BOOKSHELF

• DOI: http://doi.org/10.1111/j.174-1617.1989.tb01303.x
• Date: 01 December 1989
• Published date: 01 December 1989

BOOKSHELF

Family Evaluation In Child Custody Mediation, Arbitration and Litigation

Richard

A.

Gardner,

M.D.

Creative Therapeutics, Cresskill,

NJ,

1989,

670

pages

Originally intended as a second edition of, his earlier and

well received text

(Fumily

Evuluation

in

Child Custody

Litiga-

tion),

Gardner’s new book is more

than

an expanded and

updated version of his earlier work. In it he places the child

custody evaluation process

in

an entirely new context,

i.e.

outside the

oourti-oom.

In his usual lucid and engaging style,

Gardner details how his techniques for conducting child cus-

tody evaluations can be utilized innovatively as apart of the me-

diation/arbitration process. Gardner also responsibly outlines

how to conduct child custody evaluations

within

the adversarial

system (as part of the litigation process), within which the

majority

of

people still work. While challenging the participa-

tion of even impartial evaluators in system that is psychologi-

cally detrimental to clients,” Gardner provides encouragement

for those “who have thicker skins than

I

and who still have the

guts to enter the battle.”

On June

1.5,

1988, Gardner tells

us

that he decided “to quit”

being a child custody evaluator, in those cases which are

to

be

litigated. In his highly personal and moving first chapter, he

sums up thirty years of his experiences, which have contributed

to symptoms of bumout. Primarily systemic but also admittedly

personal in origin, the stressors Gardner identify are cause for

concern for any mental health professional involved in child

custody litigation on a daily basis. After four complaints to

ethics committees about him, two malpractice suits, a suicide, a

homicide and the death of aneighbor by heart attack, all related

to vicious and prolonged custody litigation, Gardner decided to

get

out

“while

I

am still alive.” Acknowledging he may have a

“hypertrophied conscience” and that “evaluations have always

weighed heavily on me,” Gardner’s description

of

his experi-

ences suggest that the interaction between his own unique dis-

position and the adversarial system may not have made for a

good marriage. In his “divorce proposal,” Gardner outlines a

humane and reasonable alternative for how the evaluation

process can be used in

a

new manner within the system to help

families.

In his critique of

the

litigation system (which

he

views as

being detrimental to both families and evaluators), Gardner

outlines how family evaluations can

be

utilized as part of the

mediationhubitration process. After parents stipulate not to

involve Gardner in the litigation process, he conducts a child

custody evaluation as before, except that the evaluation process

is confidential and no report is ever written. All recommenda-

tions are made verbally to the parents and their attorneys and

serve as “a point of departure for the mediation process.” In his

three stage “alternative system,” Gardner first proposes confi-

dential

mediation.

If the mediation process breaks down, he

then recommends a court

arbitration

panel.

Comprised of two

93

mental health professionals and one attorney, the arbirtrators

are selected by the parents from a court list. The panel then

considers the case, conduct its own discovery and makes a rec-

ommendation. Finally, an

uppeuls

panel

(also

three members)

would be available

to

review the work of the arbitration panel

and make a final decision,

in

the event this be necessary.

After reviewing Gardner’s book, I thought of my experi-

ence as an evaluator in the

Los

Angeles Superior Court, where

child-custody evaluations

are

used occasionally

to

mediate a

case when an evaluator assesses it to be amenable

to

mediation.

After an evaluator has completed

but

not written the investiga-

tion he or she may conduct a “feedback session” with the

parents and a court mediator. This session is used to present

findings and recommendations related to the case. If the parents

are unable to reach an agreement with the help

of

the mediator,

the evaluator writes his report and submits it to the court. Unlike

Gardner’s proposal, this approach allows for the findings and

recommendations of the evaluator

(in

written form)

to

be

utilized

in

the litigation process, if necessary. However,

in

Los

Angeles, after a child custody evaluation report has been sub-

mitted to the court, approximately

SO

percent of these cases

never go to trial. The matter is frequently resolved through

further use of court mediators and other options.

After reading about Gardner’s experiences,

1

(also

a

child

custody evaluator) was thankful for being a court employee and

working in

Los

Angeles rather than

in

private practice in New

York. For one thing, as a court employee my livelihood is not

contingent upon the collection of fees and professional liability

protection is provided by thecounty. Secondly, unlike Gardner’s

predominantly mother-custodian population, only 35 percent

of

mothers have had physical custody

in

those cases

I

have

assessed. With evaluation cases comprising less than one per-

cent of all divorce cases with children, an evaluator

in

Los

Angeles County has the luxury of working with a more gender-

balanced sample,

with

continuity of care often being a deciding

factor. Finally, when parents and attorneys stipulate to a cus-

tody evaluation by a

Los

Angeles County evaluator, they agree

not

to

call the evaluator to testify, except in rare cases requiring

the consent of the hearing officer. These regional, role-related

and public vs. private evaluator factors help reduce systemic

pressure on me and my colleagues,

in

contrast to Gardner’s

situation.

Gardner challenges

us

to question our beliefs and practices

in

an effort

to

make

the

legal system’s approach to the tragedy

of child custody disputes more humane. Even though lengthy,

this volume is well worth reading and will hopefullycause

us

all

to creatively re-examine our roles within the various family

court systems which we work.

-Reviewed by

F.

Samuel Gleason, Ph.D.

FAMILY AND CONCILIATION COURTS REVIEW/VOLUME 27, NUMBER 21DECEMBER

1989