Elkins Legislation & Child Custody Interviews

Reprinted from the Bar Brief, Newsletter of The Beverly Hills Bar Association, January/February 2012 Issue.

In January 2012, the next phase of the Elkins Legislation takes effect. The Judicial Council will establish procedures for the examination of child witnesses and guidelines/methods other than direct testimony for obtaining information or other input from children regarding custody/visitation issues. Two such cost effective methods available to gather this information are the brief assessment/solution focused evaluation (hereinafter BA/SFE) and the child interview. The Court must take into account the degree to which a child’s custody preference is based upon developmentally appropriate reasoning. Research has shown that children and adolescents want to be heard in matters that affect them and that they prefer to give that input voluntarily. Many wish they could talk with family members rather than professionals. (Cashmore.J. & Parkinson.P., 2008; Gallop, et al., 2000, Kelly, 2002, 2007; Smith, et al., 2003, Smart, 2002, Taylor, 2006).

The BA/SFE is less intrusive than a full evaluation due to assessing a specific topic and can provide useful information

to the court more expeditiously. The BA/SFE is beneficial in determining threat assessment/safety issues where monitored visitation may be indicated and to assess domestic violence allegations.

BA/SFEs also differ from comprehensive evaluations in that they are not designed to provide information about general family functioning and parenting capacity and certain problems and populations are not appropriately suited for it. Examples include cases involving sexual abuse, physical child abuse, alienation allegations, move away cases (unless a well defined question is asked), matters that have longstanding DCFS involvement, most special needs cases, or when there is a child with severe chronic illness.

The child interview is another method for gathering information on child preferences. This is less costly than a BA/SFE, but is much more limited in the type of information it can provide the Court. The key difference is that no recommendations are provided. Also, there are no meetings with the parents or examination of the parent/child interactions with the exception of what is witnessed in the waiting room between the parents and the child(ren). The child interviewer may comment on clinical observations between the parents and child in their report or testimony. The clinical interviewer must write a brief summary of their findings and/or present findings through testimony.

In summary, both the BA/SFE and child interview can provide valuable information to the Court. They each have benefits and drawbacks. The full 730 evaluation provides general information regarding family functioning and parental capacity. The BA/SFE provides a snapshot of the family, whereas the child interview provides a snapshot of the child.

Terri Asanovich, M.F.T., is a marriage and family therapist who specializes in divorce related issues: 730 evaluations, brief assessments, child interviews, co-parenting, reunification, and case consultations. She has offices in Sherman Oaks and West Los Angeles and can be reached at 818 906 3734 or 310 273 0500.