Court implementation of mental health professionals' recommendations in contested child custody and visitation cases.

A judge deciding a contested custody case today faces a very different decision from his or her counterpart of a decade ago. Divorce laws have undergone major changes. No-fault divorce is becoming the norm. The "tender years presumption," which guided judges to award custody routinely to mother, is being replaced by a sex-neutral "best interests of the child" test.' Yet, the best-interests test, even when factors are specified by statute, remains a murky concept that is often difficult to apply. Furthermore, instead of a limited choice between two sole custodians, courts now additionally must consider varying forms of joint custody. These changes in the law have left the courts fewer simplifying rules with which to approach a contested custody case, and so have left judges with more discretion. Whereas previously a judge could routinely grant custody to the mother, now he or she must consider a wide variety of facts and possible outcomes before reaching a judgment. Social scientists, especially since the publication and wide discussion of Beyond the Best Interests o/the Child (1973)/ increasingly have offered expertise in defining the child's best interests. Given judges' wider discretion under the law, the emotional difficulties in making such profound choices affecting children, and the offering of new information about child development by social scientists, courts have (not surprisingly) looked increasingly to the mental health professions for guidance. Such guidance is often less definitive than is hoped for, however, because current limits of psychological theories, the wide variety of differing theories, and the difficulties in making valid predictions leave the application of general psychological theories to a particular case an uncertain business at best. Mnookin discusses this awkward position of the courts as functioning "in the face of indeterminacy." In the midst of this flux, the role of the mental health expert to the court has come in for both attack and for redefinition. ,5-\3 Under traditional adversarial procedures, the contending parties (typically parents) to a custody dispute each retain their own expert to conduct an evaluation and make recommendations to the court. Not surprisingly, the testimony of such party retained experts serves the interest of the party who calls the expert, and the experts for the opposing party typically reach opposing conclusions as to the child's "best interests." Some commentators in the mental health professions,7,8,13 cogently argue that mental health professionals who become involved as experts in the child custody contests are most effective and useful to the resolution of these disputes if they serve as impartial experts offering nonpartisan recommendations to the court, in effect