Child custody-access evaluation: Cultural perspectives

Dr. Pratibha Reebye, MBBS, DPM, MRC (Psych), FRCPC
Clinical Associate Professor, University of British Columbia, Canada
Consultant to Child Protection Clinic of British Columbia's Children's Hospital, Vancouver, BC, and Family Court Centre, Burnaby, BC, Canada

preebye@cw.bc.ca



SUMMARY

The assessment of the influence of culture in child custody-access evaluations is a dimension of emerging importance. The cultural impact on the process of evaluation is bi-directional and multi-tiered. First, a parent's understanding of their family unit disintegration, efforts at reconstitution of their families, and views regarding child custody and access nearly always have a culture-specific core. These perceptions occur at conscious and subconscious levels. Second, an evaluator's comfort around their own cultural identity and cultural sensitivity are brought into the evaluation process. This can similarly occur at the subconscious level, resulting in cultural 'blind spots'.

Each step of child custody-access evaluations is influenced by the cultural values of the evaluator and the family. This fact is true for families from mainstream (dominant) as well as non-dominant cultures. Diverse assessment techniques during custody-access evaluations are employed with families from different cultural backgrounds. However, the philosophical core principle of the "best interest of the child and optimisation of the family unit's strength whenever possible", remains constant in the assessment of children, irrespective of their cultural heritage. Numerous case examples are discussed in support of these principles.

INTRODUCTION

Two claims to substantiate contemporary custody-access disputes continue to be made. The first claim, that these disputes are exclusively representative of modern times, is unsubstantiated. Historically, there are descriptions of custody conflicts, occurring in the context of guardianship, property conflicts or slavery (Aries, 1962; Shear, 1998). Even popular children's tales, such as Hansel and Gretel, (Grimm & Grimm, c.1800), elaborate on a parental inability in caring for their children, and abandoning them in the hope of alternate solutions.

In the Victorian era, an abundant literature described how orphans were placed either with wealthy, unsympathetic relatives, or else subjected to neglect and child labour in workhouses. Children of affluent families in that era faced early separation from their parents. Often, this separation occurred when children were sent to boarding schools. Unintended emotional and physical distance between parents and children followed popular ideologies of the times such as "spare the rod and spoil the child" and "children are to be seen, not heard".

In modern times, analogous situations exist in the family unit and social network break-ups, when children are involuntarily separated from their parents. However, the separation of children by parental volition is qualitatively different from the plight of children who are products of disintegrated parental union. In the latter situation, the emphasis is reversed. Parents in the process of divorce, or estranged to one another, often want and/or demand the return of their children. The ramifications on the well being of children due to social network disruptions are well known. A critical review conducted by Green (1983) found evidence attributing significant morbidity in First Nations children to their placement in extra-familial and extra-cultural care settings.

The second claim, that custody-access disputes are predominately a North American and European phenomenon, requires explanation. The advances in communication technologies, global population movement, and resultant acculturation have contributed to fundamentally irreversible attitudinal changes within family units world-wide. Even cultures that traditionally have maintained a predominant homogeneity, such as in Japan, are now faced with the difficulties related to marital disruption and child custody conflicts. The Batsu-ichi, meaning people with one strike against them, or the divorced, are increasing. Divorces in Japan have increased from 179,150 in 1983 to 243,183 in 1998 (Japanese Ministry of Health and Welfare, 1999). It is interesting to note that there is no change in marriage rates, 6.4 in 1983 to 6.3 in 1998.

Nevertheless, marital disruptions and the consequently increased problems of custody-access are mainly European and North American phenomena. Divorce rates in the United States have tripled between 1960 and 1980, and are the highest in the world (Kenniston, 1977). In the twentieth century, the number of children whose parents divorced grew by 700%. Canadian statistics are just as alarming. The 1996 Canadian population census found that common-law and lone parent families made up 26% of all families in Canada, as compared to 20% a decade earlier (NFFRE, 1999).

Within Canada, the Provincial Court of British Columbia has concurrent jurisdiction with the Supreme Court of British Columbia in the areas of custody, access and maintenance and spousal maintenance. The magnitude of cases served by these courts can be seen in the following figures. In 1995, 13,534 families were seen by the Supreme Court of BC, and the provincial court saw 13,398 families. In addition to mere volume of cases that are before the court, the inherent complexities of assessments have also increased. These changes have resulted from paradigm policy shifts, the changing structure of family units, and the challenging social milieu.

The paradigm shift of custody allocation from parental rights to the best interests of children is almost universally accepted. This has created a uniform expectation of a 'gold standard' in evaluations and custody-access reports. With changed family dynamics, the once clear-cut distinction between nuclear and extended families is now blurred. Families have acquired additional descriptors, such as 'blended', 'single parent', or 'same-sex parents'. These descriptors are important when child placement decisions are made. With increased global mobility, the ecological and social milieu around family units is also altered. The multicultural environment of cities world-wide now provides a myriad of possibilities for family living arrangements and cultural mixes in daily living.

Within these complex environmental challenges, cultural issues in child custody-access are ripe for deeper exploration. The main focus of this discussion will be on the children of parents belonging to non-dominant cultures who are caught in custody-access disputes.

Purpose of the article

The purpose of this article is to assist clinicians who will be evaluating children and families from non-dominant cultures on custody and access arrangements.

Specifically, this article will elucidate for the reader the following objectives:
* understanding the impact of culture on the functioning of the family unit
* developing an appreciation for the necessity of culturally-sensitive evaluations
* introducing the concept of cross-cultural sensitivity in custody-access assessments

Review of literature

There are very few systematic studies on the impact of culture in the context of custody access evaluations. The lack of empirical evidence has been noted by other authors (e.g., Vasquez, 1999; Roll, 1998).

The practice parameters for child custody evaluation, prepared by the American Academy of Child and Adolescent Psychiatry (AACAP, 1997), recommend that cultural issues should be noted. Unfortunately, this and similar practice parameters do not specify a guideline for assessing the influence of culture on a child's growth and development. It becomes the responsibility of the evaluator to keep up with the current literature on various topics, including:


* cultural perspectives of attachment (Main, 1990; Reed & Leiderman, 1981; Van Lizen Doorn & Sagi, 1999),
* parenting attitudes (Harkness & Super, 1996),
* child development (Erikson, 1968; Meins, 1997; Whiting & Edwards, 1988),
* child abuse (Jaffe, Wolfe & Wilson, 1990; Johnston & Roseby, 1997),
* family functioning (Beit-Hallahmi, 1977; Caudill & Weinstein, 1969; McDermott, Char, Robillard et al., 1983; Whiting & Whiting, 1975),
* gender roles - including father's versus mother's role (Jackson, 1993; Lamb, 1997; Scanzoni, 1975), and
* disability in children (Ho, 1992)

The essential components of the knowledge base for custody-access evaluators are the following: different aspects of parent-child relationships, an understanding of child development, child rearing practices, the importance of the family as a social institution, attitude toward mediation (Avruch, 1991; Irving & Benjamin, 1995), and therapeutic modalities (Landau, 1982; Sue, 1981; Tseung & McDermott, 1975). While a detailed discussion of various cultural patterns is not within the scope of this paper, an essential prerequisite to cultural custody-access assessment is familiarity with the topics mentioned above.

Definitions: 

It should be emphasised that both novice and experienced cross-cultural therapists need to understand the parameters of any proposed intervention in custody-access assessments. The concepts discussed in this paper have been adopted and practised by the author in the process of cultural evaluations which resulted in sound child custody-access determinations.

Every family unit maintains distinctive cultural and ethnic identities, which shape its practices and attitudes. Culture is best understood as a tapestry that has interwoven strands of various aspects of daily living, thinking, beliefs, rituals, vulnerabilities, and strengths. Ethnicity is described as a sense of commonality transmitted over generations by the family and reinforced by the surrounding community (Giordano & Giordano, 1977).

In working with ethnic minorities and/or non-dominant cultures, the acculturation process requires careful consideration. It is the degree of acculturation that attributes uniqueness and complexity to family units moving away from a common ethnic and cultural heritage. A simple definition of the acculturation process incorporates the cultural modification of an individual or group through the adoption and adaptation of traits from another culture (Merriam-Webster, 1989).

The presence of cultural sensitivity is considered a desirable attribute for the cross-cultural therapist. Anderson and Fenichel (1989) emphasise the appreciation of differences and similarities between different cultures in order to develop cultural sensitivity. This two-pronged approach is a good guide for evaluators. Most of the time, it is easy to be aware of cultural differences rather than cultural similarities. The appreciation of similarities between cultures is therefore a skill that requires attention and development.

EVALUATION PROCESS

1. Evaluating the evaluators

Evaluators are experts in their profession, and may belong to diverse disciplines (e.g. social work, psychiatry, forensic or counselling psychology). They are ethically bound by the specific guidelines and standards developed by their discipline. There is also a universal acceptance of the philosophical core principle of directing assessments to serve the best interests of the child. The gold standard of appropriate practice in the custody-access field is achieved when the superlative "best" is applied to ethically sound and "good" practice of determining children's interests (Gonthier, 1998). Implicitly, all custody-access evaluations share the fundamental premise that parental rights and interests must be subordinated to the needs of the child.

An evaluation is always a two-way process. The evaluator and the family members both contribute to the dynamics. Cultural issues in evaluations may evoke uncertainties even in the most seasoned evaluator, leading to misjudgements. Families can be misunderstood or dismissed as unworkable.

The cultural identity of the evaluator may be challenged. However, matching the cultural identity of the evaluator to the family under assessment does not always ensure a smooth process, and it is not an absolute prerequisite for conducting a good evaluation. Cross-cultural sensitivity cuts across many issues and is heavily bent towards empathy, respect, and creativity. The reality of custody-access assessment scenarios is that the evaluator is quite likely not of the same cultural heritage as the family under evaluation. There are simply not enough experts to conduct custody-access evaluations, and to match the evaluator to the family on the criteria of cultural heritage is not possible. Even if the evaluator belongs to the same culture as the family, he or she may be on a different acculturation path from the family undergoing assessment.

Evaluators have to complete their own cultural journey in order to formulate and present an unbiased, neutral opinion. The evaluators will have to understand where they stand regarding their value acceptance and stereotypic understanding of ethnic and cultural groups.

It is a necessary step for any evaluator to examine their motives for accepting a role in custody-access assessments. There is tension generated in assisting an often unwilling, uncooperative and needy population. The pressure to complete evaluations by deadlines, to attend court, and to adjust to disruptions in normal routine, all take a toll on evaluators. The evaluator should be appraised of these issues, and decide if their personality attributes can accommodate urgent requests in an emotionally charged environment.

For a new evaluator, mentorship and on-going supervision is important. An overconfident evaluator who makes judgements in haste will only create dilemmas for the families under scrutiny, and problems for the legal system. Judges often take into consideration the opinion of clinical experts. Misleading opinions can have detrimental effects on a child's development and the functioning of the family. The supervision of novices in this field will expose cultural blind spots of the evaluator and guide him/her appropriately.

The next step in the evaluation process can only be achieved once evaluators are comfortable about their own cultural identity and insightful of their cultural blind spots.

2. Constructing a cultural profile of the family

Children do not live in a vacuum, and they do not have the luxury of choosing their parents. Usually, children are consumed by the cultural and ethnic identities of their family of origin, with the exception of cases involving trans-racial and trans-cultural adoptions. Trans-racial adoptions pose a complicated dilemma. Often evaluators feel compelled to recommend a role model from the same racial and cultural origin, with the goal of optimising the child's development. Fortunately, many observations of children placed in parental homes with different racial and cultural orientation point toward a good fit (Perry, 1990), and such recommendations are not routinely needed. 

Irrespective of a cultural mix in the custody-access evaluation, the evaluators have to build a comprehensive cultural profile of the family under scrutiny. A cultural profile of the family unit is constructed on three main axes. These are described below.

Axis One: Derivation of deviance from mainstream cultural values

Extrapolating a measure of deviance from the mainstream values will provide the evaluator the opportunity to understand the cultural axis and acculturation of the family unit. It can be achieved in the following way:
1. Select the anchors for exploration of cultural impact. In custody-access evaluations, commonly selected anchors are family values regarding parenting practices, attitudes toward marriage, child development, disciplining practices and education.
2. On the selected anchor(s), native cultural family values and values of the dominant culture are noted.
3. Estimation of deviance from the non-mainstream cultures regarding the areas under examination should then be undertaken.

Axis Two: Determining the degree of acculturation of the family unit

Sanday (cited in Green, 1982) described four principal patterns of cultural integration that reflect a cultural group's integration to the dominant culture. Mainstreamers are those individuals who have assimilated or adopted the standard values of the dominant or mainstream culture. The second category comprises bicultural individuals, who are able to negotiate values of a mainstream culture and their own culture. The third category includes culturally different individuals, who maintain their values from the native culture. And finally, culturally marginal individuals are described as not having loyalty to the values of any culture in particular.

Another way of looking at the process of acculturation is to apply a crude 3A test. This test assesses the level of acceptance, adaptation and assimilation process with dominant cultural practices. These approaches provide an estimate of the degree of acculturation of the family unit as a group and of the individual family members.

Axis Three: Determining cultural views on problem-solving strategies of the family unit

Most cultures maintain basic strategies for problem solving. An example of a culture specific strategy may be seeking guidance from a priest, shaman or counsellor during a period of stress. In the stressful environment of family disruption and fear of losing custody of one's children, families may rely on their dormant cultural beliefs and culturally consistent problem solving skills. All culture specific problem-solving strategies are not maladaptive. Probing strengths from the native culture and seeking culturally accepted solutions will help evaluators build a reserve of culture friendly strategies.

The obvious reason for conducting this exercise is to make custody and access recommendations in a culturally balanced manner. However, another benefit to this process (which is often not discussed) is in the understanding of how theinterpretation and delivery of these recommendations plays out in the family unit. The following clinical example illustrates this point.

A bi-cultural family (native Chinese origin, with very good adjustment to North American values, and assimilation in the community) faced the first culture related problem during their custody battle. The male child, who was 7 years old at the time of marital disruption, was placed in joint custody of his bicultural parents. At the follow-up meeting with their family counsellor, it was discovered that the parents had completely ignored the careful plans regarding joint custody and access. It was surprising because the plan had been developed with the co-operation and input of the parents; and, they had spent a fortune in legal fees.

Cultural analysis of the situation was important. The couple could hold newly learned cultural values as long as they were together. As soon as the final separation occurred, each parent was on their own. The loneliness and unfamiliarity with lone parenting took its toll on both parents. The mother reverted to her parental style, which resembled mostly the native culture in which she was raised (Hong Kong / Chinese influence). The mother gave way to her ex-husband's plans for raising their son, although she could have enforced the co-parenting plan sanctioned through the legal process. The father still struggled with the idea of remaining the breadwinner rather than the nurturing parent, and soon left the parenting part to his mother (the child's grandmother), who refused to understand democratic, liberal co-parenting plans.

In this case the evaluator should not despair, as the family unit took a comfortable cultural path which was dormant within the overt bi-cultural value structure initially presented by that family.

The example presented here is not very complicated once an evaluator takes the opportunity to understand the cultural outcome. When a case involves more children, on different developmental paths, and at different degrees of acculturation, then the construction of a cultural profile may not be as easy. 

3. Microanalysis of the family unit(s) under scrutiny

There are many excellent tools employed in the assessment of family units. The purpose of this section is to elaborate on those facets of family functioning that are relevant to custody access determination in a cultural context.

Disruptions in daily living

Marital disruption and family unit break-up is not a sympathetic process for anyone in the family. For the parents, there is a definite transition from how they functioned within a family unit, to perhaps becoming a single parent. In cases where either parent is not considered safe for the child, there is an additional trauma of disruption of both spousal and parental roles. Children similarly are expected to adapt to unfamiliar living situations. The following is a clinical example:

When interviewed in the judge's chamber, two teenaged siblings from a biracial marriage declared that they did not want to live with their wealthy, alcoholic and physically abusive Caucasian father. Custody was awarded to their mother who was of visible ethnic minority. Prior to separation, the children were enrolled in a grammar school that was located in an affluent area of the town. After the first semester, the son adamantly returned to his father's custody. His decision was prompted by ridicule from his peers for living in a poorer, ethnic section of the town (where his mother had relocated, as her family of origin still resided in that section of the city). The adolescent son could not adjust to the social demoting that occurred following the divorce of his parents.

The emotional and social hassle that children undergo following family breakdown is well known. There is an added responsibility on an evaluator to be non-judgemental in the case of family disruptions where parents are from different ethnic groups. If both parents are from non-dominant cultures, the decisions are easier than the situation where one parent is from the dominant culture. This is precisely the kind of situation where it is helpful to seek a second opinion from evaluators who are conversant with both cultures.

The impact of culture on the daily lives of children is tremendous. Children have a special place in their families. It is important to examine the culturally assigned roles of children, as well as the child's assigned role in the specific family unit. Children assume many critical, culturally assigned places in the family hierarchy, which are influenced by birth order, gender, or having an ability to converse in the language of the dominant culture. Thus, parental separation has deeper and further-reaching after-effects on a child's self and social esteem.

Evaluators often are involved in making clinical judgements in access matters, joint legal and joint physical custody, and in 'move away' evaluations. An insight into how children conduct their daily activities in a specific cultural unit provides a focus for such elaborate recommendations. For younger children, the impact of culture on their daily lives can influence sleeping arrangements, eating, playing, and conjoint family activities. Issues of schooling, hobbies, group sport involvement, and autonomy-dependence styles should be explored for latency aged children. The issues of emotional communication, appropriate respectful disciplining, and support for emancipation gain prominence in adolescent evaluations. Daily life also includes dreams, aspirations and taboos held by parents and children. Some parents may expect their children to over-perform, or parents may be unaware of the influence of their dreams on their children (in particular when they constitute a form of emotional abuse).

The extra-familial life of the child and the family should be conferred through the family's informal network of contacts. This network may include people from church, sport organisations, and ethnic or cultural clubs.

Marital and parental subsystems

Some cultures do not have firm boundaries between marital and parental roles. For example, in many European cultures, it is common for a husband to refer to his wife (and mother of their children) as "mom". In extended South Asian families, the woman may adopt a new identity with the custom of changing her maiden name to one assigned by her husband. Her husband becomes her protector and guide, and she is referred to by her 'role' (i.e. as the wife of Mr. X, or the mother of her son or daughter).

When a marital breakdown occurs in these situations, the woman is deprived of her customary identity and sense of self. Thus, the relationship disruption disarms women, especially in male-dominated cultures. Outside of the relationship, women are challenged to construct a new identity, sense of self, or effective roles as mothers or as potential partners in new relationships. The single parent role therefore has a culture specific halo.

Generally, in dominant North American cultures, the role of single parent has many psychosocial disadvantages, without a derogatory connotation (Hanson, 1992). In male-oriented cultures, the situation of single parenthood is different. Single women experience low self-esteem and loss of social and family identity. Interviewing single parent women from minority, male-dominated cultures can be challenging. The evaluator should be aware that demoralised parents may not hear suggestions, and may not respond to questions in a calm manner. Passivity or angry responses may be situational and further information from collateral sources is required.

Roles and gender specific parenting

Role distinction between who raises young children and older children are often culture-specific. Aspects of acculturation are heavily weighed here. The bread winning and nurturing roles are sometimes too well demarcated in Asian cultures. The acculturation poses necessity of rearrangement of these roles within the families. Often, there is a reversal of roles, which is uncustomary to the cultural family unit. The evaluator needs to be objective regarding gender bias. A man, who is undergoing a difficult role transition in his life, may view female evaluators as biased. The evaluator needs to seek help from peers or supervisors if issues of transference undermine their objectivity.

Problem viewing and problem-solving

The breadth of problem-solving capacity and flexibility of approaches is another controversial area. Centrifugal versus centripetal patterns of help-seeking behaviour will determine if family members are able to abide by recommendations requiring help from systems outside a family's immediate environment. Most evaluators face this problem sooner or later. Stoic families may not accept help from community resources. In particular, Anglo-European cultures are characterised by their high regard for individualism, action orientation, and self-reliance (Hanson, 1992). If mental health issues are brought forward, idiosyncrasies have been evident in, for example, South Asian, Chinese, and Eastern European cultures.

Culture specific observations on family violence, child discipline, spousal violence, attachments, and attitudes toward disability and mental illness are all crucial. The challenge for the evaluator is to balance the child's need, the provincial or regional laws regarding the child's safety, and the cultural practices and biases of the family.

Family disruption and attachment

Family disruption is a common nuclear event in all cultures dealing with divorce. Culture-based observations are important to consider when attempting to understand how family members view their family disintegration. Studies of the impact of family disruption on children have focussed on traumatic effects by developmental categories. Infants need a "secure base" and a "safe haven" to establish their foremost task, which is the establishment of attachment to the primary caregiver (usually their mother). Bowlby (1982) identified a pre-attachment phase, which lasts from birth to 6 weeks, a second phase of attachment is the making phase (from 6 weeks to 8 months), and the third attachment phase when attachment to the caregiver is evident. Later phases of attachment include formation of a reciprocal relationship or partnership.

There are culture-specific factors to consider. Secure attachment is described as the best and optimal relationship between the mother (or father) and the infant. Secure attachment remains the most prevalent pattern, in most cultures, in spite of differing parenting practices (Van Lizen Doorn & Sagi, 1999). The disruption of a parent-infant bond (especially between mother and infant) may have far-reaching effects, particularly if the mother was the primary caregiver.

Bowlby (1982) maintained that an infant is able to form a hierarchy and place his or her first primary caregiver (usually the mother) at the highest place in the hierarchy. In many cultures, an infant is raised by multiple caregivers. It is extremely important for an evaluator to determine the infant's point of view regarding hierarchical arrangement of attachment figures.

Cultures show variations in their perceptions of family unit disruption. For many Eastern cultures and First Nations people, the concept of the family unit itself is different as compared to Western cultures. The family unit is not a nuclear unit, but encompasses a solid network of extended family members and community members. The marital separation of a couple, therefore, may have little impact on the instrumental aspects of a child's raising. On the other hand, the child may lose all of his or her supports and well wishers. In many cultures, it is the parental unit that divorces, leaving a relatively well preserved family unit. 

Infants and toddlers who have a severe disability retain a special place in evaluations. Many cultures are either non-accepting or are worried about an infant's future when challenged by an obvious disability. Physical disability receives greater attention and understanding than do emotional or developmental disabilities. In many cases, parents feel shame and humiliation, and thus may hide or attempt to minimise the disability. A child with special needs, especially a young child from a minority cultural background, is in a vulnerable position. An evaluator's analysis of parental understanding of their child's disability is crucial.

4. Conduit and format of assessments

The majority of assessments begin by telephone contact. Sometimes, families may leave messages in their native language. It is helpful to provide details to parents in writing, particularly when English is not their first language. A letter sent through the family lawyer's office, or through their social worker, should include details of the date, time and venue of the assessment.

As with any custody-access assessment, it is extremely important to gain informed consent, in writing, from both parties. The time spent in explaining the assessment procedure to the family is of immense help to the evaluation overall, even if it means spending an extra hour with an interpreter. If family members speak English, it should not be assumed that they have understood all parts of a confidentiality agreement. It is important to take extra time and ask them to reiterate their understanding of the evaluation process.

Evaluators have the responsibility to explain their role in the process, and define their expertise. While this may not be as important for families from Anglo-European origins, it is a very sensitive area for some ethnic and cultural groups. In most of South Asia, the role of a social workers is a fairly new concept. When a social worker is an evaluator, some people who may have fear or guarded feelings about police and social services will likely react in a highly sensitive manner, personalising every issue under discussion.

People from developing countries usually understand medical models well and will accept the authority of medical personnel rather readily. However, some cultures view the role of a psychiatrist with suspicion. If the ethnic family believes that the problem is not that of "craziness", they may refuse to accept a psychiatrist as their evaluator. Gender specific issues also generate some reservation. Families from male-dominated cultures may have difficulty perceiving a female evaluator as neutral.

A general lack of knowledge or understanding of national or provincial laws regarding child discipline is fairly common. In many cases, parents are truly amazed that they cannot spank their children and that their behaviour is considered abusive. The following clinical example emphasises this point:

A ten-year-old boy from a mixed-race marriage was before the court, caught in a custody battle. The mother was Caucasian Canadian, and totally against physical punishment of her child. The father was of Iranian origin, and believed that his child required physical discipline for bad behaviour. The child in question had been involved in shoplifting. The father became very upset and spanked his child severely. Following the incident, the mother and her son took refuge in a women's shelter.

During the evaluation, the father was co-operative but did not understand the seriousness of his actions. He insisted that he was being a good father by teaching a lesson to his son. The father's history suggested that his parents and teachers had physically disciplined him throughout his childhood. He had witnessed harsh physical discipline all around him in his growing years, and maintained the belief that physical punishment did not damage him. It took many hours of psychotherapy for him to understand the different standards accepted for disciplining children in North America, and what was construed as abuse in their region.

Gathering data

Etiquette: Although the following descriptors apply to any culturally sensitive assessment, they are especially important in custody-access disputes, when emotions are heightened. Evaluators need to convey a quiet and confident manner. In all cultures, respect shown to family members is a necessary prerequisite to good rapport building. Culture-friendly social graces, such as shaking hands, nodding heads, seating arrangements and greetings, all have a place in a well conducted, culturally sensitive assessment. The use of humour in assessments such as these is tricky. Evaluators have to remind themselves that humour is a function of a highly organised comprehension of language. Whenever a family is not conversant in the interview language, the positive affect expressed during humorous comments will be taken as an insult to the gravity of situation.

Concept of time: Gathering culturally informative data is not an automatic or easy task. The concept of time differs among cultures. Some interviews will take a lot of time, due to a slower pace, communication difficulties, or a family member's desire to appear polite by answering in monosyllables. Whereas a Latino family may seem to rush through a conversation, a First Nations or a Japanese family may wait politely for questions to be asked. The lack of spontaneity is not a manifestation of a passive aggressive stance, but rather a culture-specific protocol. As much as possible, a culturally sensitive assessment will exclude stereotyping of families under care. Overuse of compliments or critical statements undermine the evaluator's authenticity.

Interview formats: Sometimes, an interview format will require modification in order to accommodate the needs of culturally different families. One example of such a situation is the assessment of a child's comfort and security with attachment figures. In a typical situation, a young child will be seen in a play setting with both parents. However, as one new immigrant of African origin stated to his evaluator, playing with his child was conveying the wrong message. The father insisted that he would not waste the evaluator's time in such frivolous activity. The evaluator was astonished, but was sensitive to the father's cultural ideals of what he considered good parenting. The evaluator then gave him an alternative of practising a teaching task, which he accomplished with much vigour. The child and the father both were comfortable in this situation. This example is given to stress that the importance of well-known assessment techniques may be totally new to some cultures and therefore, alternate measures should be employed to observe the parent-child dyad in a comfortable arrangement. However, this example should not be taken as an endorsement of teaching tasks as superior to accepted play technique norms.

Problems of misdiagnosis and misconceptions about parental capacity: These problems have to be considered when conducting most culturally sensitive assessments. It is well known that ethnic minorities under-utilise mental health services (Ho, 1992). Two important problems experienced by families are language barriers and mistrust of the therapist. For these reasons, the assessment of mental illness during an estimation of parenting capacity may be a difficult task. Similarly, children who are not used to a structured milieu may appear very disturbed and hyperactive during an assessment. Additionally, a child who does not feel comfortable speaking in English may be labelled as a selectively mute child.

The use of psychological tests: Psychological tests are usually employed as the adjuncts to a good interview. Commonly used tests are the MMPI-2 and the MCMI-3 (Millon, Millon & David, 1994) for objective personality tests. Projective tests, such as the Rorschach, Thematic Apperception Test (TAT) and drawings, are also used. There are tests designed specifically for custody evaluations; the Ackerman-Schendorf Parent Evaluation for Custody Tests (ASPECT) is one such example (Ackerman & Schendorf, 1992). The use of psychological tests such as the Parenting Stress Index (Abidin, 1990) and the Parent-Child Relationship Inventory (Gerard, 1994) are prevalent in parenting capacity assessments.

No custody recommendations should occur on the strength of psychological test results alone. They are generally useful in high conflict divorces and as an adjunct to good clinical assessments. However, many of these tests are not intended primarily for custody-access assessments. For example, the Parenting Stress Index was originally constructed as a tool in assessing parental stress related to child maltreatment. In general, these tests are useful for use with clients who understand English. It is also important to note that cultural minorities can misinterpret many test items on child development and child discipline. Some otherwise useful tests may not provide accurate results if there are no culture-free norms (Gerard, 1994).

Assessment of potentially violent situations: During the interim phase, it is critical for custody -access assessments to consider the potential for violence. This is precisely the time when parents are feeling unsupported and self-absorbed. The problem-solving capacity of parents may be at its lowest ebb, and impulsive or aggressive means of problem solving are common during this period.

Use of collaterals: In addition to usual procedures, information from collateral resources can be very important. Determining collaterals (individuals who will provide information about the functioning of the child and parents) must be done with the utmost sensitivity. In the dominant North American culture, a typical family unit will likely list extended family members and close friends as their collaterals. This list can be substantially longer for some cultures. In Latino families, for example, the church may play an important role. Their collaterals may include most of the congregation, as they are considered by the family unit to be extended family.

Home visitation: It is customary to inform the lawyers and both contesting parents that a home visit is planned. A visit should not last more than one hour. The evaluator should explain the purpose of the visit in plain language. If necessary, an interpreter should be asked to assist the interview. Families act very differently on their own turf, than in an evaluator's office. Therefore, specific codes of etiquette should be inquired and respected. Common examples of everyday routine etiquette include removing your shoes outside the home, leaving umbrellas outside, and not entering the family ancestral shrine without permission.

Family members should be given the choice to decide where the interview will take place. It is recommended not to accept tokens of appreciation or become too familiar with families under evaluation. The problems of boundaries are important, as is the preservation of the evaluator's role image. In some Asian cultures, there are specific codes for welcoming guests, and hosts may go out of their way to provide food and make the evaluator comfortable. It is important that the evaluator explains that he/she is there to observe the child's normal living arrangements.

5. Ethical Issues in Custody-Access Evaluations (Cultural Aspects)

Concept of confidentiality: Issues of consent and limited confidentiality warning have been discussed previously in this paper. A useful point to remember is that adequate time must be spent in explaining the consent and evaluation processes. If a language barrier exists, authentic interpretation services should be involved.

Collecting collateral information: In the new immigrant community, friends may take the place of extended family. It is extremely important for evaluators to inform collaterals that the information they provide will be reflected in the report. There have been many instances when the collateral has provided information to evaluators with the assumption that they will remain anonymous. In a small, close-knit community, these factors are especially sensitive.

Use of interpreters: There have been many guidelines developed to inform the use of interpreters. In the best case scenario, family members should not serve as interpreters. It is recommended that well known, established interpretation services be contracted (Lynch, 1992).

Explaining legal procedures: While it is rightfully the responsibility of legal authorities to explain legal procedures to families undergoing custody-access evaluations, it is prudent for the evaluator to reiterate the assessment protocols at the beginning of each individual interview. Often, evaluators will be questioned by family members regarding legal procedures. An evaluator should not replace legal authorities nor convey an aura of importance in the areas outside of their expertise. Procedures should be explained as they pertain to the evaluator's mandate.

Dual roles of the evaluator: Most official guidelines for evaluators from their respective professional bodies (e.g. The College of Psychologists) discourage dual roles of evaluators; i.e. in the capacity of therapist and assessor. There are strict provincial and regional protocols regarding the role definitions of the evaluators. One of the tricky situations is assessment of the child involved in family violence. The domestic violence is pervasive in all cultures and is known to have far reaching implications for the children, no matter what race, social class or ethnicity (Johnston & Roseby, 1997).

In the case of disclosure from a child of any physical, sexual, or emotional abuse having occurred, the evaluator must report this disclosure to provincial or regional authorities. Steps must be taken to ensure the child's safety, irrespective of the stage achieved in the evaluation process. If disclosures of abuse original from adults involved in the evaluation, appropriate authorities must also be notified. These situations often are disordered, and can draw an evaluator into a dual role, which generally has to be de-emphasised.

Parental alienation syndrome: Richard Gardner (1992), who identified parental alienation syndrome, emphasises that the syndrome is not merely a severe form of brainwashing. Parental subconscious and conscious factors (and even intra-psychic factors) within a child are said to be contributory. Parental alienation syndrome is fairly common in biracial marriages. The following case will elaborate on culturally specific issues typified by this syndrome.

A physician of Latin American origin and his Caucasian North American wife were separated after ten years of marriage. The separation agreement was financially favourable for the estranged wife. The legal physical custody of their child (son, 8 years-of-age) was given to the mother on the grounds that the physician father had difficult and long hours of work, and could not look after his son adequately. The father assumed responsibility for weekend visits.

Within three months of the separation arrangements, the son became abusive toward his mother, using racial remarks and refusing to eat food cooked by her. He started terrorising his mother, often making remarks on her smoking and drinking, and asking her to allow him to stay at his father's home. The mother brought the child to the attention of a psychiatrist because of his sudden change in personality. She attributed this change to the child's perceived grief from the parental separation.

The psychiatric examination was negative for a diagnosis of depression. However, the interrogative manner by which the physician father drilled the psychiatrists for information about his son brought about suspicions of one parent alienating the other. The case was then referred to a child psychiatrist who recommended that there be mandatory consistent quality time arranged between the child and his mother. He also recommended involvement of the father in therapy. The alienating parent (father) did not participate in therapy.

In about two years, the child who had demanded to be with his father exclusively, got tired of his father's on-going brainwashing against his mother, and he ran to his mother, refusing even access visits with the alienating father. The alienating father constantly made derogatory statements about his ex-wife's cultural heritage and enlarged on the stereotypic behaviours of the cultural group, which included non-maternal behaviour, and prevalence of smoking and drinking.

Parental alienation occurs in families even where both parents are from a non-dominant culture. Alienation is usually not parent-directed. It often occurs in the context of family values versus an individual parent's values. In some minority cultures within the extended family context, one member can be alienated against the rest of the family (Reebye, 1994).


6. Recommendations

General comments

As emphasised earlier, the core principle of "in the best interests of the child" is preserved in all custody-access evaluations. Sometimes, the expectations from a complicated custody matter will need to be reconsidered as the "least detrimental course for the child".

The debatable point is whether or not the recommendations have to be perfectly matched to the specific cultural patterns of a family. In some cases this is essential and possible. There are some specific situations that deserve analysis more deeply than suggested in the general outline. These situations are touched on briefly here.

"Move away" - Access evaluations and recommendations

"Move away" cases occur when one parent's relocation plans impose changes on the daily life of the child. These cases can be very demanding and complicated in terms of legal, emotional, and psychological costs. Wallerstein and Tanke (1996) wrote a review for the Supreme Court of California regarding a move-away case. Their analysis urged the court to be more responsive to the child's voice and to take the child's age, community ties, health and educational needs into account.

These issues of "move away" access recommendations can take a complicated turn in culturally sensitive assessments. Take for example, the following case of two children before the Supreme Court:

The mother's native country is the United States. The father is a landed immigrant in Canada. The mother has decided to move to the United States where she has her family support. The father blocks the arrangement because previous access to his children had been granted as twice a week and two weeks every summer. He prevented his wife from taking away his children to the United States, and filed a new lawsuit for the custody of his children. In spite of these new complications, the mother left Canada with the children. Now, a simple access conflict becomes a complicated international kidnapping matter.

Although these events do not occur very frequently, they are nevertheless very costly in terms of anguish and distress for the children in limbo. The evaluator's task here is to minimise the trauma on the children, which in most cases is caused by an inflexible stance by one or both parents. It is imperative that the evaluators take on the added task of being the child's advocate. This is a classic situation where the least detrimental course of action is appropriate.

Scenarios when mediation is the appropriate choice

The purpose of mediation is to assist the separated parents in reaching an agreement on the best arrangements for the individuals living in the family unit. In the case of custody-access, mediation plans usually pertain to the child's living situation. Usual parameters of mediation plans revolve around five crucial questions; these are:

1. Who makes the decisions?
2. What decisions are made?
3. Where is the primary residence of the child?
4. How much time is spent with each parent?
5. Who are the significant people in the child's life, and what are their roles?

Cultural dimensions do not alter these basic expectations. However, the evaluator has to make sure that the mediator who will conduct the mediation is comfortable with non-dominant cultures. The language of communication now becomes more important. The evaluation process can be successfully carried out with the help of an interpreter. However, the mediation process can move more swiftly if there is a common language. The cultural slant on this process is that the cultural aspect of being shamed, or dis-empowered by post-court attendance can be very strong. Some mediation processes will therefore witness the emergence of depression or even suicide in clients who may have been quite forceful in the courtroom.

Inflammatory comments during the court case can be taken out of context and the mediator can become a target of anger by both parties. The best interests of the child can be forgotten in these highly emotional surroundings, and therefore must be re-emphasised. The "move away" problems, post-settlement blues, and grief and losses all appear with new vigour.

Evaluators need to take a preventative role and spell out potential post-court problems. In moderate conflict families, assistance from the courts to attend the mediation interview may be required.

CONCLUSION

The five tiers of evaluation for ethnically sound custody-access cultural evaluations involve:

1. Evaluating the evaluators
2. Constructing cultural profiles of the family unit
3. Microanalysis of the family unit under scrutiny
4. Culturally sensitive conduit of assessment
5. Awareness of ethical dilemmas and provision of culturally acceptable solutions
6. Recommending custody-access evaluations that are consistent with provincial, national and international legal mandates

It is imperative that custody-access evaluations occur in the best interests of the child or children, respecting family strengths whenever appropriate. The debatable points are whether or not the recommendations need to be customised to fit the specific cultural patterns of the family. The hierarchy of order for recommendations (from highest expectation to lowest priority) is as follows:

1. The best interest of the child/children with respect for regional and national laws
2. The least detrimental course for the child/children and families
3. Recommendations with cultural sensitivities
A culturally insensitive recommendation would be to expect a religious man of Islamic faith (who prays five times a day) to attend an anger management group where he is not given breaks for this purpose.
4. Recommendations which are practical and culturally adaptive

An impractical and non-adaptive recommendation would be to recommend group therapy for a mother who cannot understand English and feels alienated because she dresses differently and looks different from the rest of the group. There are many unresolved issues in culturally sensitive custody-access evaluations. In order to achieve higher acceptance of culturally sensitive recommendations, cross-cultural sensitivity must be encouraged within the legal profession as well. Therefore, much work needs to be done with the interface of the clinical and legal systems.

It is imperative to recognise the impact of acculturation on assessment, conflict resolution and custody placement recommendations. As we learn more about minority cultures, the knowledge needs to be conveyed to front-line evaluators through practical case management models.

For clinicians who do not feel competent to deal with diverse cultures, consider this: most evaluators have already embarked on their cultural journey through the experience of living in a modern, multicultural environment. The experience of and exposure to cultures different than our own is in large part a significant component of the training for cross-cultural evaluators. The development of cultural sensitivity in cross-cultural evaluators is an extension of our daily living experience. Once we understand the impact of culture on the functioning of the family unit, and develop an appreciation for the necessity of culturally sensitive evaluations, the road is paved for applying cross-cultural sensitivity in custody-access assessments.

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ACKNOWLEDGEMENT

This work reflects combined experience gained through the author's association with the Child Protection Clinic of British Columbia's Children's Hospital and the Family Court Centre.

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