RANDY K. OTTO AND JOHN F. EDENS THE COMPETENCE QUESTION

Mental health professionals typically assess the capacity of parents to care for and meet the needs of their children in two types of legal cases:

• divorce proceedings in which the parents contest custody, and

• abuse, neglect or termination of parental rights proceedings in which the state alleges that the parent is unable or unfit to care for the child (sometimes collectively described as dependency proceedings).

Although courts consider a variety of factors in divorce custody and dependency proceedings, the legal decision maker in both types of case is concerned with the behaviors and capacities of adults as child caretakers. Yet any attempt to define the parental characteristics relevant for these decisions, as well as the relevance of mental health professionals' evalua­tions, must begin by acknowledging the unruly nature of custody and dependency law. The strands of law referenced above often are not repre­sented by distinct bodies of law in a state's statutes, and different statutes within a state may produce similar custodial consequences. Further, the development of laws for dealing with the array of custody questions noted above often has not been uniform across states. Nevertheless, as is the case with all forensic evaluations, statutes and case opinions provide a starting point for describing the nature of child custody and parenting capacity questions that mental health professionals may be asked to address.

Abuse, Neglect, and Termination of Parental Rights

It was not until the early part of the 20th Century that a consensus emerged that child protection was the responsibility of the state (as opposed to private foundations and charities) (Myers, 1998). The state can respond to allegations of abuse and neglect via the criminal justice system (through prosecution of the alleged perpetrating parent or care taker) and the civil system, by way of dependency proceedings designed to protect the child and provide services and conditions necessary to remedy prob­lems that brought the family before the court.

Contemporary child maltreatment laws allow for state supervision of the child and family, temporary removal of the child for protective and rehabilitative purposes, and permanent removal and termination of parental rights (TPR) in the most extreme cases. Dependency cases first require a court's determination that some form of maltreatment (i.e., either abuse or neglect) has occurred. In these hearings the court attempts to identify (Melton et al., 1997; Barnum, 1997):

• the alleged abusive or neglectful behaviors that are said to have occurred

• any harm that resulted to the child

• the parent's capacities to care for and protect the child

• the risk for future harm, and

• prognosis for change and reunification through various interven­tions, if appropriate and necessary.

In addition, the breadth and vagueness of some child maltreatment laws (see Budd, 2001 and Azar et al., 1995 for further discussion) allow for con­sideration of indirect evidence concerning the parent's character and gen­eral "way of life" (Weisberg & Wald, 1984).

A finding of abuse or neglect is followed by a determination or dis­position. Chief among the questions at the disposition phase is whether the child's welfare is adequately protected by allowing continued resi­dence with the parents under supervision of social service agents, or whether temporary or permanent placement outside of the home is required. It is especially at this stage that the parent's qualities for ensur­ing the future welfare of the child are scrutinized by the court.

All states allow a court to sever completely the legal ties between parent and child under certain circumstances (Sales et al., 1982). Such dis­positions, however, represent a minority of all dependency proceedings. Herring (1992), citing data from a Michigan study, estimated that no more than 15% of all dependency cases result in termination of parental rights.

Divorce and Custody

While custody is contested in a minority of divorce proceedings involving children (Maccoby & Mnookin, 1992; Mclntosh & Prinz, 1993), the high rate of divorce in the United States makes clear that courts will be faced with issues of child custody in a fair number of cases. In contrast to dependency proceedings, the legal issue in cases of disputed custody in the context of divorce is not one of parental "unfitness" or "incompe­tence." Both parents are presumed "fit" or "competent," so the legal deci­sion maker in custody cases seeks to compare the two parents regarding their abilities to meet the "best interests" of their children.

Central to the custody decision-making process is the definition of, and distinction between, different types of custody (Melton et al., 1997; Otto, 2000; Schutz et al., 1989). State law typically makes reference to and distinguishes between decision-making authority for the children (referred to as legal custody or parental responsibility in some jurisdic­tions) and the issue of physical placement or residence of the children (referred to as residential or physical custody in some jurisdictions). The courts, therefore, must not only make rulings about the living arrange­ments and visitation schedule for the children post-divorce, but also about who will be involved in making decisions about them (Gunnoe & Braver, 2001).

Law and Current Practice

Legal Standards

ABUSE, NEGLECT, AND TERMINATION OF PARENTAL RIGHTS PROCEEDINGS. In English Common Law, the state's power to intervene between parents and their children was quite limited, and parents enjoyed essentially unbridled authority in their interactions with their children. Until this past century, children were considered property or chattel (typically of their fathers) and treated as such. Parents in 10th Century England had the authority to kill an unweaned child or sell a child under the age of seven into slavery (Foster & Freed, 1964). By the 17th Century, Common Law prohibited parents from killing their offspring, the state continued to have limited authority to intervene in matters of the family, and parents were not required by law to provide their children with basic necessities (McGough & Shindell, 1978).

With the development of the state's parents patriae power, however, the autonomy and control parents had with respect to their children was diminished, and the state gained the right to protect children from mal­treatment at the hands of their parents (McGough & Shindell, 1978; Custer, 1978). Children are no longer viewed as property and, although parents enjoy considerable autonomy and protection from the state with respect to child rearing matters, their power or authority is not absolute, and states have the right to protect children (see, e.g., Reppucci & Crosby, 1993; Griswold r. Connecticut, 1965; Meyer r. Nebraska, 1923; Prince r. Massachusetts, 1944; Quilloin r. Walcott, 1978; Santosky r. Kramer, 1982; Stanley r.

Although all states allow for state intervention in cases of child abuse or neglect, definitions of abuse and neglect vary. Some definitions are inherently value laden and culturally determined and, consequently, states vary with respect to the exemptions or exceptions they consider (e.g., on issues related to corporal punishment, refusal of medical services on religious grounds, poverty as a cause of failure to provide) (National Clearinghouse on Child Abuse and Neglect Information, 2001a). Sexual abuse of a child by a parent or other care taker is also typically identified as a basis for state intervention, although this form of maltreatment, as compared to physical abuse or neglect, is more likely to be processed through the criminal justice system (Daro, 1996; Melton, 1995). Emotional abuse or neglect, sometimes referred to as psychological maltreatment, is considered by some to be the most controversial of grounds for state inter­vention since there is the least consensus about definitions and criteria, and it is arguably the most value-laden form of maltreatment (Melton et al., 1997).

As noted above, all states authorize family or juvenile courts to terminate parental rights without agreement or consent by the parents (Sales et al., 1982). Until the latter part of the 20th Century, courts often used the mere presence of certain parental behaviors or characteristics as sufficient grounds for a termination decision. Thus, parents who were known to have been adulterous or who had been diagnosed as mentally ill or mentally disabled might, on these bases alone, be declared incompe­tent or unfit, thereby losing all parental rights (Dyer, 1999; Melton et al., 1997).

Although the law regarding abuse and neglect of children is vague and varied with the exception of some areas, there appears to be more specificity and consistency across jurisdictions in the law regarding termi­nation of parental rights. This may reflect, in part, the state's recognition of the more serious consequences associated with terminations proceed­ings (i.e., permanent removal of parental rights and contact). Concerns related to value laden concepts and the lack of a consensus regarding minimal parenting abilities (see above) also apply in TPR proceedings, and may be more of a concern, given the grave implications of such legal decisions (Melton et al., 1997).

Predicate conditions necessary for a termination of parental rights are typically identified by statute, although some states simply use broader and more general language (National Clearinghouse on Child Abuse and Neglect Information, 2001b). Termination of parental rights laws generally require that the petitioner seeking termination of parental rights (the state) prove, by clear and convincing evidence (Santosky v. Kramer, 1982), that the parent is unfit in some way and cannot become minimally fit within a specified period of time. Many states also require a showing that the peti­tioner prove that the state child welfare agency made "reasonable efforts" to reunify the parent and child prior to seeking termination of parental rights (Herring, 1992). Although there is variability between jurisdictions, a number of conditions or circumstances serve as the predicate for termination of parental rights in the majority of states (National Clearinghouse on Child Abuse and Neglect Information, 2001b; Feller et al., 1992; Neal, 1989 cited in Dyer, 1999):

• parental incapacity to care for the child as a result of mental disor­der or substance abuse,

• abandonment (e.g., failure to visit or communicate, abandonment of an infant, failure to provide a home),

• occurrence of extreme or chronic abuse or neglect,

• failure of the parent to improve in response to agency interven­tions, and

• long term incarceration.

By way of the Adoption and Safe Families Act of 1997 and related legislation, congress provided financial incentives for states to restructure their child welfare systems. The Act, which has been described as empha­sizing the health and safety of the child while de-emphasizing the rights of biological parents (Venier, 2000), uses funding mechanisms to encourage states to minimize the amount of time children spend in foster care by:

• shortening the length of time before a state seeks to terminate a parent's rights

• identifying exceptions to the general requirement that a state need make a showing that reasonable effort to reunify the family were made (e.g., the parent has committed murder or manslaughter of another child of the parent), and

• increasing rates of adoption (National Clearinghouse on Child Abuse and Neglect Information, 2001b).

Recent appellate cases reflect a movement to ensure that functional abilities of parents (which may or may not be related to conditions such as mental disorder, mental retardation or substance abuse) are the basis for making decisions about termination of parents' rights rather than simply the presence of various conditions (Melton et al., 1997). In Davis v. Davis (1977), for example, the court warned that an adulterous parent is not pre­sumptively unfit for custody of a child; the parent's behavior is relevant, but its weight depends on the extent to which it is likely to affect the child's welfare in the particular case in question. Once it is clear that the child's welfare is substantially threatened by the parent's immorality, cus­tody may be terminated; but it is the threat to the child, not the parent's immorality per se, that justifies the finding of unfitness and termination of custody. Many courts have ruled similarly concerning parents' past

or present mental illness, retardation or other disabilities (e.g., In re the Custody of a Minor, 1990; K.N. v. State, 1993; In re Kelly, 1992), and with regard to sexual orientation (Brownstone, 1980). A corollary of this con­ceptualization is that the fitness of the parent is to be determined not solely on the basis of the parent's past behavior (although often this will be relevant), but on the basis of judgments concerning the parent's likely future behavior and its influence on the child's growth and development.

Most states consider the child's best interests to be paramount in TPR proceedings, with consideration of the child's health, safety, and well being informing this decision (Feller et al., 1992; National Clearinghouse on Child Abuse and Neglect Information, 2001b). The precise wording, however, varies across states, placing somewhat different emphasis on the role of children's best interest in relation to other considerations. In general, these variations create three kinds of standards:

• the jurisdictional standard, reflecting a balanced appreciation of both parental rights and the best interests of the child

• the parental rights standard, directing that the child's well being is relevant but that the parent's right to parent is paramount absent a showing of unfitness, and

• the psychological parent standard, in which termination of parental rights is only allowed when the biological parents of the child have deprived the child in a way that threatens normal development.

Once parental rights have been severed, the parent enjoys no right to con­tact, visitation or decision making, and adoption of the child can occur without the parent's consent (Feller et al., 1992).

Because of the court's desire to keep families unified and remedy any deficits that lead to abuse or neglect in maltreatment cases, and because of the predicate requirement of a finding of harm and "parental unfitness" in TPR cases (with the exception of some cases, see above for a discus­sion), evaluations in abuse, neglect and TPR proceedings are focused on minimal parenting competence or adequacy rather than identifying ideal circumstances for the child. Of course, such a process is complicated by the fact that there is no universally accepted standard for "minimal par­enting competence" (Azar & Benjet, 1994; Azar, Benjet, Fuhrmann, & Cavallero, 1995; Budd, 2001).

divorce custody proceedings. Courts did not need to concern themselves with questions of custody and parenting fitness until this cen­tury since, at Common Law, children were considered property and, in cases of divorce, ownership of all property was enjoyed by the husband­father (Jacob, 1988; Sorenson & Goldman, 1990; Wyer, Gaylord, & Grove, 1987). This right may have been partly embedded in beliefs that fathers were better parents. In its review of child custody law, the court in Ex Parte Devine (1981) quoted a Mississippi Chief Justice who offered in an 1842 case:

The authority of the father is superior to that of the mother. It is the doctrine of all civilized nations. It is according to the revealed law and the law of nature, and it prevails even with the wandering savage, who has received none of the lights of civilization. (p. 688)

But the law began to change in the late 1800s, likely as a result of two factors. First, legal authorities explicitly acknowledged new conceptual­izations of the needs of children, An example of the legal system's stated rationale for reconstructing the primary legal consideration in divorce custody cases is provided below:

Right to custody of the child will depend mainly upon the question of whether such custody will promote the welfare and the interest of such child.... Above all things, [this] is the paramount consideration. (Chapskyv. Wood, 1881, p. 321; see also Finlay v. Finlay, 1925)

Also identified as an explanation of the shift from father's rights has been the transition of children at the turn of the century from economic assets who could earn income, to economic liabilities who were protected from the workforce via compulsory education laws.

From the mid-19th Century onward women gained increasing rights (Mason, 1994), and by the end of the century we see development and for­mal acknowledgement of the "tender years" doctrine, which held that mothers were uniquely qualified to rear children (Ex Parte Devine, 1981; Lyman & Roberts, 1985). Reflecting the common belief about the unique contributions and nature of women as parents at the time, one court wrote: "there is but a twilight zone between a mother's love and the atmosphere of heaven" (Tuter v. Tuter, 1938, p. 205). Thus, the legal pre­sumption was that children's best interests were served by granting cus­tody of them to their mother in cases of divorce (Wyer et al., 1987). Although the presumption that a particular mother was best suited to meet a child's needs could be overcome in a particular case by showing that the mother was unfit in some way, this rarely occurred.

The tender years doctrine controlled custody decision-making until the 1960s when significant changes in family law occurred (Hall, Pulver, & Cooley, 1996; Mason, 1994). With shifting conceptualizations of sex roles and movement to '"no fault" divorce, the tender years doctrine was challenged as sexist and lacking in logic (Horne, 1993). One judge offered the following challenge to the tender years doctrine and its associated presumptions: "What a mother's care means to her children has been so much romanticized and poeticized that its reality and its substance have sometimes been lost in the flowers of rhetoric. Not all mothers can lay claim to such eulogy" (Stanfield V. Stanfield, 1968, p. 692).

Because women were no longer considered to make better parents as a function of innate abilities, the tender years doctrine was replaced with the best interests of the child standard, which has been adopted by all United States jurisdictions (Hall, Pulver, & Cooley, 1996; Rohman, Sales, & Lou, 1987). Despite rejection of the tender years doctrine, mothers con­tinue to be granted custody in 85% to 90% of all divorce custody cases (Victor & Winkler, 1977; US Bureau of the Census, 1989). The reasons for this are unclear. This circumstance may reflect (1) that mothers continue to be the primary parent in the majority families despite changing social conceptions, (2) biases of the courts despite changes in law, (3) a reluc­tance for fathers to try to gain custody because they perceive the system to be biased to favor mothers as caregivers, or (4) some combina­tion of the above (Home, 1993; Mnookin, Maccoby, Albiston, & Depner, 1990; Polikoff, 1983).

With the "best interests" standard came greater judicial discretion in deciding custody based on the unique characteristics of each child and a child's potential caretakers. The complexity of factors and circumstances to be considered anew in each case, without formulas or clear decision rules, is cited as contributing to idiosyncratic and inconsistent decision making (Charlow, 1994; Crosby-Currie, 1996; Mnookin, 1975; Pearson & Luchesi-Ring, 1983; Weinstein, 1997), leading judges to look for assistance from mental health professionals in the decision process (Feller et al., 1992; Wald, 1976). Thus, courts have sought and accepted the assistance of mental health professionals in divorce custody cases, especially for their expertise in the evaluation of children's needs, parents' care taking quali­ties, and description of their implications for the child's welfare. This has continued despite questions offered by mental health and legal commen­tators alike regarding whether mental health professionals have true expertise to offer in such cases (see, e.g., O'Donahue & Bradley, 1999; Okpaku, 1976; see below for further discussion).

Although it is the "best interests" standard that has prevailed for purposes of custody decision making in cases of divorce, alternative stan­dards have been offered (Melton et al., 1997). The "least detrimental alter­native" standard is based on theoretical arguments of Goldstein, Freud, and Solnit (1973) and focuses the custody decision on determining the child's "psychological parent," who then is granted unilateral decision making authority with respect to the child. Melton et al. (1997) also describe the "primary-caretaker" standard, in which custody is granted to that parent who has been primarily responsible for care and nurturance of the child, an arguably more objective and provable matter. Finally, Scott (1992) has proposed the "approximation standard," which dictates that custody arrangements following divorce should approximate, to the extent possible, child rearing arrangements in existence prior to the marital separation and dissolution.

While the "best interests" standard reveals in whose interests custody-related decisions are to be made, it provides little direction regarding the factors or criteria that should be considered when determin­ing a child's interests (Gould, 1998; Otto, 2000; Home, 1993). Consequently, the large majority of states have operationalized and defined the best inter­ests standard legislatively. Many state's codes are based in part on the cus­tody section of the Uniform Marriage and Divorce Act (1979):

• The wishes of the child's parent or parents as to his custody

• The wishes of the child as to his custodian

• The interaction and interrelationship of the child and his parent or parents, his siblings, and any other person who may significantly affect the child's best interests

• The child's adjustment to his home, school, and community, and

• The mental and physical health of all individuals involved.

Michigan's Child Custody Act (Michigan Compiled Laws Service, 2001) has served as a model for many state legislatures in their attempts to identify factors that the legal decision-maker and custody evaluator are to consider with respect to determining children's best interests. Michigan's law, like that of many states, identifies both psychological factors (e.g., the "love, affection and other emotional ties existing between the parties involved and the child", the "mental and physical health of the parties", "the capacity and disposition of the parties involved to give the child love, affection, and guidance; and to continue the education and raising of the child involved in his or her religion or creed, if any", "domestic vio­lence, regardless of whether the violence was directed against or wit­nesses by the child") and a variety of non-psychological factors (e.g., "moral fitness of the parties involved") that are to be considered by the court, as well as case specific factors that might not have been anticipated by the legislature (i.e., "any other factor considered by the court to be rel­evant to a particular child custody dispute"). How the child's best inter­ests are operationalized varies from state to state. In their review of state child custody statutes in place in 1993, Hall, Pulver, and Cooley (1996) concluded that "best interests" criteria varied considerably across the 50 states. Schutz et al. (1989), however, were able to identify general consistencies across the various state statutes:

For children—

• Age and sex

• Adjustment to current and prior environments, including the length of time in each

• History of child abuse/victimization

• Educational needs

• Special mental health or medical care

• Wishes or desires regarding placement, if of sufficient age

• Effects of separation of siblings

For parents—

• History of spouse abuse

• Economic status and stability

• Wishes and desires regarding placement and custody

• Mental and physical health

• Substance abuse

• Level of hostility

• Flexibility

• Parenting skills

• Care taking involvement before and after separation

Although the legislatures' attempts to operationalize the best inter­ests standards provide custody evaluators and legal decision-makers with some direction, how decisions are to be made remains unclear. Most apparent is that, when considering issues of custody and placement of children, the relative importance of the various factors identified by statute and the weight they are to be accorded go unstated. This likely reflects acknowledgement by both the judiciary and mental health profes­sionals that, because parents and children in each family are very differ­ent, questions of custody and what is in the best interests of children can vary significantly from case to case. Thus, a concretized formula is not appropriate, and courts and legislators have chosen to resist the develop­ment of rigid rules for deciding custody (Schutz et al., 1989).

The statutes and the history of their application reflect the highly dis­cretionary use of the factors in divorce custody decisions (Pearson & Luchesi-Ring, 1983). No particular fact (other than a finding of unfitness or incompetence as defined by standards for termination of parental rights) automatically disqualifies a parent as a custodian. No factor is construed per se as more important than another; different factors may be given more or less weight by the fact finder in different cases. Further, the court may consider any other factors that are not named in statutes, as long as they can be construed as relevant for the child's welfare. Many states have adopted joint custody as a legal option (i.e., both parents retain equal, shared responsibility and control for a child's upbringing), and about half the states have legislated joint custody as a preferred arrangement (Schutz et al., 1989). The latter states presume that joint custody is the best outcome unless individual circumstances suggest otherwise.

Legal Process

ABUSE, NEGLECT AND TERMINATION OF PARENTAL RIGHTS PROCEEDINGS. Although all states have in place a government system to protect children from abuse and neglect, the child protection process varies considerably. Additionally, within a particular jurisdiction the legal standards can vary across various parts of the dependency process.

A detailed discussion of the child protection process is beyond the scope of this chapter (see Feller et al., 1992; Myers, 1990; or Melton et al., 1997, for a more in-depth coverage). In brief, the first decision point in child protection proceedings occurs in response to an allegation of abuse or neglect. After contact with or screening by a child protective services worker an initial decision is made regarding the child's placement. The child may remain in the home or be removed from the home on an emer­gency basis, depending on various factors including the likelihood of harm to the child, the parent's or other caretaker's willingness and ability to protect the child, and availability of alternative living arrangements.

Once a child is taken from the parents and placed in emergency pro­tective custody, the protective services agency must immediately initiate proceedings in dependency court. Even in cases where the child remains with his or her parents, proceedings will be initiated to determine whether the child is "dependent" (i.e., has been subjected to abuse or neg­lect) and falls under its jurisdiction as a result. Upon adjudicating a child dependent, the court may order the parents and child to undergo evalua­tions and participate in treatment services, with the intention of remedy­ing any deficits and problems that resulted in the dependency adjudication (Caufield & Horowitz, 1987; Feller et al., 1992). In cases where the child has been removed from the home, the ultimate goal is returning the child to the parents' care (reunification). If it is determined that the parent presents an unacceptable risk of harm to the child (as a function of the parents' past behavior, the parent's inability to learn skills necessary for appropriate care taking, or the parent's failure to comply with orders of the court regarding intervention and treatment), the state can seek to terminate the parent's parental rights.

Although there is variability across jurisdictions, different standards of proof are required at different stages in the dependency process (Feller et al., 1992). While probable cause may be all that is required for emer­gency removal from the home at a subsequent hearing, a slightly higher standard of proof, "preponderance of the evidence," typically will be required at adjudicatory and dispositional hearings. Although Sales et al. (1982) found that many states employed that same standard in termina­tion of parental rights cases, recent years have seen the standard for TPR determinations raised to "clear and convincing evidence" (Dyer, 1999).

In dependency cases, mental health professionals may be called on to evaluate the child and/or parent and engage in one of four assessment activities in the context of these evaluations (Barnum, 1997):

• determine whether abuse occurred (potentially the most problem­atic and controversial task)

• describe any harm that has resulted to the child as a result of alleged or proven abuse or neglect

• describe the parent's care taking capacities, and

• offer a prognosis with recommendations for treatment and interventions.

Very few states provide procedures for mental health evaluations to determine the mental status of parents alleged to be unfit, or to examine other factors that might be related to parents' child-rearing capacities. Most statutes make some provision for legal counsel for the parent and for the child (Dyer, 1999). The actual frequency with which courts request evaluations and legal representation, however, has not been documented.

divorce custody proceedings. It is beyond the scope of this discus­sion to detail the circumstances and legal requirements associated with the appearance of two parents before a juvenile or family court to contend for a child's custody (see, e.g., Goldzband, 1982; Group for the Advancement of Psychiatry, 1980; Schutz et al., 1989). Many cases involve parents who are already in substantial agreement on custody arrange­ments, whereas others come prepared for battle, either adamantly or with ambivalence. Jurisdictional law or policy may have required that the par­ties attempt to negotiate a settlement of their differences concerning cus­tody, reserving adversarial resolution for those cases in which negotiation has failed (Elrod & Spector, 1998). Generally, both parents will have legal counsel, and most jurisdictions now provide for separate representation of the child by a guardian ad litem.

Mental health professionals may be asked by a parent's attorney to evaluate one or both parents and the children whose custody is in ques­tion. Courts sometimes must intervene to order the parent who is the cur­rent custodian to cooperate with the other parent's request for access to the children or the parent him or herself. Generally, courts are authorized to appoint mental health professionals to examine any of the parties involved.

Information available to the judge in a divorce custody proceeding might include not only the arguments and evidence offered by legal coun­sel at the custody hearing, but also the report of the court's mental health examiner (whose findings generally will be presented at the hearing), records and investigations of social service agencies or probation depart­ments, and the results of the judge's own conference with the children to explore their custody preferences or apparent attachments to the parents.

Custody decisions may range from joint custody, in which the par­ents share the responsibility for all matters of the child's welfare, to a cus­tody arrangement that invests one of the parents with total authority and bars the other parent from contact with the child. Between these two extremes are a variety of possible dispositions involving degrees of parental authority, distinctions between legal and physical custody, enforced arrangements concerning the child's access to both parents, financial support arrangements, and custody arrangements that place some of the children with one parent and some with the other.

The legal process for divorce custody arrangements often does not end with the custody decision. Courts may respond to the petitions of social service agencies or parents concerning failure of a parent to abide by certain court-ordered arrangements (e.g., visitation requirements, sup­port payments). Further, issues related to custody may be revisited as a result of changes in the circumstances of parents or children. For example, parents who are not awarded custody may claim changes in their own cir­cumstances or those of the custodial parent, which may justify reconsider­ation of the custody issue (e.g., involvement with a significant other that presents a risk to the child, successful treatment of a mental disorder or substance abuse problem). Alternatively or in addition, either parent may be accused of maltreatment or incapacity manifested subsequent to the original custody decision and a change in custody conditions requested. These circumstances might require reevaluation by a mental health pro­fessional and a hearing on the need to alter the original divorce custody decision.

Competence Assessment: Current Practice

ABUSE, NEGLECT, AND TERMINATION OF PARENTAL RIGHTS. The mental health professional's evaluation in the context of abuse, neglect, and ter­mination of parental rights will be shaped in part by the law controlling such issues. These evaluations, however, are also shaped by relevant prac­tice guidelines and standards. Although no formal practice standards or guidelines have been developed for conducting evaluations specifically for abuse, neglect and TPR proceedings, a number of organizations have promulgated more general guidelines that go some distance toward iden­tifying a standard for dependency evaluations.

The Guidelines for Psychological Evaluations in Child Protection Matters published by the American Psychological Association in 1998 "promote proficiency using psychological expertise in conducting psychological evaluations in child protection matters" (American Psychological Association, Committee in processional Practice and Standards, 1998, p. 2). The guidelines are advisory in nature and are focused on the format or process of the evaluation more than on substance. They advise psychologists conducting such evaluations to:

• seek to provide the legal decision maker with helpful information

• place the interests of the child first

• remain objective, impartial and unbiased

• only conduct assessments that they are qualified to conduct

• avoid multiple roles and relationships with parties

• determine the nature and scope of the evaluation on a case by case basis

• obtain informed consent and assent as appropriate, including notification of limits of confidentiality

• use multiple methods of data gathering

• offer clinical opinions that are appropriately supported by assess­ment data

• clarify financial arrangements in advance, and

• maintain adequate records.

The American Professional Society on the Abuse of Children (APSAC) published Practice Guidelines for Psychosocial Evaluation of Suspected Psychological Maltreatment of Children and Adolescents (APSAC, 1996). Like the APA guidelines, the APSAC guidelines focus heavily on form and include sections devoted to confidentiality and privilege, informed consent, competence of examiners, report writing, and testify­ing. In addition, however, the guidelines discuss more substantive issues such as prevalence, forms, and impact of abuse and neglect; assessment techniques; impact of child development in assessment; and sources of information typically utilized. aPsAC also has published Practice Guidelines for Psychosocial Evaluation of Suspected Sexual Abuse in Children (APSAC, 1996). Similar to the more general maltreatment evaluation guidelines, these sexual abuse evaluation guidelines address both format and substantive evaluation issues.

Finally, the American Academy of Child and Adolescent Psychiatry (1997) published the Practice Parameters for the Forensic Evaluation of Children and Adolescents Who May Have Been Physically or Sexually Abused. These guidelines discuss both the format and process of the evaluation as well as substantive issues related to evaluation in cases of child abuse, neglect, and maltreatment. The "Forensic Issues" section addresses matters such as role definition, notification and informed consent, confidentiality and privilege, the need for unbiased and objective work, competence and acknowledgement of professional limitations, and knowledge of relevant law. The "Forensic Evaluation" section is devoted to substantive issues including definitions, clinical presentation, and epidemiology of abuse and neglect, and various assessment techniques.

There is little literature available regarding the practice of mental health professionals who evaluate parents in the context of abuse and neglect proceedings. Some authorities (Azar et al., 1995; Budd, 2001; Jacobsen, Miller, & Kirkwood, 1997; Weinstein, 1997) have suggested that mental health professionals should proceed cautiously when offering information about parents to legal decision makers, in light of:

• the lack of universal agreement about minimal parenting compe­tencies

• the absence of structured instruments or assessment formats directly relevant to these cases

• problems inherent to the prediction of low base rate behaviors such as serious violence, and

• cultural differences in parenting styles and values

Articles written for clinicians provide some consensus regarding what areas should be addressed in parenting capacity evaluations. Factors fre­quently mentioned include the nature of the alleged abuse and neglect, par­ents' mental status, parenting skills and abilities, the child's needs, compliance with and success of prior interventions, consideration of cultural issues, and current and anticipated living environments (Azar et al., 1995; Budd & Holdsworth, 1996; Dyer, 1999; Kuehnle, Coulter, & Firestone, 2000).

Of course, what authorities offer as appropriate practice and what mental health professionals do in such cases are separate issues. Although select appellate cases reveal highly questionable practice in some TPR cases, there is no reason to believe that these cases reflect practice in gen­eral. For example, the primary evidence for mental retardation of a parent in one case involving termination consisted of IQ test results obtained more than five years earlier when the individual was in high school (State V. McDonald, 1972), In another case, the examiner equated "mental retardation" with a "personality defect" and therefore as "mental illness" (In re Rathburn 1970). Although these cases tell us little about general prac­tice in termination assessments, they warn us that we must not rely on courts to set the standards for the quality or type of assessment methods that we use, because at least some courts will accept data obtained or interpreted in ways that fall well below professional standards of practice.

In the only study to examine the evaluations completed by mental health professionals in maltreatment cases, Budd, Poindexter, Felix, and Naik-Polan (2001) randomly selected 190 evaluations of parents who were involved in abuse and neglect cases in Cook County (Chicago). A total of 84 mental health professionals completed the 190 evaluations; over half (54%) were psychologists, 15% were psychiatrists, and 21% were masters level professionals. Evaluations were categorized as psychologi­cal (typically evaluations involving intellectual and personality or psy­chopathology assessment conducted by psychologists; n = 103, 54%), psychiatric (clinical interviews and mental status examinations conducted by psychiatrists; n = 25, 13%), bonding-focused (quality of the parent­child relationship and or care giving skills; n = 21, 11%), substance abuse (focused on substance abuse history and typically including drug or alco­hol testing; n = 15, 8%), parenting assessment team (assessment of the parent and child conducted by a team of mental health professionals; n = 18, 9%), and other/undefined (n = 8, 4%).

With the exception of evaluations completed by a parent assessment team, all types of evaluations were completed, on average, in one session, and typically in a court clinic or professional office. Parent assessment team evaluations averaged nearly five sessions per assessment and typi­cally included both clinic contact and home visits. Various third party sources of information were cited in the evaluations (e.g., collateral informants, child, therapist), and reports completed by parent evaluation teams accessed and made use of third party information more frequently than other types of evaluation. A minority of reports included behavioral observations of parent-child interactions, and descriptions of the parents' child-rearing abilities or parent-child relationships were often lacking. The majority of evaluations completed by psychologists included psycho­logical tests, with measures of personality or psychopathology and cogni- tive/intellectual functioning being most frequently employed.

Although most evaluations identified one or more general purposes (e.g., to assess the parent's cognitive functioning, to assess the nature and quality of the parent-child relationship), far fewer described a more spe­cific purpose. Only evaluations conducted by mental health professionals working in the court clinic identified a specific forensic-legal issue that the evaluation was designed around. The presenting problem or issue that led to the referral and evaluation was identified in 5% to 41% of the evaluations, depending on the assessment provider group. Identification of the options under consideration occurred in 13% to 67% of the evalua­tions, depending on the assessment provider group.

Considering the results overall, Budd et al. (2001) concluded that "these shortcomings render many clinical assessment of parents inadequate to serve as a basis for child protection decisions" (p. 105). These somewhat discouraging results are important because so little is known empirically about evaluations of this type. Yet the investigators appropriately note that their findings were based on assessments completed in one judicial circuit, which may or may not reflect forensic practice in other settings.

divorce custody proceedings. Child custody evaluations will be shaped in part by the law controlling child custody decision-making in the jurisdiction in which he or she practices. In addition, three national organizations (and some state organizations) have promulgated custody evaluation guidelines (see Otto, Buffington, & Edens, in press, for further discussion of the strengths and weaknesses of these practice guidelines).

Guidelines for Child Custody Evaluations in Divorce Proceedings, pub­lished by the American Psychological Association (1994, APA), focus pri­marily on format and process (e.g., the goal of the evaluation, the role and orientation of the examiner, the competence and ability of the examiner, and procedural matters related to confidentiality, informed consent, record keeping, financial arrangements, and use and interpretation of data). Like the APA Guidelines, the Model Standards of Practice for Child Custody Evaluations of the Association of Family and Conciliation Courts (undated) (AFCC) offer direction to the evaluator regarding role defini­tion, structuring the evaluation process, and competence. They are more substantive than the APA guidelines in that they also discuss areas of inquiry in the evaluation process (e.g., quality of the relationships between the parents and the child, quality of the relationships between the parents, domestic violence history, psychological adjustment of the parents). Thus, the AFCC guidelines provide more direction to the custody evaluator. The Practice Parameters of Child Custody Evaluation published by the American Academy of Child and Adolescent Psychiatry (1994) (AACAP) include sections devoted to both the process and substance of the evaluation and is the most detailed of the three. It identi­fies areas of inquiry for the examiner to address, as well as evaluation tech­niques and some special topics (e.g., parents' sexual orientation, grandparents' rights, child sexual abuse allegations, reproductive technol­ogy issues).

A number of investigators have surveyed mental health professionals who conduct child custody evaluations. Keilin and Bloom (1986) described the practices of 82 custody evaluators, the majority of whom were psychologists (78%). Respondents were queried about how they were involved in cases, evaluation techniques they employed, and their impressions of various custody decision making criteria or factors. A large majority (91%) indicated a preference to be retained by the attorneys of both parents or appointed by the court, yet this was the nature of their involvement in only about one-half of the cases in which they were involved. They were retained by the attorney representing one of the par­ents in almost all of the remaining cases.

There was a fair degree of consensus regarding the mechanics of the evaluation at the most general level. Virtually all respondents reported interviewing each parent and the children. A significant numbers reported using psychological testing with adults (76%) and children (74%), and observing parent-child interactions (69%). Half of the respondents reported that they observed interactions between the two parents, and slightly less than one-third reported engaging in home visits and school visits. Interviews of informed third parties (e.g., friends and relatives) were conducted by approximately one-half of the evaluators.

There was less consensus regarding the use of psychological testing. No single measure was used by a majority of the respondents when assessing children. Intelligence tests were the most frequently used tests, with almost one-half using some measure of intelligence in the majority (85%) of their cases. The next most frequently used instruments were the Thematic Apperception Test or the Children's Apperception Test (39% of the respondents reporting use of these measures in most of their evalua­tions), then miscellaneous projective drawings, the Rorschach Inkblot Technique, and the Bender-Gestalt Visual Motor Test. For assessing par­ents, respondents identified the Minnesota Multiphasic Personality Inventory (MMPI) as the most commonly used assessment technique with adults (70% of the examiners in almost all of their cases), followed by the Rorschach Inkblot Technique (42%) and the Thematic Apperception Test (38%).

Updating Keilin and Bloom's survey, Ackerman and Ackerman (1997) obtained usable responses from 201 of the 800 doctoral level psychologists to whom they sent surveys regarding their child custody evaluation practices. Similar to the findings of Keilin and Bloom, almost all of the respondents reported a preference for retention by both parties' attorneys or court appointment. Ackerman and Ackerman noted that their respondents reported spending considerably greater periods of time reviewing adjunctive materials and writing reports than did those sur­veyed by Keilin and Bloom 10 years earlier. Consistent with Keilin and Bloom's findings, however, intelligence tests and projective measures continued to be the instruments most frequently employed with children, and the MMPI/MMPI-2 remained the most frequently used assessment instrument for parents, followed by the Rorschach.

Many custody evaluators also reported using assessment instru­ments with children that were developed specifically for use in custody contexts. Over one-third of the respondents reported using the Bricklin Perceptual Scales (Bricklin, 1990a), and 16% reported frequent use of the Perceptions OfRelationship Test (Bricklin, 1989).

Fewer respondents reported using specific custody measures designed for use with families or adults. Only 11% of the psychologists reported using the Ackerman-Schoendorf Parent Evaluation for Custody Test (Ackerman & Schoendorf, 1992), but those who used it did so in almost all (89%) cases. The only other custody-specific measures endorsed were the Parent Awareness of Skills Survey (Bricklin, 1990b; PASS) and the Custody Quotient (Gordon & Peek, 1989), both used by less than 10% of the respondents.

Finally, findings similar to those obtained by Keilin and Bloom (1986) and Ackerman and Ackerman (1997) were reported by Bow and Quinnell (2001), who received usable surveys from 198 of 563 psychologists who were identified as conducting child custody evaluations. Involvement as a custody evaluator came via court appointment in the majority (84%) of cases. The respondents reported spending between 24.5 and 28.5 hours per evaluation, on average. Almost all respondents reported interviewing each parent and the children. Significant numbers of evaluators reported employing psychological testing with adults (91%) and children (61%), and observing parent-child interactions (92%). One third of the respondents reported making home visits, whereas the majority (78%) indicated that they made some contact with the children's teachers. Interviews of informed third parties (e.g., family physician, pediatrician, neighbors, friends, relatives) were employed by approximately one-half of the respon­dents, whereas virtually all reported relying on adjunctive documents. The authors did not report data regarding specific test selection and use.

In addition to the above, a number of commentators have offered sug­gestions for comprehensive child custody evaluations (see, e.g., Bricklin, 1995; Gould, 1998; Otto, 2000; Melton et al., 1997; Stahl, 1994). There appears to be a consensus among these authorities that custody evalua­tions in the context of divorce should describe:

• the child's cognitive, emotional, social and academic needs and abilities,

• the parents' understanding of the child's needs and abilities to meet those needs,

• any factors that may limit a parent's ability to understand or meet a child's needs,

• the nature of the relationship between the child and each parent,

• the relationship between the parents as it affects their interactions with the child, and

• the custodial arrangement proposed by each parent and the possi­ble effects of the child's functioning.

A review of these same commentators, however, does not produce a consensus regarding evaluation techniques that should be employed to provide the information noted above, other than the general agreement that interviews with all relevant parties are necessary.

Many commentators have expressed skepticism regarding the value of forensic examinations in divorce custody cases. Brodzinsky (1993) and Grisso (1984) raised concerns about the specific evaluation techniques employed by mental health professionals in child custody evaluations, while other have asserted that there is little evidence for the validity of professionals' predictions concerning which arrangement will best suit children's needs in custody cases (e.g., Halleck, 1980; Melton et al., 1997; Mnookin, 1975; ODonahue & Bradley, 1999; Okpaku, 1976). Critics have been concerned especially about examiners' use of theoretical assump­tions to speculate about outcomes of various custody arrangements, with­out empirical support for the speculations and sometimes without clear reference to data specific to the individual case. Goldzband (1982) offered instructive examples of testimony that substitutes untested theory and assumptions (e.g., preference for maternal care in "tender years," the con­cept of the "psychological parent") for data and careful scrutiny of a case's unique circumstances.

Although Melton (1999) has begrudgingly acknowledged that mental health professionals may have something to offer the legal decision maker in cases of contested custody, he and his colleagues (Melton et al., 1997) asserted that mental health professionals "may have little expertise that is directly relevant to custody disputes" and concluded that "there is probably no forensic question on which overreaching by mental health professionals has been so common and so egregious" (pp. 483-484). Perhaps the strongest criticism has been offered by ODonahue and Bradley (1999), who questioned whether mental health professionals enjoy specialized knowledge about custody relevant issues. They characterized custody evaluations as "no more than educated guesswork, or worse, recommen­dations based on personal opinions and values," and called for a morato­rium on psychologists' participation in custody evaluations (p. 321). This, of course, has not occurred.

From Legal Standard to Forensic Assessment

Functional Component

It is clear from the preceding review that the legal concepts of parental competency (in abuse, neglect, and TPR cases) and parenting capacity (in divorce custody cases) refer to the functional abilities of care­takers and potential caretakers. Parents' characteristics and abilities are not the only factors considered in courts' deliberations in dependency or custody proceedings (see "Legal Standard"), but they are among the most important factors.

Courts sometimes have used a parent's psychiatric diagnosis as the primary or sole factor for inferring impaired or inadequate parenting abil­ity. This practice ignores current legal precedent requiring consideration of functional consequences of mental disabilities, rather than presuming incapacity on the basis of mental disability alone. Thus, forensic assess­ments that describe only diagnoses, personality characteristics, or general intellectual capacities of parents and fail to assess the caretaker's child­rearing abilities are of little value (Budd, 2001; Gould & stahl, 2000). Diagnoses may be relevant, but the competency concept requires a description of what the caretaker understands, believes, knows, does, and is capable of doing by way of parenting (Budd, 2001; Stahl, 1994).

The examiner wishing to fulfill this objective must have a notion of functional ability concepts or behavioral dimensions constituting the rele­vant domain of parenting abilities. Parenting abilities that are relevant to the court's decisions in cases of dependency and custody have been iden­tified in statutes and case opinions. Generally the abilities mentioned are vague and undifferentiated or cover only a narrow range. Further, differ­ent legal sources use different terminology to refer to relevant parenting abilities, making it difficult to determine whether they are referring to the same or different dimensions of parenting.

In contrast to the law's more general construction of parenting, there is a greater appreciation by mental health professionals that parenting tasks are affected by the child's needs and development (e.g., Lerner et al., 1995; Stahl, 1994). For example, Clausen (1968, p. 41) provided a list of parenting tasks derived from a consideration of children's developmental needs:

• provision of nurturance and physical care,

• training and channeling of physiological needs in toilet training, weaning, provision of solid foods,

• teaching and skill-training in language, perceptual skills, physical skills, self care skills in order to facilitate care and insure safety;

• orienting the child to his immediate world of kin, neighborhood, community, and society, and to his own feelings,

• transmitting cultural and subcultural goals and values and moti­vating the child to accept them for his own,

• promoting interpersonal skills, motives, and modes of feeling and behaving in relation to others, and

• guiding, correcting, and helping the child to formulate his own goals and plan his own activities.

Inhisdiscussionofmaltreatmentevaluations, Barnum (1997) identified two basic responsibilities of parents: advocacy/protection and socializa­tion. Advocacy and protection primarily involves insuring the child's safety in his or her interactions in the outside world. Socialization is broadly conceived by Barnum and includes teaching a child in three fun­damental areas: cognitive, behavioral, and emotional. Azar et al. (1998) outlined five broad domains of parenting that may be related to risk for abuse and neglect: parenting skills, social cognitive skills, self control skills, stress management skills, and social skills.

Attempts like these to identify the domain of parenting ability dimensions tend to have begun with a conceptualization of the domain of children's needs. The law clearly establishes children's needs for growth and development as the context in which to consider the functional abili­ties of parents. This approach draws one to developmental psychology, which may provide conceptual schemata for the domain of children's needs and, thus, essential parenting abilities.

The advantages of conceptualizations of this sort are several. Each parenting task is amenable to translation into one or more parenting ability concepts, and each of these can be related conceptually to psycho­logical evidence (both theoretical and empirical) concerning the developmental needs of children.

Psychologists have developed a number of assessment instruments (reviewed later in this chapter; also see Heinz & Grisso, 1996; Otto, Edens, & Barcus, 2000) to examine parents' assumptions about children's needs and their past child-rearing behaviors. Unfortunately, few of them have derived from a developmental and legal conceptualization of children's essential needs or parents' essential abilities.

A somewhat different approach to the conceptualization of parenting dimensions is to describe caretakers according to their parenting styles. Researchers have identified two basic dimensions of parenting that appear to play an important role in the socio-emotional development of children. The first of these dimensions—sometimes described as nurturance—reflects the degree of affective warmth orcoldness in the rela­tionship. The second broad dimension, sometimes referred to as control or restrictiveness, describes the type and degree of supervision, monitoring, and/or limit-setting employed by the parent. These two factors (nurtu- rance and control) have been used to classify basic parenting styles (Baumrind, 1967; Campbell, 1997; Reitman & Gross, 1995), such as author­itative (high nurturance, high control), authoritarian (low nurturance, high control), and permissive ([high or low] nurturance, low control).

Classifications of parenting styles do not attempt to define a domain of parenting abilities. Nor do they necessarily use a consideration of chil­dren's needs as a conceptual touchstone for their formation. Instead, they seek to describe the range of parenting behavioral styles that are apparent in clinical observations or empirical investigations of parents. Further, the beneficial and deleterious effects of various behavioral styles of parenting are amenable to empirical investigation, using developmental theories and assumptions about children's needs to form hypotheses about these effects. Considerable research on parenting styles (for reviews, see Dishion & Patterson, 1997; Hetherington & Parke, 1975; Loeber & Stouthamer-Loeber, 1986) has provided some empirical grounds for inter­pretation of their meaning or importance when they are manifested by caretakers. Several methods for assessing these behavioral styles of par­enting have been developed, and some of them are reviewed later in this chapter.

Causal Component

Causal inferences will be required in many custody cases, in order to interpret the meaning of parents' manifestations of adequate or deficient parenting abilities. A manifestation of desirable or adequate abilities and attitudes, for example, might reflect either actual strengths or dissimula­tion. Parties in both dependency and divorce custody cases often wish to appear to be good caretakers. Gardner (1982) commented on the fre­quency with which examiners encounter "super-parents" who proclaim attitudes and approaches to child rearing that seem (literally) too good to be true. Research examining the response styles of parents participating in child custody evaluations have borne this out, identifying a tendency for parents to minimize shortcomings and foibles that they may perceive as relevant to the custody question (Bathurst, Gottfried, & Gottfried, 1997; Bagby, Nicholson, Buis, Radovonovic, & Fiedler, 1999; Otto & Collins, 1995). Thus, as with all forensic evaluations, examiners must seek to explain the meaning of examinees' adequate performances in custody evaluations, rather than assuming that their admirable behaviors always reflect strengths in everyday parenting behaviors.

When the examinee manifests deficits in parenting abilities, a number of causal explanations are possible, each having important implications for legal deliberations and dispositions of custody cases. Several explanations may be listed, with no claim that these exhaust the possibilities:

• Life situational stress. When a parent's recent record of parenting behaviors at home (or abilities as assessed in an examination ses­sion) manifests inadequate or detrimental responses to a child, these behaviors might be a reaction to life circumstances (e.g., abandonment by spouse, death of family members, recent eco­nomic crisis) of relatively recent onset, rather than being character­istic of the parent's abilities across a longer period of time.

• Situational or examination-related stress. Some parents may react more than others to the circumstances of being evaluated or judged in terms of their parenting ability, with the result that their per­formance may be impaired in direct assessment observations and be non-representative of their usual parenting behaviors.

• Ambivalence. Some parents who manifest a poorer ability to meet the needs of the child than might be expected given their parenting history may do so in response to ambivalence about obtaining cus­tody of the child. While the ambivalence might not be expressed openly, it may be manifested indirectly in impairment of the par­ent's demonstration of adequate parenting abilities.

• Lack of information. Some parents might perform poorly on assess­ments of their knowledge or sensitivity to certain aspects of child rearing merely because they lack the information or awareness required to perform otherwise. Given that they have adequate capacities to learn more appropriate or effective behaviors, their parenting deficits might be negligible if they received appropriate instruction.

• Mental disorder or disability. Parenting deficits might be related to underlying deficiencies in intellectual capacity, mental disorder, or pervasive and persistent problems of personality or behavioral style.

Some of these issues bear on how remediable the parent's deficits are. For example, in a case involving the possible termination of a parent's right due to past neglect, it would certainly be important for a court to know if the parent's past inadequate care-taking behaviors could be easily remedied by instruction concerning some essential aspects of child rearing. It would seem fundamentally unfair to limit or sever a child's relationship with a parent for reasons that are so easily remedied. In contrast, there may be no alternative to terminating or significantly limit­ing the parent-child relationship when parenting deficits require substan­tial remediation and change in chronic, underlying characteristics of personality or psychopathology.

One must look beyond the measurement or observation of current parenting abilities, of course, to obtain data with which to address these explanatory possibilities. Some of these optional interpretations may be considered with data obtained from a broad, clinical assessment of the parent's intellectual and personality, characteristics, mental status exami­nation, and interview exploration of the parent's motives and desires. In addition, several of the potential explanations for deficits will require historical information on the parent's life situation and pattern of chil­drearing practices, outside of the present examination or before the imme­diate period of time in the examinee's life. This information sometimes can be obtained directly from the examinee in interviews or with struc­tured methods for assessing life stress. Extensive reviews of past records or the reports of third parties might sometimes be helpful. Whatever the specific method, the intent to address causal explanations will require the use of ancillary data with which to assist the court in its interpretation of observed deficits in the parent's specific care taking abilities.

Interactive Component

The logic of standards applied in divorce custody, dependency, and termination cases requires a comparison of this parent's abilities to the particular needs of this child (Bray, 1991; Bricklin, 1995). Children vary in the degree to which they are in need of various parenting abilities (see generally, Bornstein, 1995). For example, children with special health problems may require especially consistent attention to nutritional or pharmacological schedules and potential medical emergencies, whereas other children may be able to tolerate greater laxity regarding physical care. Some children have developed behavior patterns that require greater structure, discipline, or control, whereas others manage well with consid­erable autonomy. Some of these differences are related to children's devel­opmental ages or stages, whereas others are more idiosyncratic. These individual differences in children demand somewhat different parenting capacities.

Therefore, deficiencies in certain parenting abilities may have greater or lesser significance in various cases, depending on the needs of the spe­cific child in question. Stated another way, if two parents in two different custody cases manifest relatively equivalent parenting abilities, it is possi­ble that one may be perceived as adequately equipped for custody whereas the other may not, given that the children in the two cases manifest very different needs.

It follows that forensic examiners in dependency and custody cases should obtain information that will help the court to consider congruency or incongruency between the examinee's parenting abilities and the particular needs and characteristics of the specific child whose custody is in question. Assessments in the context of dependency and custody proceedings, therefore, should include assessment of parent and child, individually and in interaction if possible (Bricklin, 1995; Budd & Holdsworth, 1996; Budd, 2001; Gould, 1998; Gould & Stahl, 2000; Stahl, 1994).

Most cases will require a review of the child's medical history, a detailed developmental, social, and family history, and information concerning the child's behavior and performance in various everyday settings, especially schools. Child psychiatrists and developmental and clinical psychologists should be familiar also with the wide range of available instruments and techniques for assessing children's behavioral predispositions, needs, emotional states, and abilities.

The selection of assessment instruments to be employed should also take into consideration the examiner's intention to compare the parent's abilities to the child's emotional needs and abilities. Descriptions of con­gruency or incongruency between parental ability and a child's needs may be enhanced by selecting instruments for the two assessments that have parallel dimensions: for example, an evaluation of the parent's capacity to provide structure, and the child's capacity for self-control with a minimum of externally imposed structure.

The interactive component also directs one to consider the parent's spouse, other adult and child members of the family, non-family resi­dents, or nonresident social supports within the caretaker's foreseeable future. Individuals of these types in some cases might manifest the poten­tial to compensate for certain functional deficits of the caretaker in meet­ing a child's needs. In other cases, individuals with whom the caretaker will share child-rearing responsibilities might have characteristics that increase the demand for certain abilities on the part of the caretaker.

These possibilities suggest that some forensic assessments in custody cases will require assessment of ancillary caretakers. Different cases might require more or less intensive assessment of these individuals, but with attention generally to the same set of functional abilities and explanatory considerations as discussed above in relation to the caretaker. Some cases might call for family or conjoint assessments to evaluate the caretaker and ancillary persons as a unit.

In summary, the interactive perspective reminds us that no particular degree of deficit in parenting abilities is suggestive of inadequate care taking. There may be exceptions to this perspective when certain abilities are gravely deficient and important for meeting the needs of any child. Generally, however, the significance of a particular weakness or deficit in parenting ability will lie in its comparison to the needs or demands of the specific child and the resources or deficits of ancillary caretakers. In the­ory, at least, a parent may be incompetent or inadequate to care for one child in a particular social context, yet adequate to care for another child or to do so within some other social context.

Judgmental and Dispositional Components

A description of the degree of incongruency between a caretaker's parenting abilities and a child's needs is not the sole determining factor in legal custody decisions. Ultimately a judgment must be made concerning whether this degree of congruency or incongruency is sufficient to war­rant the decision to terminate or reinstate custody, or to decide which of two potential caretakers, each with patterns of congruencies or incongru­encies, warrants the better prospect for custody. It is clear from past appel­late decisions (see "Legal Standard" discussion earlier) that no particular degree of ability or person-situation congruency answers the ultimate legal question, "What custody decision should be made?"

Several factors may enter into this judgment. In removal and termi­nation cases, one of these factors is the degree of risk to children that soci­ety is willing to take, relative to its interpretation of the rights of parents and society's intervention to limit those rights. The decision that a par­ent's custody of a child should be terminated because of incompetence (i.e., that the parent is "unfit") is a decision that the risk of harm to the child justifies the state's intrusion to sever a relationship recognized almost universally as having no equal for intimacy and privacy. This balance of interests requires social and moral judgments of the utmost gravity. Empirical evidence and opinions about a child's welfare are critical to this decision, but they do not constitute sufficient grounds for an opinion that it is morally justifiable to remove a child from a parent's custody.

Even setting aside the moral quality of the legal question, mental health professionals apparently have little empirical foundation with which to foresee the long-range effects of termination of parental custody on a child. A child's "best interests" must consider not only the child's immediate care, but also such unpredictable matters as the effects of ter­mination on the child when, as an adult, his or her relationship with the parent has been irreparably altered across time. Therefore, as noted ear­lier, some commentators have argued that forensic examiners should not offer an opinion concerning whether or not custody should be terminated. Instead, they assert, examiners should go no further than describing par­ents and children, offering opinions about the immediate, foreseeable consequences of termination or continuation of parental custody, to the extent that data will allow for more than speculation on these matters.

The same conclusion can be reached concerning testimony in divorce custody cases. Often both caretakers present both advantages and disad­vantages for the welfare of the child. For example, on what empirical grounds would a mental health professional be able to recommend that one parent, who is somewhat excessively protective but will provide sound religious training, offers a better or poorer prospect for a child than another parent, who encourages autonomy and responsibility but is an atheist? Deciding which of various characteristics is more or less desirable is not an empirical question. It requires moral judgments that subjectively assign different values or different degrees of importance to various aspects of human development. Put simply, decisions about child custody and severance of parental rights are ultimately legal and moral and are best left to the legal decision maker (Azar et al., 1995; Emery, 1999; Melton, 1999; Melton et al., 1997; O Donahue & Bradley, 1999; Weisz, 1999).

Courts generally allow expert witnesses to offer an opinion concern­ing whether a parent is minimally competent to parent or concerning who would be the better caretaker of a child (Derdeyn, 1975). Except in extreme circumstances, however, any opinions on these matters stated by a forensic examiner are likely to reflect, at least in part, personal values often devoid of support by medical or behavioral sciences (Mnookin, 1975; ODonahue & Bradley, 1999). Further, in the extreme cases such as a choice between the risk of life-threatening abuse by one parent and some unfortunate but less detrimental prospect with the other, an expert opinion on the ultimate legal question would offer no more than would already be apparent to others. In any circumstance, then, the forensic examiner rarely can justify stating an opinion about how a custody case should be settled given the competing factors that are to be considered, some of which go beyond the expertise of the mental health professional.