Saturday, January 30, 1999Custody assessors decide children's fates, but who has control over them?
Complaints common: Parents have little recourse when the 'experts' err
Robert Jones is a senior partner in a Vancouver law firm who has been honoured for his community service on behalf of the less fortunate. He is educated, articulate, and affluent. But when Mr. Jones and his wife divorced in 1994, his former spouse was awarded custody of their two daughters, then aged four and seven. He was merely given "access" to them.
Dr. Peter Jaffe.
Peter Redman, National Post / Warren Fink felt demeaned by his custody assessor: "At one point he told me, 'Fathers sometimes pinch-hit for mothers.'"
Mr. Jones (whose name has been changed to protect the privacy of his children) blames his loss on a child custody report by Dr. Michael Elterman, a Vancouver psychologist whose recommendations were later adopted by a judge.
In early 1994, Dr. Elterman wrote an 18-page report in which he recommended that sole custody of the two young children be awarded to Mr. Jones' ex-wife. But among the short list of reasons he offered was one that has left Mr. Jones angry, and confused.
"In considering the issue of sole custody to [the father], my concern is that [the mother] will interpret this to be a rejection of her as a parent and that she may out of hurt, withdraw from being an active parent to the children," wrote Dr. Elterman. It was "his hope," he said, that giving the mother "sole custody will bolster and sufficiently make secure her role with the children that she will be magnanimous in her facilitating the contact between the children and their father." The presence of Mr. Jones in his daughters' lives was, said Dr. Elterman, a "counterbalance that is needed."
"What he decided was that my former wife's ego is so insecure that the children should be employed as tools to stabilize her [mental health]," Mr. Jones told the National Post. "And because I love them so much, I would figure out some way -- even though I didn't have custody -- to protect them from the worst damage that she could do."
A second opinion, by another psychologist, described the children's mother as being "suffused with anger and resentment . . . This emotional state of rage within her, in this investigator's opinion, is a key to [the mother's] personality and is a dysfunctional state." The children, said the second psychologist, should "not be placed at risk in an emotionally unstable environment such as would appear to be the case with sole custody to their mother." This psychologist expressed her dismay that Dr. Elterman would suggest that "the best interests of the children are served by placing them in a position of caretaker to a parent."
In divorce court, however, it was Dr. Elterman's troubling logic that prevailed. Denying the mother custody would, said Mr. Justice Ian Meiklem, risk "profound harm to the children's relationship with their mother" and was therefore not in the girls' best interest. "Common sense tells me that if there is a tendency now for [the 7-year-old] to take it upon herself to comfort her mother, this tendency would assume greatly enlarged proportions if she perceived her mother as 'losing' custody," wrote the judge.
In the five years since, Mr. Jones has sought redress through the courts, a professional regulatory body, and the provincial government. His conclusion: No one is particularly interested in investigating allegations that a custody assessor may be giving the courts bad advice, and thereby shattering untold lives.
Over the past two decades, an increasing number of psychiatrists, psychologists, social workers, and therapists have, in the words of Toronto family law lawyer Jeffery Wilson, declared themselves "experts in the field of parenting." Divorcing couples who can't agree on child custody are often ordered by the court to subject themselves to an assessment conducted by one of these individuals. The couple -- advised by their respective lawyers -- often select the assessor themselves. In instances in which they can't agree, the assessor may be appointed by the judge. The evaluation process takes anywhere from a few months to a few years, and costs between $2,000 and $25,000. Mr. Wilson, who is the author of Children and the Law, estimates that judges follow assessors' custody recommendations in nine out of 10 cases.
Pauline Green, another Toronto lawyer, agrees that the assessor's conclusions are highly influential. "You know that unless you can drive a Mack truck through the report, the judge is probably going to agree with the assessor. So what's the point of going to trial and spending more money with a very, very thin hope of overturning it?"
But while a judge must formally recognize an assessors' qualifications if a matter goes to court, assessors are not required by law to have any specialized training, pass any exams, or follow any particular rules. No one evaluates them independently to ensure that they are competent and unbiased, or keeps track of how well families whose lives have been rearranged according to their dictates have fared afterward.
Mr. Jones says that when he filed an appeal "the court of appeal wouldn't look at these issues. They said this was a finding of fact by the judge and they weren't going to interfere with it."
He then complained to the College of Psychologists of British Columbia, drawing its attention to five other individuals who had concerns about the assessments Dr. Elterman had performed on them, and to a case published in the law reports. In that matter, Dr. Elterman had recommended that a father who had tried to turn his children against their mother be awarded sole custody despite his objectionable behaviour.
Mr. Jones' complaint further alleged that Dr. Elterman was running a "custody report mill." In the Jones case, it took Dr. Elterman approximately eight working days to complete his assessment, yet his CV appeared to indicate that he was conducting in excess of 200 of them a year. This, Mr. Jones wrote in his complaint, suggested "that either Dr. Elterman is misleading clients and the courts as to his practice" or it constitutes "prima facie evidence of negligent conduct," since there "is no conceivable manner in which he can produce so many reports."
In a written decision in October, 1997, the college's Professional Standards Committee acknowledged that some of Dr. Elterman's statements in the Jones case were "curious" and that others were "odd." It also declared that a custody assessment should take at least 25 hours to prepare. "By simple calculation, Dr. Elterman's statements would suggest completion of over 250 custody evaluations in one year, about one evaluation per day, an implausible achievement," said the committee.
Nevertheless, it concluded unanimously that he had violated no ethical standards and that Mr. Jones' complaint should be dismissed.
Dr. Elterman told the National Post that his CV (which was attached to Mr. Jones' custody report) had lumped together full-fledged custody assessments with shorter single-interview consultations to arrive at the number that had so concerned the college. "Court reports are not necessarily custody assessments. I guess that once I explained to the college that it was never custody cases, but all cases combined, then I think they were satisfied.
"What you have to understand," Dr. Elterman said, "is that, in every single [custody] case, the nature of the work is such that somebody thinks you've done a wonderful job and that you're very smart, and somebody thinks that you've done a lousy job and that you're stupid."
Upset that he had not been permitted to address the college's complaints committee directly or to respond to Dr. Elterman's submissions, Mr. Jones appealed to the college's Professional Standards Appeal Committee. His request for a transcript of the committee's deliberations was denied on the grounds that it might expose Dr. Elterman to civil liability. Mr. Jones' argument that the college has a responsibility to protect the public rather than its own members fell on deaf ears. In March, 1998, the appeal committee concurred with the college's earlier decision and dismissed the complaint.
Dumbfounded that no one seemed to care that a psychologist might have consigned two young children to a dysfunctional home when an alternative was readily available, Mr. Jones wrote letters outlining his concerns to the British Columbia health ministry, the attorney general, and the Ministry of Children and Families.
Last June, the latter ministry informed him that, "since the information you provided in your letter did not identify any case of non-reporting of child abuse, the Ministry for Children and Families will not be reviewing your concerns further."
Eight months later, the other two ministries have yet to reply, despite Mr. Jones' numerous follow-up letters.
"I spent $300,000 trying to get justice," he says. Between fees to the psychologists and lawyers and court costs, "I spent $300,000 to find out the system is insane."
Dr. Edwin Kramer, the registrar of the College of Psychologists of British Columbia, acknowledges that the largest group of complaints it receives from the public each year involve custody assessments. "As a result of these kinds of complaints," he says, "written standards for custody and access were implemented six months ago." And he says he believes "the college is pursing all the avenues it can to protect the public." In Ontario, Dr. Peter Jaffe, director of the London Custody and Access Project, says that while "it's probably fair to say that there's some variation across the country . . . Ontario is probably a leading province" in terms of assessor accountability. "I know personally that the college of psychologists takes this very seriously."
But this is cold comfort to those who feel their lives have been irreparably harmed by a bad assessment, and the complaints are legion. Parliament's Joint Committee on Child Custody and Access heard disturbing testimony about unqualified assessors and biased reports during its cross-country hearings last year. Jeffery Wilson says he has encountered psychologists who "reward the wrongdoer. Not intentionally, but they'll say that the bonding between a child and a parent is so great, that even though that parent has done wrong [by trying to alienate the child from the other parent, for example] to split the kid from that parent would cause more damage."
Around the same time that Mr. Jones' marriage was dissolving, Warren Fink and his now ex-wife hired the then prominent Ontario custody assessor Dr. Mario Bartoletti. A 20-year veteran of a large police force, Mr. Fink was described by a judge as a highly involved father who took full responsibility for the couple's three children when not at work. He was active in the children's sporting activities and had won a local Hockey Coach of the Year award for the 1992-93 season.
In an August, 1994, memorandum of understanding between lawyers representing the Fink couple and Dr. Bartoletti, the assessor said the "assessment costs are estimated at being between $3,000 and $4,000 (plus G.S.T.)." He further predicted that "the assessments procedures will be completed in approximately three months." To Mr. Fink's dismay, Dr. Bartoletti did not deliver his report until August, 1995, and billed the couple $7,000.
More distressing, says Mr. Fink, was the fact that he was expected to make a case as to why his children should spend large amounts of time with him, while his wife, he believes, did not face the same expectation. As evidence, he points to the first line in Dr. Bartoletti's report. It reads: "The primary issue of concern to both of the parents in this matter has become how much time the children should be spending with their father."
"Bartoletti had a set of assumptions regarding the interaction of men and women in marriage that favoured women as primary caregivers," alleges Mr. Fink. "He simply plugged our family into those assumptions [even though] we did not fit his predetermined profile. At one point he told me that 'fathers sometimes pinch-hit for mothers.' "
Dr. Bartoletti's CV indicated that he was then the chair of the Ontario Interdisciplinary Committee of Custody/Access Assessors. Especially in light of this leadership role, Mr. Fink has grave concerns about some of Dr. Bartoletti's practices. He alleges that on at least two occasions Dr. Bartoletti insisted on holding meetings in restaurants, despite the exceedingly private nature of the subject matter under discussion.
"I wanted desperately to demonstrate that I was willing to co-operate in the mistaken belief that it would make a significant difference in the outcome of the assessment," Mr. Fink says, explaining why he agreed to the meetings at the time. "But I believe this demand to be highly unprofessional."
Dr. Bartoletti, who closed his Canadian office three years ago and moved to Florida, told the National Post that client confidentiality prohibits him from discussing individual cases. He says he would only hold meetings in restaurants "with the permission of the client. If the clients refused, they didn't have to." He also says it was "absolutely not common" for an assessment to take four times as long as he originally estimated, or to cost twice as much.
Mr. Fink, for his part, says he felt "demeaned" by the assessment process and believes it exacerbated conflict between him and his former spouse. "Bartoletti admits that there were, in fact, errors in his report," says Mr. Fink, referring to a November, 1995, letter to Mr. Fink's lawyer in which Dr. Bartoletti wrote: "There were some factual errors, which need correction. However, I do not feel that these errors are of a nature which would impact on my overall evaluation or the recommendations which were made."
Mr. Fink is angry that Dr. Bartoletti has "never filed a supplementary report correcting those mistakes. I had thought he would be required to testify in court and I would have been afforded the opportunity to cross-examine him in the witness box under oath. However, neither I nor [Mr. Fink's ex-spouse] were willing to subpoena the man and pay his fees and expenses to attend court to testify. Essentially, his report went unchallenged."
In October, 1996, a judge awarded sole custody of the children to Mr. Fink's ex-wife.
Jack Smith (not his real name), a school administrator, also had inaccurate information turn up in his 1988 custody report. His assessment was conducted by Dr. Gary Austin and Dr. Marlies Sudermann. At the time, Dr. Austin was the coordinator of the London Custody and Access Project.
During interviews with the assessors, Mr. Smith's now ex-wife falsely claimed that Mr. Smith had admitted, during marriage counselling, that he had been physically abusive to both her and the children. The assessors included this information in their report without bothering to interview the counsellor in question -- who later denied that Mr. Smith had ever made such statements.
Mr. Smith says that although his former spouse left him for another man, the assessment report inaccurately indicated that it was Mr. Smith who was involved in an extramarital affair.
"You can imagine how I appeared to the judge," Mr. Smith says now. "According to the assessors, I was a confessed abuser living common-law. Who do you think got the kids?"
Mr. Smith complained to the Ontario Board of Examiners in Psychology (the forerunner to the College of Psychologists of Ontario) about his assessment. In early 1991, he was informed that the Complaints Committee had investigated the matter and concluded that the assessors had, indeed, committed "errors." With respect to the abuse allegations in the report, the Board of Examiners told Mr. Smith that "Drs. Austin and Sudermann have been reminded that it is not acceptable to present second hand information in a custody report without also including a statement from the primary source as to whether or not the information is accurate."
The committee was also "concerned about the confusion in the report with respect to [Mr. Smith's] living arrangements . . . To this end, it has stressed more attention to reporting information clearly and accurately . . . The Committee informed Dr. Austin and Dr. Sudermann that in the future they must avoid similar mistakes. The Committee decided that no further action was warranted."
While the Board appeared to consider such errors trivial, these inaccuracies had a profound impact on Mr. Smith's life. He says his ex-wife, emboldened by being awarded sole custody, discouraged his children from seeing him. Only recently has he managed to re-establish tentative relationships with them.
"That report cost me seven years out of my children's lives," he says now. "From 1989 until 1996, I had virtually no contact with three of my four children. I missed all their graduations, the chance to go to football games with them. My parents weren't allowed to see their grandkids."
Dr. Jaffe insists matters have improved in recent years. These days, he says, people like Mr. Smith have one more avenue of appeal in Ontario's Health Professions Board. He also rejects the notion that judges are overly influenced by assessors. "The judges in this region aren't rubber stamps. If there's a serious concern about how the assessment was conducted, or the nature of the findings, I haven't found lawyers or judges shy to challenge that." If lawyers believe judges go along with assessors 90% of the time, says Dr. Jaffe, "then wouldn't a good lawyer be very cautious about who does an assessment?"
In the opinion of Mr. Jones, however, current safeguards aren't nearly stringent enough considering the lives that are at stake. "There are children that are being destroyed by this process," he says, "and it's for money. Every day I see people play politics with and profit from the pain of children, and parents."
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