In family law disputes, parenting assessments – also called bilateral assessments, custody and access reports, parenting evaluations and so on – are reports prepared by mental health professionals aimed at providing parents and the court with recommendations about the parenting arrangements that are in the best interests of the children. Because these reports can be rather expensive and take a fair bit of time to complete, they are generally not prepared unless the parents find themselves in an intractable disagreement about the future care of their children or the capacity of a parent. Not surprisingly, the cases in which parenting assessments are solicited tend to be of the high conflict variety, and an assessment can be a critical aid to the judge’s thinking in reaching her decision or to breaking an impasse between the parents and reaching settlement.
There are, however, precious few mental health professionals willing to prepare these important reports. I can count on two hands the number of people, other than court-attached personnel, who conduct parenting assessments in British Columbia, and the number seems to be about the same in Alberta; some writers, like Tami Moscoe and Barbara Jo Fidler, even suggest that the number of assessors is dwindling.
The reasons for the limited, and possibly diminishing, supply of assessors are likely obvious. Although these assessments are obviously profitable – they generally cost between $6,000 and $15,000 in British Columbia, and between $20,000 and $40,000 in Alberta – those preparing them have targets painted on their foreheads, and they know it. If parenting assessments are primarily used in high conflict cases, the odds that one or both parents involved in any given assessment have a personality disorder, or another mental health concern such as bipolar disorder, are quite high, as are the chances that a parent unhappy with the assessment will file a complaint with the assessor’s governing body, regardless of the triviality or objective merit of the complaint.
Most of the parenting assessors I know well enough to ask have had to deal with at least a handful of such complaints, and none of them liked it very much. Family law has always drawn the greatest number of complaints to the law societies by subject area, but there are ways to practice law, including rigorous client intake standards, that minimize the likelihood of even specious complaints being lodged. Given the common predispositions of those involved in high conflict family law litigation, I’m not sure that parenting assessors who have the courage to express the firm opinions such assessments require have the same opportunities. Complaints, it seems to me, are inevitable, and I admire the fortitude of those mental health professionals who are prepared to accept these assignments.
Nevertheless, dealing with complaints is highly unpleasant, as is the risk, however slight, that disciplinary action may be taken. I’ve helped an assessor who worked with me on a file respond to a complaint, and the questions her college required her to answer struck me as condescending and paternalistic, excessively detailed, and demanding an extraordinary amount of unbillable time to complete. No wonder so few people are prepared to put their necks out and provide this service.
These services are, however, critically important for families and for the children who suffer their parents’ conflict. We need more mental health professionals willing to prepare parenting assessments, if for no other reasons than to reduce backlogs and exert market pressure on the fees charged for these reports, which are far less commonplace in Alberta than they are in other jurisdictions.
It seems to me that the first and easiest step toward increasing the pool of mental health professionals willing to prepare parenting assessments might be to amend the legislation and rules of court dealing with parenting assessments to provide assessors with a limited immunity from professional complaints. (Other steps might include the establishment of clear guidelines and protocols for the preparation of parenting assessments, which are oddly lacking in most jurisdictions, by the professional colleges and the colleges’ preparation of standard information sheets explaining the nature, limitations and consequences of parenting assessments, and outlining the sort of conduct which may be complained about and that which may not.) The sort of immunity I have in mind would restrain the parties to a family law case from lodging complaints against parenting assessors to their governing bodies and business associations without leave of the court until such time as all avenues of appeal have run their course.
As an alternative to the amendment of rules or legislation, however, counsel might seek to extend some protection to parenting assessors when obtaining orders for their appointment; assessors might even demand such safeguards as a condition of their service. An order such as the following would have the same net effect as an amendment.
The Applicant and the Respondent shall be and are hereby restrained and enjoined from making any complaints concerning [name of assessor], and the parenting assessment [name of assessor] is directed to prepare, to his or her governing body, to consumer protection bureaus and to any other similar organization without leave of the court until such time as the claims in dispute in this matter have been resolved and all potential appeals and appeal periods have been exhausted.
The immunity I propose would not impose an absolute bar on the ability of an individual affected by a parenting assessment to make a complaint, he or she would still have that right, although its exercise would be either delayed or subject to judicial approval. This would, I hope,
- impose a cooling off period and discourage spur of the moment, ill-considered complaints,
- relieve parenting assessors of the threat of complaints while the case is underway, and
- decrease the number of frivolous complaints made against parenting assessors, as well as the number of substantive complaints.
The lack of parenting assessors and affordable parenting assessments is an important barrier in parents’ ability to access family justice. The limited immunity I suggest is not a complete solution to this issue but it is an easy, and relatively uncontentious, start.
John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary.