EXPERTS | 160

September 2015

Top Ten Reasons to Support a CASA Volunteer Program

Doug Stephens, Executive Director, The Ohio CASA/GAL Association

Court Appointed Special Advocates (CASAs) are pri-

vate citizens from all walks of life who are strictly

screened and extensively trained to advocate for child-

ren involved in juvenile court proceedings as a result of

being victims of abuse, neglect, or dependency. The

volunteers research the child and family’s circum-

stances, make recommendations to the court, advo-

cate for the child, facilitate the offering of services, and

monitor the progress of the child. They do not replace

children’s services caseworkers, nor do they provide

legal services, but instead serve as an independent

appointee of the court to advocate for the best interests

of the child. Here are ten reasons to support a CASA

volunteer program:

1. “To give a child a CASA is to give them a voice. To

give them a voice is to give them hope, and to give

them hope is to give them the world.” —a former foster

child

2. Children with CASA volunteers spend less time in

foster care. In at least one study, children without a

CASA volunteer spent an average of over eight months

longer in foster care compared to children with a CASA

volunteer.

3. Children with CASA volunteers do better in school.

Compared to other children involved in court as a result

of abuse or neglect, children appointed CASA volun-

teers are more likely to pass all courses, less likely to

be disruptive in class, and less likely to be expelled.

4. Since its creation in 1977, in Seattle, by juvenile

court Judge David Soukup, nearly 1,000 CASA pro-

grams have been established in 49 states with 77,000

volunteers serving a quarter of a million children every

year.

Cynthia A. Calkins, MS, and Murray Millar, PhD, “The Effectiveness

of Court Appointed Special Advocates to Assist in Permanency

Planning,” Child and Adolescent Social Work Journal, volume 16,

number 1, February 1999.

5. In Ohio, 36 CASA programs exist serving 42 coun-

ties. Last year, 2,088 Ohio CASA volunteers served

7,698 children.

6. CASA volunteers see their children a minimum of

once a month and average only three case assign-

ments at a time.

7. A paid CASA program staff person averages 30 vol-

unteers. With each volunteer supervising three child-

ren, one paid staff serves up to 90 children.

8. Last year, in Ohio, CASA volunteers worked in ex-

cess of 55,334 hours and traveled over 287,362 miles,

largely unreimbursed, serving their children.

9. In at least one study, children assigned a CASA

volunteer were more likely to have a plan of perm-

anency, especially children of color, and were sub-

stantially less likely to spend time in long-term foster

care.

10. Most CASA programs rely significantly on private

donations and funding. In Ohio, 56% of funding for

CASA programs comes from non-public sources.

The Ohio CASA/GAL Association is the state non-profit

membership driven association that supports the work

of local CASA programs throughout Ohio. We help

local CASA programs with volunteer recruitment, train-

ing, funding, state leadership, quality assurance, and

management assistance. Ohio CASA is a member in

good standing of the National CASA Association. Our

annual Celebrate Kids! State Conference will be held

October 14-16, in Columbus, with over 300 attendees

from all 88 counties.

Read more: Evidence of the Effectiveness—Key Out-

comes of the CASA/GAL Model

University of Houston and Child Advocates, Inc., Making a Difference

in the Lives of Abused and Neglected Children: Research on the

Effectiveness of a Court Appointed Special Advocate Program.

Abramson, S. (1991). Use of court-appointed advocates to assist in

permanency planning for minority children. Child Welfare, 70, 477-487.

ASK THE EXPERTS | 161

Doug Stephens has been with Ohio CASA since April 2011. He

has been affiliated with Ohio CASA since 1996 serving as a

board member, treasurer, and the chair of the standards

committee. Doug has spent over 33 years working within the

Ohio court system, initially with Delaware County Juvenile

Court, then with Licking County Probate/Juvenile Court and

retiring from the Supreme Court of Ohio after 20 years on staff.

With the Supreme Court he was a senior staff member serving

as the Director of the Judicial & Court Services Division, which

leads all support efforts for the nearly 400 Ohio courts and over

700 judges. Doug is a former member of the National

Association for Court Management, the National Council of

Juvenile and Family Court Judges, the Ohio Association of

Court Administrators, the Ohio Sexual Assault Task Force, and

the Ohio Criminal Justice Information Services Advisory Board.

He served on the magistrate search committee for the US

District Court and is a past board president of the Juvenile

Diabetes Research Foundation. Doug is a graduate of The Ohio

State University and a lifelong resident of central Ohio.

ASK THE EXPERTS | 162

INDEX

Addiction, 96, 97

Adolescent, 24, 62, 90, 109, 120, 129

ADR Program, 6, 30, 87, 121, 135

AFCC Task Force, 35

Alienation, 35, 61, 62, 90, 120, 129

Artman-Smith, Michelle, 63

Asian Communities, 115, 116, 117

Assessment, Brief Focused, 28

Aston, David, 11

Bala, Nicolas, 61

Barsky, Allan, 99

Bias, 13, 35, 45, 49, 59, 78, 80, 82, 85, 87, 89, 115,

123, 125, 135

Boggess, Jacquelyn, 155

Bohen, Mary Catherine, 89

Boshier, Peter, 11

Bronson, Sue, 9, 105

Brownstone, Harvey, 31

Burns, Annette, 37, 75, 121, 144

Cameron, Nancy, 26

Cardullo Ortiz, Pamela, 52

Carpel Miller, Vicki, 8

Cavallero, Linda, 28

Child Custody Evaluation, 7, 13, 45, 47, 76, 80, 118,

123, 125

Child Custody, 73

Child Development, 7, 35, 56, 89

Child Support, 54

Children, 7, 18, 24, 38, 56, 58, 66, 73, 80, 94, 120, 150

Clark, Kathleen, 7

Coates, Christine, 6, 59, 78, 87

Collaborative Practice, 26, 44

Communication, 99, 102, 105, 120, 139

Court Appointed Special Advocates (CASA), 160

Court Program, 15

Courthouse Facility Dogs, 157

Court-Involved Therapist, 35

Cross-Examine, 47, 49

Dabby, Chic, 115

Davis, Gabrielle, 73

Deutsch, Robin, 6, 59, 70, 120

Direnfeld, Gary, 87

Divorce, 12, 18, 20, 24, 25, 26, 27, 37, 38, 40, 56, 94,

100, 103, 111, 113, 124, 141, 146, 150, 151, 156

Domestic Violence, 6, 10, 15, 34, 35, 42, 43, 57, 59,

63, 68, 73, 74, 90, 115, 116, 117

Drozd, Leslie, 7, 89, 129

Dwyer, Michael, 92

Eddy, William, 22, 139

Emotion, 9, 11, 18, 19, 22, 38, 39, 70, 105, 106, 107,

108, 109, 115, 116, 125, 142, 155, 157

Erard, Robert, 125

Ethic, 10, 99

Family Court, 17, 92

Family Law Professional, 56, 58, 61, 75, 80, 89, 99,

107, 115, 121, 131, 141, 146, 153, 155, 157

Family, 12, 44, 63, 129, 155

Fathers, 24, 64, 115, 155

Fee, William, 17

Fidler, Barbara Jo, 6, 61

Fieldstone, Linda, 10, 15, 63

Finn, David, 56

FLAFCC Parenting Plans Taskforce, 20

Forensic Consulting, 82

ASK THE EXPERTS | 163

Forensic Evaluation, 96, 123, 124

Fowler, Clare, 135

Frederick, Loretta, 73

Gatekeeping, 129

Goren Slovin, Sherri, 44

Gottlieb, Siri, 87

Gould, Jonathan, 7

Greenberg, Lyn, 35, 89

Hague Abduction Convention, 64

Hawkins, Grace, 42, 153

Herman McColley, Denise, 17, 66

Herman, Gregg, 102

High Conflict, 10, 15, 24, 35, 37, 62, 79, 87, 139, 141,

142

Holdren, Cindy, 54

Holiday, 12, 51, 67, 70, 112, 113, 145

Interpreters/Translators, 117, 153, 154

Izzo, Ellie, 8

Judge, 11, 17, 66, 92

Judicial Interview, 58, 66

Judicial Officer, 11, 28, 59, 66, 67, 92, 120, 131, 133,

151

Juhas, Mark, 131

Karlan, Sandy, 15

Kaufman, Robert, 94, 123

Kelly, Joan, 6, 24

Kline Pruett, Marsha, 85

Kreeger, Judith, 15

Kretzmer, Michael, 131, 150

Kruzick, Emile, 11, 153

Kuehnle, Kathryn, 7, 80

Lang, Robert, 96

Levin, David, 30

Libby, Peg, 12

Low-Income, 52, 155, 156

Magruder, Rebecca, 105

Management, Risk, 13, 100

Martin, Lorraine, 58

Martindale, David, 13, 45, 118

Mayer, Bernard, 141

McIntosh, Jennifer, 18

Mediation, 6, 9, 17, 18, 20, 23, 40, 42, 43, 73, 75, 78,

79, 99, 111, 112, 113, 114, 121, 122, 133, 135, 137,

139, 141, 146, 148, 150, 154

Mediator, 9, 135

Medoff, David, 76

Mental Health Professional, 61, 89, 99, 107, 115, 141,

153

Mitnick, Mindy, 7, 109, 150

Money, 6, 32, 51, 87, 104, 108, 122, 137, 144, 147,

159

Mosten, Forrest, 40, 146

National Council of Juvenile and Family Court

Judges (NCJFCJ), 34

Never-Married, 155

Newman, Judy, 68

Nullet, Joseph, 68

O’Neill-Stephens, Ellen, 157

Olesen, Nancy, 129

Online, 37, 75, 99, 135

Parent, 18, 120, 150

Parenting Coordinator, 6, 10, 59, 87, 144

Parenting Disputes, 31

Parenting Plan, 6, 18, 20, 24, 26, 33, 38, 56, 57, 62,

67, 17, 89, 94, 99, 111, 119, 124, 132, 133, 134, 141,

145

Pedro-Carroll, JoAnne, 38

Personality-Disorder, 22

Pickar, Daniel, 94, 123

Psychological Testing, 76

Relocation, 71, 131

Research, 85, 89

Rorschach, 125

Saini, Michael, 61, 129

Saposnek, Donald, 111

Self-Care, 60, 70, 107

Self-Represented, 11, 17, 52, 92, 121

Separation, 12, 18, 20, 24, 27, 32, 33, 56, 58, 59, 61,

67, 70, 90, 100, 116, 150, 158

Sexual Abuse, 80, 81, 116, 157, 158

ASK THE EXPERTS | 164

Shear, Leslie, 64

Shienvold, Arnold, 6

Simon, Robert, 82

Social Media, 75, 135

Special Needs Children, 94

Stahl, Philip, 7, 71

Starnes, Hugh, 11

Stepfamily, 51

Stephens, Doug, 160

Stress, 8, 18, 33, 37, 40, 53, 56, 70, 81, 95, 96, 107,

108, 126, 146, 158, 159

Sullivan, Matthew, 6, 59, 120

Supervised Visitation, 68

Tippins, Timothy, 47, 49

Todd, Leslie, 51, 107

Unbundle, 40, 146

Website, 37

Wittmann, Jeffrey, 118

Zollo, Nina, 10