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The Troubling Admission of Supervised
Visitation Records in Custody Proceedings 

Download pdf article here:supvisitation.pdf

Nat Stern, Florida State University College of Law
Karen Oehme, J.D., Temple Law Review

Copyright © 2002 Minnesota Center Against Violence and Abuse
10/21/2002

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Table of Contents

Introduction ................................................................................................................................ ... 2

I. The Growing Call for Supervised Visitation Programs ............................................................ .. 3

II. Misguided Reliance on Visitation Records in Custody Proceedings ...................................... .7

III. Evidentiary Objections to Admission of Observation Reports for Determining Custody ..... 20

IV. Confining the Use of Observation Reports in Custody Proceedings: A Proposed Model ..... 25

Conclusion .................................................................................................................................... 33

Appendix A ................................................................................................................................ . 35

Appendix B ................................................................................................................................ . 39

Appendix C ................................................................................................................................ . 40

Introduction

Supervised visitation programs provide services to courts in visitation and custody disputes in
which a parent alleges physical or sexual abuse, domestic violence,¹ or other harmful behaviors
against a spouse or partner. Hailed as a welcome tool in the judicial management of high-conflict
family court cases,² these programs are garnering increased attention from legislatures, judges, and
lawyers nationwide. The flurry of activity focused on funding and developing these programs,
however, has obscured evidentiary questions arising from the visitation reports created at each
visit. The widespread misuse of visitation reports, this article argues, threatens to compromise both
the interests of abused children and the safety of domestic violence victims, whom supervised vis-
itation was developed to protect.

Part I of this article explores the purposes of supervised visitation programs and the legal com-
munity's call for their development. Part II describes the efforts of legislatures and provider networks
to develop standards and guidelines for the administration of supervised visitation services. Part
III addresses issues surrounding the use and admissibility of observation reports and other reporting
tools routinely kept by supervised visitation programs. Focusing on disputed custody cases with

¹See, e.g.,Amy B. Levin, Comment, Child Witnesses of Domestic Violence: How Should Judges Apply the Best Interests of the Child Standard in Custody and Visitation Cases Involving Domestic Violence?, 47 UCLA L. Rev. 813, 819 (2000) (advocating that courts mandate supervised visitation for batterers and their children so that children can be safe and batterers can have continuing contact with their children).

²See generally Bonnie S. Newton, Visitation Centers: A Solution Without Critics, Fla. B.J., Jan. 1997, at 57 (describing
supervised visitation as "solution without a downside"); Sarah H. Ramsey, The Wingspread Report and Action Plan: High-
Conflict Custody Cases: Reforming the System for Children, 39 Fam. & Conciliation Cts. Rev. 146, 152 (2001) (listing su-
pervised visitation among services that should be available to all families without regard to income); Debra A. Clement,
Note, A Compelling Need for Mandated Use of Supervised Visitation Programs, 36 Fam. & Conciliation Cts. Rev. 294,
311 (1998) (concluding that "[t]here is no better service that state legislatures could perform for their most vulnerable
children than to make supervised visitation programs available to every troubled family that can benefit from them"). One
author has recommended: "Basic infrastructure improvements should be instituted to reduce opportunities for harmful
conflict. Every community that has a public school should also have a center where safe, supervised visitation, waiting, and
transfer can be accomplished, if necessary, without the necessity for contact between conflicted parents." Thomas E. Schacht,
Prevention Strategies to Protect Professionals and Families Involved in High-Conflict Divorce, 22 U. Ark. Little Rock L.
Rev.565, 581 (2000).

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

allegations of parental unfitness,³ this section examines the tendency of courts to call for program staff to make explicit evaluations based on visit interaction and the improper use of so-called "objective records." Finally, Part IV proposes a standard limiting the circumstances under which courts may admit program records into evidence in custody proceedings.

I.The Growing Call for Supervised Visitation Programs

For years, judges have asked parties litigating custody cases to find "neutral third parties," generally
a family member or close friend, to supervise visitation. This can be a daunting task for a volunteer,
however, given the time and energy required of a visitation supervisor. Even if a family member
or friend agrees to supervise visits, he or she may be vulnerable to the noncustodial parent's demands
and threats, rendering the supervision ineffective.⁴ There is also a risk that the volunteer may simply
not believe the allegations made about the visiting parent and may decide to only loosely monitor
the visit, further endangering the child.⁵ Supervised visitation programs⁶ address this problem by
providing ongoing contact between a child and his or her noncustodial⁷ parent in the presence of
a neutral third party in cases where physical or sexual abuse, neglect, parental dysfunction, or do-
mestic violence has been alleged.⁸ These programs often include a variety of services⁹ ranging
from one-on-one supervision with a monitor continuously in the room, to visits in large rooms
monitored by several supervisors.¹⁰ Expertise of staff also varies; because of limited resources,
many programs must rely heavily on volunteers, students, and paid community members to provide
monitoring of visits.¹¹ The level of security present at programs also varies, with only some programs
offering on-site private security officers or law enforcement personnel.¹²

³This article addresses supervised visitation in custody disputes, not the juvenile court or child welfare ("dependency")
setting in which children have been removed from their homes and placed in foster care or relative placement.
⁴Karen Oehme, Supervised Visitation Programs in Florida: A Cause for Optimism, A Call for Caution, Fla. B.J., Feb. 1997,
at 50.

⁵Id.

⁶Supervised visitation programs may be referred to by various terms, including supervised access, e.g., Janet R. Johnston
& Robert B. Straus, Traumatized Children in Supervised Visitation: What Do They Need?, 37 Fam. & Conciliation Cts.
Rev. 135, 135 (1999), and family visitation centers, e.g., Minn. Stat. Ann. § 119A.37 (West 2001).
⁷Some states refer to the parent with whom the child primarily resides as the "custodial parent." E.g., Mo. Ann. Stat. §
452.376 (West 2002); Nev. Rev. Stat. Ann. § 125C.200 (Michie 2001); Margaret B. v. Jeffrey B., 435 N.Y.S.2d 499,
500 (Fam. Ct. 1980); Eichelberger v. Eichelberger, 345 S.E.2d 10, 11 (Va. Ct. App. 1986). Other states use the term "resid-
ential" parent. E.g., Del. Code Ann. tit. 13, § 722 (2001); Ohio Rev. Code Ann. § 3109.051 (Anderson 2001).
⁸See, e.g., Barbara E. Flory et al., Note, Supervised Access and Exchange: An Exploratory Study of Supervised Access and
Custody Exchange Services: The Parental Experience, 39 Fam. Ct. Rev. 469, 473 (2001) (listing circumstances warranting
referral to supervised visitation program).

⁹See Robert B. Straus, Supervised Visitation and Family Violence, 29 Fam. L.Q. 229, 234 (1995) (discussing range of services that comprise supervised visitation).

¹⁰Kathryn Marsh, The Services, in New York Society for the Prevention of Cruelty to Children Professionals' Handbook
on Providing Supervised Visitation 31, 35 (Anne Reiniger ed., 2000) [hereinafter NYSPCC Handbook].
¹¹Nancy Thoennes & Jessica Pearson, Supervised Visitation: A Profile of Providers,37 Fam. & Conciliation Cts. Rev. 460,
464, 475 (1999).

¹²See Marsh, supra note 10, at 35 (stating that supervised visitation program staff may include security guards).

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Some visitation programs additionally offer monitored exchange:¹³ i.e., monitoring the child's transfer from the custodial parent to the noncustodial parent at the start of visitation and back to the custodial parent at the end of the visit.¹⁴ This service, as well as other ancillary services such as phone call monitoring and parent education classes, are helpful to courts in addressing the needs of high-conflict families and families in which domestic violence is alleged.¹⁵

In making decisions regarding visitation and custody, trial courts use the "best interest of the child"
standard,¹⁶ and are vested with a wide discretion in resolving custody and visitation issues.¹⁷
Resolving custody disputes, rarely considered an easy task by judges, is further complicated in
"high-conflict" cases. In these cases, couples engage in extensive, ongoing litigation, often alleging
mistreatment of the child by the other parent.¹⁸ Experts disagree whether the definition of "high-
conflict" should include cases marked by domestic violence;¹⁹ as one author has put it, however,

¹³Monitored exchanges are sometimes referred to as monitored transfers, e.g., Marsh, supra note 10, at 32, or exchange
monitoring, Minimum Standards for Supervised Visitation Program Agreements § I(A)(7) (Fla. Sup. Ct. 1999) [here-
inafter Fla. Standards], available at http://www.flcourts.org/osca/divisions/family/bin/svnstandard.pdf.
¹⁴See,e.g., Cal. Rules of Ct., Standards of Judicial Admin. § 26.2(b) (2002) [hereinafter Cal. Standards] (specifying
that standards for providers of supervised visitation applicable to supervision of exchanges); Child Exch. and Visitation
Ctr. Guidelines § 2.3 (Kan. Att'y Gen. 1999) [hereinafter Kan. Guidelines] (defining exchange/visitation supervisor),
available at http://www.ink.org/public/ksag/contents/children/cevc-6.htm; Fla. Standards, supra note 13, § I(A)(7)
(defining exchange monitoring as "the supervision of a child's movement from the custodial to noncustodial parent at the
start of noncustodial parent/child visit or from the noncustodial parent back to the custodial parent at the end of visit").
¹⁵See M. Sharon Maxwell & Karen Oehme, Strategies to Improve Supervised Visitation Services in Domestic Violence
Cases, Violence Against Women Online Resources (Oct. 2001) (noting that while historically such services were provided
in child welfare situations, recently there has been increased reliance upon supervised visitation in family law cases involving
domestic violence), at http://www.vaw.umn.edu/FinalDocuments/CommissionedDocs/strategies.asp.
¹⁶The "best interest of the child" standard is codified in almost all United States jurisdictions. See Appendix A (listing
statutes codifying standard). The best interest of the child standard is a broad, flexible test that allows judges to fully consider
the circumstances of children when making decisions in disputed custody cases. States develop their own criteria to guide
judges in determining parental custody and visitation. Courts base their decisions on an evaluation of enumerated factors
that affect the welfare of the child. Such factors can include, for instance, the wishes of the child's parent or parents as to
his or her custody; the interaction and interrelationship of the child with his or her parent or parents, and his or her siblings;
the child's adjustment to his or her home, school, and community; the character and circumstances of all individuals involved;
the need to promote continuity and stability in the life of the child. See Idaho Code § 32-717 (Michie Supp. 2002), for
a partial list of these factors.

¹⁷See, e.g., Turoff v. Turoff, 527 P.2d 1275, 1278 (Haw. 1974) (declining to set aside family court's factual findings without showing of clear error); In re Marriage of Diehl, 582 N.E.2d 281, 294 (Ill. App. Ct. 1991) (holding that showing of manifest injustice to child or parent was needed to overturn visitation decisions).

¹⁸See Schacht, supra note 2, at 565 (discussing gravity of high-conflict divorce); see also Newton, supra note 2, at 57 (asking rhetorically: "In a time of crowded court calendars, how can a judge sort out the truth on totally conflicting testimony about past events to determine whether allegations of child endangerment are genuine?").

¹⁹See Andrew Schepard, The Evolving Judicial Role in Child Custody Disputes: From Fault Finder to Conflict Manager
to Differential Case Management, 22 U. Ark. Little Rock L. Rev. 395, 413 (2000) (noting that while some believe high-
conflict divorce includes domestic violence, others believe term's use should be limited to situations of repetitive litigation).
Some define high-conflict divorce as when: (1) children's opportunities to maintain relationships with both parents are
precluded by parental behaviors; (2) ongoing adult interpersonal conflict exposes children to negative messages and inap-
propriate role expectations; (3) on-going interparental verbal or physical conflict exposes children to potential emotional
or physical harm; (4) child physical or sexual abuse or neglect is alleged; or (5) domestic violence exposes adult victims to
potential physical harm. Flory, supra note 8, at 469. Others define high-conflict divorce as when: (1) conflicts last more
than two years after divorce; (2) children have been enmeshed in parental dispute; and (3) parents have poor coping strategies.
Barry Bricklin & Gail Elliot, Qualifications and Techniques to be Used by Judges, Attorneys, and Mental Health Profes-
sionals Who Deal with Children in High Conflict Divorce Cases, 22 U. Ark. Little Rock L. Rev. 501, 501 (2000).

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

divorce litigation involving allegations of child abuse or neglect by a parent qualifies as "highconflict" by anyone's definition.²⁰ These cases impose enormous strain on the judicial system,²¹ and courts have recognized the need for judicial intervention and special services for the children who are damaged by their parents' behavior.²²

A. Effects of Domestic Violence on Children

Supervised visitation programs are particularly important in the context of cases where there are allegations of domestic violence or child abuse. The tragic effects of domestic violence on children have been well-documented,²³ with studies showing that between fifty and seventy percent of batterers also abuse their children.²⁴ Even those children who do not suffer direct physical abuse suffer psychological harm from witnessing violence between their parents.²⁵ In response to these concerns, the vast majority of states have legislation requiring judges to consider domestic violence when making custody determinations, either as a factor in determining a child's best interest, or as a rebuttable presumption against custody for batterers.²⁶

When faced with allegations of parental abuse or violence, courts often applaud the availability of
visitation programs in their community.²⁷ These courts feel relieved that they are no longer forced
to choose between: (1) no contact between the parent and child, which may damage the parent-
child bond; and (2) unrestricted contact, which risks further abuse to the child.²⁸ Commentators
have expressed a variety of views on the appropriate and inappropriate reasons to order supervised

²⁰Schepard, supra note 19, at 414.

²¹Seeid. at 399 (noting statistics showing that, in 1995, domestic relations cases made up one-fourth of all civil filings).

²²See Judith S. Kaye & Jonathan Lippman, New York State Unified Court System: Family Justice Program, 36 Fam. &
Conciliation Cts. Rev. 144, 144 (1998) (stating, as judges, that "the skyrocketing caseloads . . . are not likely to diminish").
²³See, e.g., Am. Psychol. Ass'n, Violence and the Family 70-71 (1996) (reporting that exposure of children to violence at
home, even if they have not been physically or sexually abused themselves, typically produces posttraumatic stress symptoms);
Barbara J. Hart, Children of Domestic Violence: Risks and Remedies, Minn. Ctr. Against Violence & Abuse (providing
overview of studies showing that majority of children from violent homes observe violence inflicted by their fathers upon
their mothers, and that children who witness domestic violence experience behavioral somatic or emotional problems sim-
ilar to those experienced by physically abused children), at http://www.mincava.umn.edu/hart/risks&r.htm (last modified
Nov. 8, 2000).

²⁴Janice A. Drye, The Silent Victims of Domestic Violence: Children Forgotten by the Judicial System, 34 Gonz. L. Rev. 229, 230 (1998); see Pauline Quiron et al., Protecting Children Exposed to Domestic Violence in Contested Custody and Visitation Litigation,6 B.U. Pub. Int. L.J. 501, 508-09 (1997) (citing sources that show that more than half of all men who abuse their partners abuse their children and an additional eighty percent of batterers threaten to abuse their children). ²⁵Drye, supra note 24, at 231-32. See generally Philip C. Crosby, Case Comment, Custody of Vaughn: Emphasizing the Importance of Domestic Violence in Child Custody Cases, 77 B.U. L. Rev. 483 (1997) (providing an informative case study on domestic violence and its effect on adult and child victims).

²⁶Some states have a rebuttable presumption against custody for batterers. See Appendix B (listing statutes). Other states list domestic violence as one factor in determining a child's best interest. See Appendix C (listing statutes).
²⁷W. David Dugan, A View From the Bench, B. & Bench Visitation Rep., Summer 2001, at 2-3 (discussing how "critical" supervised visitation is to judge trying to serve goals of visitation).

²⁸See, e.g., Margaret Tortorella, When Supervised Visitation Is in the Best Interests of the Child, 30 Fam. L.Q. 199, 200
(1996) (discussing level of contact alternatives). Commentators have stressed the importance of weighing the child's need
for ongoing contact with the stress that contact may cause the custodial parent and the negative effects on the child. See,

e.g., Janet R. Johnston et al., Ongoing Postdivorce Conflict: Effects on Children of Joint Custody and Frequent Access, 59 Am. J. Orthopsychiatry 576, 588 (1989) (finding that the more often children have contact with both parents in distressed families, the more problematic is their adjustment).

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

visitation.²⁹ Most agree, however, that while the court is investigating allegations against the parents, or providing crucial services to the family members,³⁰ the neutral setting of supervised visitation programs offers crucial advantages over no-contact orders or orders allowing family members or friends to supervise visits.³¹

B. Intervention Through the Use of Supervised Visitation

Supervised visitation has been welcomed as "an essential component of an integrated community
intervention system" to eliminate domestic violence and protect its victims,³² and described as an
"equitable remedy serving the dual purpose of preserving the constitutionally protected and emo-
tionally vital parent-child relationship while protecting the child and sometimes, the other parent."³³
The American Bar Association has approved a policy encouraging courts to "provide or identify
and make use of locations" in which supervised visitation can safely occur.³⁴ Attorneys are urged
to become leaders in their communities and to encourage the development of supervised visitation
programs to promote the safety of parents and children.³⁵ It is not surprising, then, that such programs
have burgeoned over the past decade. A national study identified ninety-four supervised visitation
programs in 1999.³⁶ The Supervised Visitation Network of visitation providers currently lists 240

U.S. members and an additional thirty-three members providing these services abroad.³⁷

Although commentators have long lamented the lack of adequate funding for supervised visitation
services,³⁸ these programs continue to emerge, sustained by (though sometimes only marginally)

²⁹See, e.g., Janet R. Johnston, Building Multidisciplinary Professional Partnerships with the Court on Behalf of HighConflict Divorcing Families and Their Children: Who Needs What Kind of Help? 22 U. Ark. Little Rock L. Rev. 453, 477, 478 (2000) (arguing that supervised visitation should not be used as "a dispositional alternative when an indigent family cannot afford other types of services," or to ensure an abusive parent's right of access to the child when the child is chronically uncomfortable and distressed with that access).

³⁰These services can include substance abuse evaluations and treatment, counseling, victim and batterer services, sexual offender evaluations, and parent education classes. Jessica Pearson & Nancy Thoennes, Supervised Visitation: The Families and Their Experiences, 38 Fam. & Conciliation Cts. Rev. 123, 134 (2000).

³¹See Newton, supra note 2, at 57 (advocating advantages of supervised visitation). Victim advocates have long acknowledged
the risks inherent in having family members-who may tolerate inappropriate behavior-provide supervision. See, e.g., ABA
Comm. on Domestic Violence, Policy OOA109A (2000) [hereinafter ABA Policy] (explaining that allowing family members
to conduct supervised visits does not adequately address safety, and places the family member at risk of violence or manip-
ulation by abuser).

³²Model Code on Domestic and Family Violence § 406 cmt. (Nat'l Council of Juv. & Fam. Ct. Judges 1994). "Visitation Centers may reduce the opportunity for retributive violence by batterers, prevent parental abduction, safeguard endangered family member, and offer batterers continuing contact and relationship with their children." Id.
³³Clement, supra note 2, at 297.

³⁴ABA Policy, supra note 31.

³⁵Fam. Violence Project, Nat'l Council of Juv. & Fam. Ct. Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 Fam. L.Q. 197, 224 (1995).

³⁶Thoennes & Pearson, supra note 11, at 463.

³⁷Telephone Interview with Nancy Fallows, Executive Director of the Supervised Visitation Network, Supervised Visitation Network (Mar. 12, 2002) (on file with authors).

³⁸See, e.g., Katherine M. Reihing, Protecting the Victims of Domestic Violence and their Children after Divorce: The
American Law Institute's Model, 37 Fam. & Conciliation Cts. Rev. 393, 404 (1999) (criticizing practicality of A.L.I. model
statute on child custody for suggesting low-cost court-ordered services like supervised visitation for families affected by
domestic violence without acknowledgement of lack of necessary funding for developing and providing such services);
Clement, supra note 2, at 306 (arguing that "demonstrated inability of most supervised visitation programs to endure, let
alone thrive, because of inadequate financial resources provides a compelling reason for state funding").

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

a pastiche of funding sources.³⁹ The federal Violence Against Women Act of 2000⁴⁰ provided $15 million for the development of supervised visitation pilot programs, ensuring new services for visitation in situations involving domestic violence, child abuse, sexual assault, and stalking⁴¹ for 2002 and 2003.⁴² These efforts ensure that more supervised visitation programs will emerge in the near future. The continued growth of these programs necessitates a critical examination of how the court system has used the programs in custody cases.

II. Misguided Reliance on Visitation Records in Custody Proceedings

The Supervised Visitation Network (SVN) is a multi-national non-profit membership organization
consisting of a network of agencies and individuals who are interested in assuring that children can
have safe, conflict-free access to parents with whom they do not reside.⁴³ In 1996, SVN developed
a set of standards and guidelines for the provision of such services.⁴⁴ These policies were intended
to focus on quality assurance and to serve as a resource for the development of future programs,
as well as for the establishment of accreditation, licensing, and funding standards.⁴⁵ No state appears
to have incorporated the standards in full. Several states, however, have created legislation, much
of which resembles SVN guidelines, to define the tasks of supervised visitation programs, coordinate
the provision of those services, and set standards for the services.⁴⁶ Other states have developed

³⁹See Julie Kunce Field, Visits in Cases Marked by Violence: Judicial Actions That Can Help Keep Children and Victims
Safe, 35 Fam. Ct. Rev. 23, 26 n.26 (1998) (describing federal funding sources); Maxwell & Oehme, supra note 15 (men-
tioning Victim of Crime Act funds, Rural & Child Victimization grants, and local grants); Thoennes & Pearson, supra note
11, at 464, 475 (noting that most programs rely on volunteers because they lack resources for paid staff and security).
⁴⁰Pub. L. No. 106-386, Div. B, 114 Stat. 1509 (codified as amended in scattered sections of 42 U.S.C.).
⁴¹42 U.S.C.A. § 10420(a) (West Supp. 2002). The Safe Havens for Children Pilot Programs provides for the awarding
of: [G]rants to States, units of local government, and Indian tribal governments that propose to enter into or expand the
scope of existing contracts and cooperative agreements with public or private nonprofit entities to provide supervised visit-
ation and safe exchange of children by and between parents in situations involving domestic violence, child abuse, sexual
assault or stalking.

⁴²Id. § 10420(e); see generally Office of Justice Programs, U.S. Dep't of Justice, Safe Havens: Supervised Visitation and Safe Exchange Grant Program (2002) (providing application and program guidelines for fiscal year 2002).
⁴³About Supervised Visitation Network, at http://www.svnetwork.net/AboutSVN.html (last modified Aug. 2, 2002). Private providers of child access, both for-profit and non-profit, can be members of the Supervised Visitation Network. See id. (listing who members may be). Currently, SVN membership is entirely voluntary, as no state requires SVN membership for its visitation programs. See id. (discussing membership without mentioning any state requirements).
⁴⁴Supervised Visitation Network, Standards and Guidelines for Supervised Visitation Network Practice (2000) [hereinafter SVN Guidelines], at http://www.svnetwork.net/StandardsAndGuidelines.html.

⁴⁵Id. at 126, § 1.2.

⁴⁶See, e.g., Cal. Fam. Code § 3200-3203 (West Supp. 2002) (directing Judicial Council to develop uniform standards
of practice for providers of supervised visitation, found in Cal. Standards, supra note 14, § 26.2); Conn. Gen. Stat.
§ 17a-101(l) (2001) (directing state agency to establish supervised visitation centers); Haw. Rev. Stat. Ann. §
571-46 (Michie 2001) (specifying that supervised visitation center provide secure setting, specialized procedures, and su-
pervision by person trained in security and avoidance of family violence); Kan. Stat. Ann. § 75-720 (2001) (directing
Kansas Attorney General to coordinate and cooperate with local governmental agencies in providing child exchange and
visitation centers); Minn. Stat. Ann. § 199A (West 2001) (establishing grants for "parenting time" centers); N.J. Stat.
Ann. § 2A:12-11 (West 1987) (establishing statewide supervised visitation program). Other states allow the courts to
order families to use visitation programs. E.g., Mass. Gen. Laws Ann. ch. 209A, § 3(b) (West. Supp. 2002). In 2001,
the Louisiana Senate established a Child Visitation Center Review Commission to study the feasibility of establishing child
visitation centers in the state. 2001 La. Res. 4 (2001).

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

standards that are judicially or administratively, but not legislatively, mandated.⁴⁷ Legislatures and providers acknowledge that minimum and best practice standards are necessary for the safe, effective provision of supervised visitation.⁴⁸

Existing legislative standards have focused on the visit itself, not evidence produced during the
visit that will affect the litigation that resulted in the supervision. It is entirely understandable that
providers of this service would concentrate on preparing children and parents for visits, training
staff, utilizing a child-friendly site, and providing safety measures. There exists, however, a gap
between practices of keeping and using visit records and the lack of judicial and legislative standards
governing their admissibility. The resulting inappropriate reliance on these records in custodial
proceedings can cause unintended consequences directly adverse to the best interest of the children
and their custodial parents.

A. The Evidence Produced from Supervised Visits

When a noncustodial parent is referred to a visitation program, he or she will be presented with the
rules of the program.⁴⁹ In court-ordered cases, these rules are generally incorporated into the court
order by reference.⁵⁰ The custodial parent will bring the child to the program (optimally through
a separate area), and staff will accompany the child to the visit.⁵¹ Observation reports completed
by staff are used to describe the visit. Detailed observations can be used;⁵² other possible instruments
include a form in checklist format⁵³ and a bubble-sheet.⁵⁴ According to the SVN Guidelines, obser-
vation reports should at least detail the following: identifying client information, information about
who provided the supervision, the date, time, and duration of contact, who attended the visitation,
an account of critical incidents, a summary of activities by the parent and child, comments or requests
made by the parents or child, and interventions made during the contact, including early termination

⁴⁷E.g., Fla. Standards, supra note 13 (judicially mandated); Kan. Guidelines, supra note 14 (administratively mandated);
see Kan. Stat. Ann. § 75-720 (directing attorney general to provide for child exchange and visitation centers). Some
states do not even have formal standards to govern their programs. See, e.g., 2001 La. Res. 4 (authorizing study of feasibility
of establishing child visitation centers). Other states' programs operate by internally produced procedures, rather than rules
required by funding sources, or standards developed by an umbrella social services agency under which the supervised
visitation program operates. Vermont, for example, as of this writing, has nine providers (not all of whom are members of
SVN) who collaboratively developed their own procedures, which they all in good faith agree to follow. Telephone Interview
with Ann Marie Roth, Executive Director, Family Connection Center, Burlington, Vt. (Mar. 18, 2002) (on file with authors).
⁴⁸See, e.g., 42 U.S.C.A. § 10420(c)(4) (West Supp. 2002) (stating that Attorney General shall award grants to applicants
that "prescribe standards by which the supervised visitation or safe visitation exchange will occur").

⁴⁹See Nadine Blaschak-Brown, Providing the Service, in NYSPCC Handbook, supra note 10, 67, 74 (stressing that clients be presented with guidelines so that they have clear understanding of acceptable behaviors and expectations).
⁵⁰Numerous examples of common court orders of this type are on file with authors.

⁵¹See Maureen Sheeran & Scott Hampton, Supervised Visitation in Cases of Domestic Violence, Juv. & Fam. Ct. J., Spring 1999, at 13, 17 (suggesting methods for precluding contact between parents by using separate arrival and departure times, parking lots, entrances, and waiting areas).

⁵²E.g., Fla. Standards, supra note 13, IV(C).

⁵³Blaschak-Brown, supra note 49, at 79. Some providers use checklists in an effort to be objective. But checklists do not allow for detailed information about parent-child interaction. Also, a "yes/no" format that includes the statement "Child was happy to see his/her parents" has not gotten around the problem of subjectivity. Rather, the statement should read, "The child (laughed) (smiled) (cried) on seeing the visiting parent." Id.

⁵⁴Erma's House, in Columbus, Ohio, uses a fill-in-the-blank bubble-sheet form that is filled in by monitors, with spaces for free response. The University of Dayton analyzes the information for statistic-keeping purposes. Forms are available at 1024 Brown Street, Dayton, OH 45409, attn. Peggy Seboldt.

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

of the visit with the reason for the termination.⁵⁵ Many programs use narrative documentation,⁵⁶ or detailed observations,⁵⁷ describing the behavior and statements of the visitation participants. Many visitation programs also use video cameras⁵⁸ to record visits to supplement observation reports. The following scenario helps to clarify how the process develops:

Fred and Marie Jones have a four-year-old daughter, Jennifer. Marie has filed for divorce and
asked the court for a restraining order against Fred; she alleges that he punched and kicked her
during the marriage, and has been threatening her and stalking her since she left the marital home
a month ago. Marie also alleges that Jennifer saw some of the violence in the home, and that she
is afraid that Fred will harm Jennifer. The court enters the injunction against domestic violence
and tells Fred that he will temporarily have supervised visitation with Jennifer at the local visitation
program. Fred attends five visits over the next month and goes back to court on a motion to reinstate
unsupervised access to his daughter, claiming that his visits show that he is not a danger to Jennifer.
The observation reports detail accounts of the activities in which Mr. Jones and Jennifer engaged
during the visit, and statements that the father and daughter made. The judge asks to see the report
at the hearing on Mr. Jones's motion. ⁵⁹

Pioneers in the provision of supervised visitation services recognized the potential for records to be used to influence decisions about parental access to the child, and issued the following SVNrecommended cautionary note to appear on all reports or observation notes:

The observations are of parent-child contacts which have occurred in a structured and protected setting. No prediction is intended about how contacts between the same parent(s) and child(ren) might occur in a less protected setting and without supervision. Care should be exercised by the users of these observations making such predictions.⁶⁰

Unfortunately, the Guidelines are contradictory on this point. Section 5.3 states that providers
should not perform evaluations or make recommendations, but then goes on to list additional duties
of the provider if she does conduct an evaluation.⁶¹ Section 22.1, on the other hand, states that
providers shall not provide reports that express opinions.⁶² The authors of the Guidelines acknow-
ledged that there was "intense pressure" from courts for programs to give opinions based on their

⁵⁵SVN Guidelines, supra note 44, § 21.2.

⁵⁶Blaschak-Brown, supra note 49, at 80 ("Narrative documentation gives a play-by play account of parent-child interaction . . . an overall picture of what is happening.")

⁵⁷Fla. Standards, supra note 13, § IV(C)(1) ("Detailed observations offer a comprehensive account of events that took place between the non-custodial parent and child.").

⁵⁸See Marsh, supra note 10, at 35 (pointing out that video cameras may offer added security to supervised visitation program). ⁵⁹See infra text accompanying notes 138-39 for an elaboration of this hypothetical.

⁶⁰SVN Guidelines, supra note 44, app. D.

⁶¹Id. § 5.3. According to § 5.3, providers should perform evaluations and make statements of opinion about a family member or the contact between a child and adult only if the referring court or agency has specifically requested them to do so. Id. Moreover, providers should be specifically trained to provide evaluations, follow acceptable procedures, and inform both parents of the evaluation. Id.; see id. § 5.3 ed. note (maintaining that supervision and evaluation should be two separate functions, performed by different specialists).

⁶²Id. § 22.1.

9

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

evaluations.⁶³ Still, this pressure does not justify courts' attempts to make supervised visitation programs all things to all people.

There is a dearth of studies on the documentation produced at supervised visitation, and much more research needs to be conducted about the results of providing the service of supervised visitation itself. A review of the existing studies and literature, however, discloses several troubling trends. A 1999 study shows that nearly eighty percent of visitation programs serving divorced families make factual reports to the court,⁶⁴ and nearly sixty percent offer recommendations about parent contact to the court.⁶⁵ Thirty-three percent offer advice to the court regarding the validity of allegations such as parental neglect or sexual abuse.⁶⁶

The fact that disputed custody and visitation cases are a notorious drain on the judicial system⁶⁷ does not justify having visitation staff make recommendations to the court, even when parents affirmatively want programs to offer such information.⁶⁸ Supervised visitation was originally established to provide a crucial service, parent-child access, and was never intended to be used as a backdoor parenting evaluation. Using supervised visitation reports and staff to "document behavior by each parent that either supports or discourages access [to the child]" does just that. ⁶⁹ When a court allows a program's observation report into evidence in lieu of having the staff member testify,⁷⁰ it often effectively substitutes an irrelevant narrative for a formal evaluation.

That courts routinely review or hear evidence of visitation records in the parents' litigation⁷¹ means that parents may want to use the behavior at visits to strengthen their requests for relief.⁷² A noncustodial parent, for example, may seek to use the records to gain less structured visitation, unsupervised visitation, or custody. A custodial parent may seek to use the reports to justify requests for a prohibition on contact by the noncustodial parent.

B. The Limitations of Visitation Reports

Courts using reports in this fashion ignore the inadequate credentials of staff and the artificial nature
of supervised visitation. Although some programs provide what is commonly known as therapeutic
supervision-using licensed mental health professionals to directly address the conditions that led

⁶³Robert B. Straus, Nadine Blaschak-Brown & Anne Reiniger, Standards and Guidelines for Supervised Visitation Practice: Introductory Discussion, 36 Fam. & Conciliation Ct. Rev. 96, 100-01 (1998).

⁶⁴Thoennes & Pearson, supra note 11, at 466.

⁶⁵Id.

⁶⁶Id.; see Clement, supra note 2, at 299 (stating that testimony and records of supervised visitation staff have become extremely valuable evidence should either parent petition for modification of visitation).

⁶⁷Kaye & Lippman, supra note 22.

⁶⁸Pearson & Thoennes, supra note 30, at 138. According to that study, fifty-four to sixty-seven percent of parents favored supervised visitation programs making recommendations to the court. Id.

⁶⁹Id. at 128.

⁷⁰See Leigh Goodman, From Property to Personhood: What the Legal System Should do for Children in Family Violence Cases, 102 W. Va. L. Rev. 237, 281-822 (1999) (describing D.C. Superior Court's Supervised Visitation Program as fairly typical example of important contribution a center can make to ensuring safety of children).
⁷¹See Newton, supra note 2, at 56 ("All supervisors keep records and make their observations known to the court").
⁷²See Pearson & Thoennes, supra note 30, at 138 (reporting that many parents think that programs are supposed to provide court with factual information about visits, make recommendations to court about what should happen with respect to custody and visitation, and assess validity of allegations bringing them into supervised visitation).

10

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

to the referral⁷³-the majority of United States programs do not use licensed mental health professionals to monitor visits. Instead, programs generally use students who are interns in local colleges and universities majoring in social work or psychology, other student volunteers, community member volunteers, part-time workers, or college-educated staff⁷⁴. Training is required in states that have formal standards, and SVN recommends that visit supervisors be trained a minimum of thirteen hours, but preferably twenty-five.⁷⁵

These sessions, which focus on important issues such as child development, substance abuse, ad-
ministrative procedures, observation skills, and divorce dynamics, are nevertheless a poor substitute
for years of education, training, and professional licensure. Mental health professionals have much
more access to information regarding the parties and are highly trained in understanding such
complicated issues as domestic violence and sexual abuse⁷⁶. Mental health professionals would
also be in a position to know whether they need further access to the parties, or further information
from mental health evaluations, substance abuse evaluations, or violence risk assessments.⁷⁷

What subverts the reports' utility even more is that visits are highly controlled and manipulated in order to make them successful. In our example above, allowing Mr. Jones to use the records to buttress his claim for unsupervised visits would ignore the artificial nature of the supervised visit itself, and might further endanger the child and custodial parent. Such reports should not be admissible for several reasons.

The visit, from the initial intake appointment⁷⁸ to the exit of the parent from the center, is meticu-
lously arranged to ensure safety and reduce stress to the child. Staff emphasize the rules of the
program to the parent; these rules include: specific time periods for arrival and departure,⁷⁹ policies
on what subjects can and cannot be discussed,⁸⁰ criteria for physical movement around the program,⁸¹
prohibitions on the tone of voice to be used,⁸² and numerous other restrictions designed to ensure

⁷³Marsh, supra note 10, at 37.

⁷⁴See Johnston & Straus, supra note 6, at 145 (noting that supervised visitation programs are not staffed by clinicians with training to make recommendations about access of child to dysfunctional noncustodial parent and thus are not organized to answer such questions); Thoennes & Pearson, supra note 11, at 464 ("Approximately one half of the programs use graduate and undergraduate students to supervise visits on a volunteer basis, and one third to one fourth of the respondents use other community members as volunteers"); Eilene Zimmerman, When Real Solutions Can Be No Solution, San Diego Mag., Mar. 2, 2002, http://www.sandiegomag.com/issues/march02/featurea0302.shtml (discussing questionable qualifications of supervised visitation coordinators).

⁷⁵SVN Guidelines, supra note 44, § 11.2(a).

⁷⁶See SVN Guidelines, supra note 44, § § 2.13, 10.8, 11 (referencing and outlining mental health professional
training).

⁷⁷ See id. § § 11.1-11.2 (listing training that puts mental health professionals in position to seek access to parties and information).

⁷⁸See Blaschak-Brown, supra note 49, at 69-72 (describing intake procedures).

⁷⁹Id. at 76. Some programs designate different entrances to the visitation building for custodial and noncustodial parents, and/or different car parking areas for each adult. In addition, it is recommended that the custodial parent leave at least 15 minutes before the visiting parentId.

⁸⁰See, e.g., Cal. Standards, supra note 14, § 26.2(i)(6) (barring "derogatory comments about the other parent, his or her family, caretaker, child or child's siblings"); id. § 26.2(i)(7) (forbidding discussion of the court case or possible future outcomes).

⁸¹Seeid. § 26.2(i)(4) (requiring that contact between child and noncustodial parent be within provider's sight and hearing at all times).

⁸²See, e.g., id. (prohibiting whispering and requiring that all conversation be audible to the monitor)

11

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

that the visit does not traumatize the child.⁸³ The noncustodial parent is constantly reminded of the
nature of the visit by the presence of a monitor, who may be holding a clipboard and jotting down
notes to aid in the preparation of the report.⁸⁴ In some programs, the presence of a video camera
serves as a constant reminder of staff scrutiny.⁸⁵ Many programs also prepare the child for the
visit in a special intake session intended to alleviate her fear and make her more comfortable with
the visit.⁸⁶

In addition to preparing the parents and children for the visit, visitation staff are encouraged to promote the child's safety and welfare before and during the visit by suggesting or encouraging age-appropriate activities and by facilitating parent-child recreation.⁸⁷ This can mean that the staff may have suggested to the parent certain activities, such as games and sports, to enjoy during the visit.⁸⁸ This type of assistance is not therapy; rather, it is helpful and supportive encouragement of parent-child interaction.⁸⁹

The sterile environment created for safe visits sends the visiting parent the message that the program
and the court take the visit seriously. Thus, it drastically increases the likelihood that a noncustodial
parent will follow the rules of the center. Children receive the message at the outset that they will
be safe at the program. Even though they may experience some discomfort in the unfamiliar sur-
roundings, sympathetic staff (who have oriented, introduced, and reassured the children⁹⁰) and a
physical environment which has been specially designed to be child-friendly⁹¹-decorated with
bright colors and scattered with toys and games⁹²-may very well assuage or even mask any fear or
anxiety the child has in spending time with his parent. This is not to say that some children are not
genuinely pleased to see their parent; many no doubt are. Commentators have long noted that the
child may be longing for renewed contact, while also wanting the abuse to stop.⁹³

⁸³Seeid. § 26.2(i)(8) (prohibiting use of staff or the child to gather information about other party or caretaker or to transmit documents, information, or personal possessions).

⁸⁴See Fla. Standards, supra note 13, § III(B)(2) (providing that visitation supervisor and monitor/observer record observations, complete checklists, and prepare reports to the court); Kan. Guidelines, supra note 14, § 9.5b(3)(6) (providing that exchange/visitation supervisor record observation notes and document supervised exchanges or visitations); see also Cal. Standards, supra note 14, § 26.2(c)(4)(iii) (directing that providers of supervised visitation receive training in record-keeping procedures).

⁸⁵See Newton, supra note 2, at 56 (mentioning that supervision may include passive observation through video equipment). ⁸⁶See Blaschak-Brown, supra note 49, at 73 (recommending that providers offer children time to come to visitation sites and meet staff before first visits with noncustodial parents and take active roles to alleviate children's anxieties or fears); see also Robert B. Straus, Special Issues and Risks, in NYSPCC Handbook, supra note 10, 89, 100 (discussing preparation of child for visitation in cases of sexual abuse or domestic violence).

⁸⁷See Fla. Standards, supra note 13, § I(E)(5)(e) (stating that part of role of visitation supervisor is to facilitate child/ parent interaction during supervised contact).

⁸⁸Hedi Levenback, Setting Up the Physical Environment, in NYSPCC Handbook, supra note 10, 51, 60-62 (suggesting dozens of age-appropriate toys and games for visitation centers).

⁸⁹See Fla. Standards, supra note 13, § I(A)(8) (defining facilitation of visits as encouraging age-appropriate activities,

promoting child's safety and welfare, and discouraging inappropriate conduct-not therapeutic intervention).

⁹⁰See, e.g., Kan. Guidelines, supra note 14, § 6.1 (directing that in age appropriate manner, children be oriented to the setting, introduced to staff and reassured of availability, and told of their arrangements for visits, including frequency, duration, and procedures).

⁹¹See Levenback, supra note 88, at 54-59 (describing NYSPCC's Ronald McDonald Visitation Room as prototype). ⁹²Id. at 60-62.

⁹³E.g., Straus, supra note 86, at 96.

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Under these sanitized circumstances, it is highly inappropriate to use an orchestrated hour or two visit (or a collection of visits) to prove that the child has been or will be as comfortable with that parent in any other setting. Many children at supervised visitation are "compliant and eager to please,"⁹⁴ and their special needs may not be recognized by staff. Returning a child to a violent parent under those circumstances without treating the batterer simply reinforces the batterer's control over the other parent and betrays the child, who may have sincerely hoped or believed staff's assurances that the court would make the child safe. Moreover, it increases the danger to the custodial parent, who is now convinced that the court system will not assist her.

C. The Elusive Nature of Domestic Violence

Reliance on visitation reports to show improved behavior by a perpetrator of domestic violence is
particularly problematic for two reasons. First, as psychological studies have documented, batterers
can often readily evade detection. Batterers are not easy to identify by sight, and thus can confound
even the most experienced trier of fact.⁹⁵ Batterers come from every social, economic, ethnic,
professional, educational and religious group⁹⁶. They frequently minimize or deny their actions,
or attempt to project blame onto their victims or stressful circumstances in their lives.⁹⁷

Batterers are often noted to have "dual personalities"; they can be charming in public and unthinkably
vicious behind closed doors.⁹⁸ Researchers studying children in the visitation setting have even
noted that children themselves have a "double image" of their batterer fathers, who at times can be
"loving caretakers or doting suitors."⁹⁹ To the outside world, a batterer "usually appears to be a
good provider, a loving father, and a law-abiding citizen."¹⁰⁰ This public image, buttressed by most
batterers' lack of criminal records,¹⁰¹ makes it relatively easy for a batterer to choose to adapt to

⁹⁴Johnston & Straus,supra note 6, at 137.

⁹⁵See, e.g., Ramsey, supra note 2, at 153 (recommending that judges be trained in child development, child abuse and
neglect, domestic violence, and related issues). The fact that it is difficult to determine whether a parent following the rules
of a program is a batterer should not deter judges from seeking this crucial training. Such continuing education may assist
judges with a better understanding of the complicated dynamics of violence and its impact on litigants, children, and the
community.

⁹⁶Linda Peterman & Charlotte G. Dixon, Assessment and Evaluation of Men who Batter Women, J. Rehabilitation, Oct.Dec. 2001, at 38.

⁹⁷Sheeran & Hampton, supra note 50, at 18.

⁹⁸Haydee Beattie, Domestic Violence is Everyone's Problem, Cayuga Med. Ctr. at Ithaca (2000), at http://www.cayugamed.org/
articles/read.dbm?ID=191; see Donald G. Dutton, The Batterer: A Psychological Profile 24 (1995) (noting how victims
describe their batterers' metamorphosis as transformation "from a kindly Dr. Jekyll personality to a terrifying Mr. Hyde");
Susan Weitzman, "Not To People Like Us": Hidden Abuse in Upscale Marriages 155 (2000) (noting that the "upscale bat-
terer" recognizes that most people would doubt he is physically abusive, carefully grooming his public image to hide his
true nature); id. at 157 (noting that upscale batterer is not always horrible, making the woman's involvement with him all
the more addictive).

⁹⁹Johnston & Straus, supra note 6, at 140.

¹⁰⁰Peterman & Dixon, supra note 96, at 38; see Melanie Frager Griffith, Battered Woman's Syndrome: A Tool for Batterers?, 64 Fordham L. Rev. 141, 168 (1995) (emphasizing that batterer acts like a model husband and fools the outside world). The use of the word father and husband in this context reflects the fact that the majority of adult victims of family violence are women, and the majority of victimizers are men, Violence and the Family, supra note 23, at 9.
¹⁰¹See, e.g., Edward Gondolf, Discussion of Violence in Psychiatric Evaluations, 7(3) J. Interpersonal Violence 334, 337 (1992) (reporting that fewer than half (forty-seven percent), of "recently violent patients" in study of psychiatric patients had been previously arrested); see also Dutton, supra note 98 at 24-25 (reporting that "cyclical abusers," who are not constantly violent but periodically so, are abusive only within confines of the relationship).

13

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

the visitation setting. Supervised visitation staff may find it difficult to fathom that such a pleasant
person could be responsible for the heinous acts alleged by victims, especially in light of often
convincing denials and minimization¹⁰² and appropriate, even loving and affectionate, behavior
on-site.¹⁰³

Where domestic violence has been alleged, courts may not give credence or sufficient weight to a
history of partner abuse in making decisions about child custody or visitation¹⁰⁴. Judges too often
disbelieve credible evidence of domestic violence and discount its seriousness.¹⁰⁵ These allegations
often are wrongly perceived as false simply because they are made in a contentious environment¹⁰⁶
and because of the misperception that litigating parents concoct violence charges to gain an advantage
in court.¹⁰⁷ Further, courts that already regard allegations of violence with skepticism may be far
too willing to allow unqualified visitation staff to make assessments, or may be quick to accept a
report portraying positive interaction between the parent and the child as reflecting the whole rela-
tionship. Thus, reports on visitations, whose controlled environment can conceal violent tendencies,
may place victims and their children at risk by reinforcing an already deceptively benign image of
the abusive parent.

D. The Camouflage of Sexual Abuse

Some of the same obstacles to detecting domestic violence arise in family court cases in which
sexual abuse has been alleged. First, like domestic violence, sexual abuse is a crime committed in
private, behind closed doors. Physical evidence of abuse is present in only fifteen to twenty percent
of sexual abuse cases¹⁰⁸. The United States Supreme Court has acknowledged that child abuse is
one of the most difficult crimes to discover and prosecute, in large part because there are often no
witnesses except the victim.¹⁰⁹ Therefore, a court is forced to rely on other evidence in deciding
visitation and custody. Second, experts in sexual abuse note that mothers are often considered
"hysterical" by a court system¹¹⁰ that is suspicious of the veracity of the allegations and convinced

¹⁰²Sheeran & Hampton, supra note 51, at 18.

¹⁰³Cf. Dutton, supra note 98, at 24 (discussing how charming batterers can be). Admittedly, some batterers choose not to
comply with conditions for visitation. There have been documented incidents of stalking and other unlawful behavior at
supervised visitation centers. See e.g., Supervised Visitation Critical Incident Report, B. & Bench Visitation Rep., Spring
2002, at 9 (discussed in Maxwell & Oehme, supra note 15) (listing parental behaviors that violated program rules), available
at http://familyvio.ssw.fsu.edu/b&bspring2002.pdf. See infra notes 181, 199-203 and accompanying text for a discussion
of how these egregious violations of program rules can be addressed under our proposed standards' admissibility of critical
incidents.

¹⁰⁴See Violence and the Family, supra note 23, at 100 (pointing out that "the nonviolent parent may be at a disadvantage, and behavior that would seem reasonable as a protection from abuse may be misinterpreted as a sign of instability").
¹⁰⁵Karen Czapanskiy, Domestic Violence, the Family, and the Lawyering Process: Lessons from Studies on Gender Bias in the Courts, 27 Fam. L.Q. 247, 249 (1993); see also Rita Smith & Pamela Coukos, Fairness and Accuracy in Evaluations of Domestic Violence and Child Abuse in Custody Determinations, Judges' J., Fall 1997, at 38, 41 (tracing tendency to wrongly blame reporting parent to rise in diagnoses of insupportable syndromes such as "Parental Alienation Syndrome"). ¹⁰⁶Smith & Coukos, supra note 105, at 41.

¹⁰⁷Id. at 40.

¹⁰⁸See Module 4, Training on Sexual Abuse for Florida Department of Children and Families Services Staff (2002) (asserting that only fifteen to twenty percent of child sexual abuse cases can be verified by physical signs).
¹⁰⁹Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987).

¹¹⁰See, e.g., John E.B. Myers, A Mother's Nightmare - Incest: A Practical Legal Guide for Parents and Professionals 146
(1997) (stating that "a mother's perfectly natural emotional response to abuse can be twisted into 'evidence' that she is a

14

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

that they were made to gain the upper hand in a disputed custody case.¹¹¹ Third, like batterers, perpetrators of sexual abuse can be from any socio-economic group, and there is no way to identify a perpetrator merely by outward appearance.¹¹²

A fourth commonality between domestic violence and child sexual abuse is that an abused child
may very well "show no fear of the abusive parent and may be delighted to see him or her."¹¹³ The
child may also recant the allegation of abuse. This reaction is a particularly insidious shield to
identifying sexual abuse, and can be explained by the Child Sexual Abuse Accommodation Syn-
drome.¹¹⁴ In this phenomenon, children who have reported abuse often recant once they realize
the devastating effect their revelation has on the family.¹¹⁵ To cultivate this mindset, a molester
can "groom" his victim to accept increasing levels of sexual contact over time, threaten her with
punishment if she tells, make her feel ashamed of what she has done, and convince her to keep it
secret.¹¹⁶ When a child does reveal sexual abuse, the family may lose the financial support of the
perpetrator, and the family often suffers extreme humiliation and shame.¹¹⁷ Family members fre-
quently become angry at the child for the consequences of the revelation.¹¹⁸ Many children then
recant under this enormous pressure.¹¹⁹

The fifth common feature of domestic violence and sexual abuse allegations is that many family
court judges and lawyers believe that false allegations of sexual abuse, like domestic violence, are
rampant in custody cases.¹²⁰ Some judges and lawyers deem virtually all accusations of sexual

hysterical woman pursuing a baseless vendetta against her innocent husband"); Nancy L. Berson, Too Quick to Judge: Examining Alternative Explanations in Child Abuse Cases, J. Child Sexual Abuse, vol. 8 no. 4 1999, at 123, 124 (noting that divorcing mothers are too often labeled hysterical when making abuse allegations).

¹¹¹See, e.g., Amy Neustein & Ann Goetting, Judicial Responses to the Protective Parent's Complaint of Child Sexual Abuse,

J. Child Sexual Abuse, vol. 8 no. 4 1999, at 103, 105 (criticizing scientifically discredited psychological syndromes, such as Parental Alienation Syndrome and Malicious Mother's Syndrome, which ascribe to mother false allegations of sexual abuse intended to deprive former spouse of access to child).

¹¹²See Myers, supra note 110, at 46 (pointing out absence of scientifically valid psychological tests that can determine
whether a man has committed sexual abuse); Violence and the Family, supra note 23, at 88 (stating that no test, measure,
or technique can definitely determine likelihood that a particular person may be or become child sexual abuser).
¹¹³Straus, supra note 86, at 97. For a discussion of an abused child's conflicted feelings, see Marcia Sheinberg & Peter
Fraenkel, The Relational Trauma of Incest: A Family-Based Approach to Treatment 32-33 (2001). The authors describe a
child's reaction to the question of whether she missed her abusive stepfather: I do miss him a little, 'cause he was there when
I got glass in my hand, a splinter in my finger, and when I had to go to the hospital 'cause I-I was rollerblading and I fell
on my side and he brought me to the hospital. . . . He took me to get ice cream, he bought me stuff, and he was really nice.

. . .Id.

¹¹⁴Roland C. Summit, The Child Sexual Abuse Accommodation Syndrome,7 Child Abuse & Neglect 177, passim (1983). ¹¹⁵See Gail Ryan, Consequences for the Victim of Sexual Abuse in Juvenile Sexual Offending: Causes, Consequences, and Correction 161 (Gail Ryan & Sandy Lane, eds., 2d ed. Jossey-Bass Publishers 1997) (describing how sexually abused child may retract statements to escape impact and stigma of outside world's response to disclosure).
¹¹⁶See Sylvia I. Mignon, et al., Family Abuse: Consequences, Theories, and Responses 119 (2002) (noting that most experts agree that secrecy is hallmark of sexual abuse).

¹¹⁷See Summit, supra note 114, at 188 (outlining fragmentation of families).

¹¹⁸Id. at 167 (noting that "even when the victim's disclosure is believed and intervention takes place, the victim's removal from the home, loss of the relationship with the perpetrator, and intrusive interviews with strangers may seem a high price to pay for protection against the unwanted sexual experience").

¹¹⁹See Summit, supra note 114, at 188 (asserting that "[w]hatever a child says about sexual abuse, she is likely to reverse
it").

¹²⁰See P. Susan Penfold, Questionable Beliefs About Child Sexual Abuse Allegations During Custody Disputes, 14 Can. J.
Fam. L. 11, 13 (1997) (asserting that judges often react harshly to mothers who allege sexual abuse, even to the point of

15

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

abuse in the context of child custody cases to be false,¹²¹ but this assumption is not supported by
the literature or clinical experience.¹²² Regardless of the controversy surrounding allegations, as-
sessing accusations of child sexual abuse remains a complex task to be conducted only by well-
trained professionals.¹²³ The fact that there are some Machiavellian parents who fabricate allegations
during divorce will never justify the wholesale dismissal of all allegations; neither does it justify
ceding the ability to make decisions about their accuracy to unqualified visitation staff.

E. Inadequate Recognition of Visitation Reports' Subjectivity

Many supervised visitation programs either succumb to judicial pressure or sincerely but mistakenly
believe they are qualified to make recommendations to the court. In some instances, states have
acknowledged the inappropriateness of offering evaluative reports.¹²⁴ Even these states, however,
have failed to appreciate fully the danger of incorporating evidence of visitations into custodial
determinations.

A telling example is the Kansas Attorney General's Child Exchange and Visitation Center
Guidelines.¹²⁵ These guidelines go the furthest of those we have reviewed to identify the problem
of supervised visitation assessment, but even they do not go far enough to address it. The Kansas
Guidelines were created pursuant to legislation granting the Attorney General's office authority to
develop guidelines and funding for supervised visitation programs.¹²⁶ These guidelines expressly
state that it is inappropriate for supervised visitation providers to offer an evaluative or professional
opinion reports, defining evaluative report as one which expresses opinions or assessments about
the need for ongoing exchange or supervised visitation services.¹²⁷ The Kansas Guidelines go so
far as to list the reasons why evaluations are improper for visitation staff to carry out.¹²⁸

transferring custody to father). Penfold, a child psychiatrist and clinical director of a child psychiatry inpatient unit, lists a series of "pervasive assumptions" sometimes made by lawyers and judges, including the belief that false allegations are very common during custody disputes and that mothers making the allegations are either vindictive, mentally ill, or were themselves abused as children. Id.

¹²¹See Kathleen Coulborn Faller, Child Maltreatment and Endangerment in the Context of Divorce, 22 U. Ark. Little Rock

L. Rev. 429, 430 (2000) (asserting that domestic relations courts usually respond to abuse allegations with skepticism).

¹²²See id. (citing study showing that half of such allegations deemed likely; other studies, between two-thirds and three-
fourths).

¹²³See Kathy Kuehnle, Assessing Allegations of Child Sexual Abuse 294 (1996) (concluding that assessing allegations of child sexual abuse is complex task, to be conducted only by well-trained professionals).

¹²⁴See Cal. Standards, supra note 14, § 26.2(g)(2) (specifying that reports include facts, observations, and direct statements, but not opinions or recommendations regarding future visitation unless ordered by court); Fla. Standards, supra note 13, § IV(c)(4) (directing that, without prior approval from court, program not offer report that provides recommendations or expresses opinions about appropriate future course of access); Kan. Guidelines, supra note 14, § 6.4 (discouraging providers from offering evaluative or professional opinion reports).

¹²⁵Kan. Guidelines, supra note 14, § 6.4.

¹²⁶Kan. Stat. Ann. § 75-720 (2001).

¹²⁷Kan. Guidelines, supra note 14, § 6.4.

¹²⁸These are: a. an evaluative report is inconsistent with the provider's role and function in relation to the provision of services;

b. the provision of evaluative reports is likely to lead to services being used primarily for assessment and legal/tactical purposes, rather than supervision of exchange and visitation services; c. providers will only see part of the story and this will be too limited to validate any attempt at broad evaluation; and d. supervised exchange and visitation center staff may have a variety of backgrounds and experience. Courts are generally prepared to accept professional opinion (including evaluation) evidence only from those who have professional qualifications and experience. Inappropriate attempts to provide evaluative reports will adversely affect the credibility of child exchange and visitation centers. Id.

16

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

At the same time, the Kansas Guidelines mandate that each client record should: [I]nclude[] at a minimum:

1. a means of identifying who provided the service

2. the date, time, and duration of the service

3. summary of activities during the drop-off, the service, and pick-up

4. comments and/or requests made by the children and/or parents

5. interventions made during the service, including early termination of the visit and the reason
for the intervention

6. account of any physical or verbal altercation, threats, or violation of protection orders or court
visitation orders

7. account of any failure to comply with the rules and conditions for participation in the service as
set forth by the provider

8. any incidence of abuse as required [to be reported] by law.¹²⁹

While it may be possible to distinguish these two types of documents-evaluative and factual-in theory, we view these two sections as inherently contradictory in practice. In effect, they allow providers to interpret conduct and invite courts to make determinations of fitness based on those interpretations. An unintended illustration of the inextricability of evaluative and factual reporting is provided by the New York Society for the Prevention of Cruelty to Children Professionals' Handbook. The Handbook sets forth a list of parent and child actions that are "typically observed, documented, and reported to the court in this type of program":¹³⁰

• timeliness of the arrival of parents and children;

• child(ren)'s reactions to the visit, e.g., resistant, eager, ambivalent;

• custodial parent's encouragement or discouragement of child's participation in the visit;

• greeting between child(ren) and visiting adult;

• preparation for the visit made by the visiting adult;

• proximity of the adult and child during the visit;

• activities during the visit;

¹²⁹Id. § 6.3 (emphasis added).

¹³⁰Marsh, supra note 10, at 35.

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

• indicators of child's comfort during visit: e.g., relaxed demeanor, physical aggression, flat affect, excessive requests to leave visit room, crying, etc.;

• adult's ability to allow child to establish the pace of verbal and physical interactions;

• adult's ability to participate directly in visit activities with the child;

• adult's understanding of child's developmental stage;

• adult's ability to establish appropriate boundaries for child's behavior;

• criticism or positive affirmations given to child by the adult

• adult's ability to place child's emotional needs above his or her own;

• separation behaviors of adult and child at visit's end;

• any interventions required by the visit supervisor during the visit;

• actions or statements by the child that indicate an inappropriate knowledge of adult conflicts.¹³¹

Simply labeling a report factual or calling it an observation note as opposed to an evaluative report does not cure it of its underlying biases, instill in the author neutrality of judgment, or render it objective. In fact, calling a document merely descriptive or observatory may actually lead a court to mistakenly assume that it has more value because it is "objective."

Apparently disregarding the contradiction inherent in the practice, most providers make what are labeled "factual" reports to the court that document whether visitation occurred and whether there were problems.¹³² The troublesome issue lies in the interpretation of what is factual. The authors of the largest documented study of visitation programs to our knowledge assert that "feedback is greatly valued by courts and family law professionals."¹³³ They quote a lawyer as saying: "It is good that the supervisor can tell the court that there were no problems or that visits were missed. Otherwise you've got my client saying, 'He never shows up' and the husband saying 'It's a lie,' and the judge doesn't know who to believe."¹³⁴

Feedback is not a term of art. It is an interpretation that depends on the experience, background,
and expertise of the person providing it. Two different visit monitors could interpret the same
statement or behavior by a parent in entirely different ways, depending on many factors, including
the background, age, experience, and training of each monitor. Even professional parenting evalu-
ators are warned that they should constantly be aware of their biases and values that "contribute to
the ultimate recommendations that are made."¹³⁵ Therefore, a written account of behavior and

¹³¹Id. at 34-35; seesupra note 44 and accompanying text (citing SVN Guidelines to the same effect). ¹³²Thoennes & Pearson, supra note 11, at 466.

¹³³Id.

¹³⁴Id. (emphasis added).

¹³⁵Phillip Stahl, Ethical Considerations, in The AFCC Resource Guide for Custody Evaluators: A Handbook for Parenting
Evaluations 1, 11 (Phil Bushard & Dorothy A. Howard eds., 2d ed. 1995); see id. at 10 (reminding evaluators that they may

18

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

statements cannot be considered factual to the same degree as dates, times of contact, and identifying information. If the above lawyer wanted simply to ascertain the parties' compliance with the visitation order, there would be little concern (and no need for observation reports)¹³⁶. It is clear, however, that mere records of dates and times of visits are not all that the court and lawyers want from the visitation staff, and not the only things the visitation staff are providing.

F. The Flawed Reliance on Visitation Records

We can think of few reasons why a party or a court would allow visitation records to be admitted
into evidence other than to use it to prove or gauge a parent's behavior, and to assist with determin-
ations of appropriate parental access. As one experienced provider whose program's observation
reports, which can be upwards of thirty pages, and are filed with the court after every visit, put it:

Sometimes I'm suspicious that judges are misusing our service when they order supervised visitation and unsupervised visitation at the same time. If the parties don't need supervision, why are the judges ordering it anyway? This leads me to believe that they are looking for a forensic evaluation. But we're not a forensic evaluation service, period. That's not what we do.¹³⁷

As explained earlier, observation reports are not needed to ensure that a party complied with the court order. If a program does not have sign-in sheets, intake information and visitation logs containing information such as when the party arrived and left, who attended the visits, and whether the program forms were complete, are easily created.

Compilation and preservation of observation reports can serve valid purposes. For example, observation reports might be used for training staff in accurate recordkeeping, and those programs that utilize psychology or social work students from local colleges may argue that visitation records are a valuable training tool for these students. These purposes, however, do not justify their admission into custody proceedings.

An elaboration of our earlier hypothetical case¹³⁸ illustrates the hazard of allowing testimony as to "facts" about visitations. In that scenario, Mr. Jones calls the visit monitor to the witness stand and allows her to use her observation reports to refresh her memory of the visits. If she has remained truly neutral, she may feel trapped by the following questions:

Q: What did Mr. Jones and Suzy do during the visits?

A: They mostly played Monopoly and tossed a frisbee on the playground. Q: Did Suzy smile during the visit?

have biases that affect how they analyze and process the information in an evaluation). These biases may be about religion, homosexual rights, and parental contact in relation to abuse. Before starting an evaluation, the evaluator needs to make his or her biases clear to the parents, attorneys, and the court. Id. at 11.

¹³⁶The program could simply develop sign-in sheets and documents establishing when parents came and left the program, identifying information, etc.

¹³⁷Telephone Interview with Beth Zetlin, Executive Director of the Visitation Program of NYSPCC (Mar. 11, 2002) (on file with authors).

¹³⁸See supra text accompanying note 59 for the hypothetical.

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

A: Yes, at times.

Q: Did Suzy laugh?
A: Yes, once or twice.

Q: What did Suzy do when the visit was over?

A: She hugged Mr. Jones and said "See you next week, Dad."

The attorney can claim to be eliciting factual information from the observations reports, but instead he is using it to have the court infer that Mr. Jones and Suzy are comfortable around each other. The attorney is using this line of questioning to suggest that Suzy is happy with Mr. Jones. Indeed, Suzy might have been happy at the time, but that information is irrelevant to Mr. Jones's fitness for custody or unsupervised visitation.

A parent's mere attendance at and participation in visitation services should not be used to infer any more than the fact that the parent complied with the court order. An orchestrated visit as described above should be recorded only as occurring "according to program policy"; this means nothing more than that the staff arranged a highly controlled visit and that the parent participated in the visit. Others have emphasized that supervised visitation is not a substitute for a formal parenting evaluation, therapy, treatment, or other intervention.¹³⁹ It is unfortunate that these other crucial services are expensive and perhaps inaccessible to some litigants. Still, supervised visitation cannot be all things to all people. Its unauthorized, unwarranted, and unacknowledged use in family litigation is a disservice to children, litigants, and the community at large.

III. Evidentiary Objections to Admission of Observation Reports for Determining Custody¹⁴⁰

Observation reports offered to establish what took place during a visitation constitute hearsay in the classic sense.¹⁴¹ Therefore, absent qualification as an exception to hearsay's exclusion, or some other compelling reason, these reports should be barred as exclusive evidence of visitation experiences in custody proceedings.¹⁴² Moreover, even where introduction of unsupplemented reports meets local evidentiary standards, their use may violate due process.

A. The Problem of Hearsay

¹³⁹See Thoennes & Pearson, supra note 11, at 467 (quoting lawyers and mediators pointing out artificiality of supervised visitation and that custody evaluation is needed to shed light on what should be done in the long run).
¹⁴⁰This article addresses only the disposition of custody issues in family law and matrimonial courts. Child welfare cases, in which children have been removed from their homes and placed in foster care or relative placement, raise a distinct set of questions and lie beyond the scope of the article.

¹⁴¹See Fed. R. Evid. 801(1)(c) (defining hearsay as "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted").

¹⁴²In some instances, the introduction of visitation evidence may involve a parent's attempt to gain unsupervised visitation rather than full custody. In both cases, however, the asserted relevance is to the parent's fitness. Our analysis of custody proceedings, therefore, applies to disputes over unsupervised visitation as well.

20

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Reliance on an observation report's narrative of a visitation falls squarely within the hearsay rule's
objection to testimony that cannot be directly tested.¹⁴³ While a report could obviously assist the
recollection of a visitation center's director or staff member,¹⁴⁴ only her live testimony can be
probed in court. Only under unusual circumstances might a report's author be considered unavailable
in the sense contemplated by rules of evidence as excusing the courtroom presence of the declar-
ant.¹⁴⁵

1. The Business Records Exception

A more plausible candidate for overcoming the hearsay barrier is the exception for reports and re-
cords "kept in the course of a regularly conducted business activity."¹⁴⁶ Observation reports do
appear to meet the literal criteria of this section. The term "business" is defined expansively,¹⁴⁷
and the making of the report would typically fall within a visitation center's "regular practice."¹⁴⁸

Yet, even if observation reports conform to the evidence code's technical definition of business
records, their introduction in custody disputes hardly furthers the rationales for the exception. The
exercise of witnessing and characterizing a visitation session lacks the indicia of reliability that
undergird the exception. Common sense dictates that records of transactions, routinely relied upon
by the business compiling them, may be considered without demanding testimony recalling each
specific transaction.¹⁴⁹ By contrast, there can be no "routine" parent-child encounter at a visitation.
Rather, each is a unique event whose dynamic the author of an observation report seeks to capture
in an inevitably subjective manner. In assessing the value of each account, courts should not accept
lifeless reports as substitutes for the opportunity to interrogate the reporter.

Moreover, the gain in efficiency¹⁵⁰ from admitting ordinary business records is largely offset in
the case of observation reports by the condition that the business's record-keeping practice be cor-
roborated by "testimony of the custodian or other qualified witness."¹⁵¹ In this case, that "qualified
witness" would presumably be the visitation center's director or staff member who composed the
report in question. Even if the author's presence were not required, Rule 803(6) still appears to

¹⁴³See California v. Green, 399 U.S. 149, 154 (1970) (stating reason for hearsay rule is that declarant not subject to crossexamination); Chi., St. Paul, Minneapolis & Omaha Ry. Co. v. Kulp, 102 F.2d 352, 358 (8th Cir. 1939) (same).
¹⁴⁴Fed. R. Evid. 803(5) (excepting from hearsay rule records "concerning a matter about which a witness once had knowledge . . . shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly").

¹⁴⁵Seeid. R. 804.

¹⁴⁶Id. R. 803(6).

¹⁴⁷See id. (including "business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit").

¹⁴⁸Id.

¹⁴⁹See United States v. Baker, 855 F.2d 1353, 1359 (8th Cir. 1988) (holding laboratory analyses of controlled substances admissible when made on routine basis); People v. Stribel, 609 P.2d 113, 115 (Colo. 1980) (finding trustworthiness of business record based upon its nature as routine entry in the ordinary operations of the enterprise); In re N.W., 688 N.E.2d 855, 858 (Ill. App. Ct. 1998) (noting credibility of business record dependent on regular, prompt, and systematic nature of the entry and business's reliance on it); Wallace v. Lakes Region Constr. Co., 474 A.2d 1037, 1039 (N.H. 1984) (ruling that admissibility of medical records assumes their systematic preparation in modern hospital or clinic and that they are routinely relied upon by physicians in diagnosis and treatment of patients).

¹⁵⁰See State v. Henderson, 554 S.W.2d 117, 122 (Tenn. 1977) (recognizing that hearsay exceptions promote efficiency). ¹⁵¹Fed. R. Evid. 803(6).

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

mandate that some representative from the center testify. Given that unavoidable commitment of time, and the superiority of firsthand testimony, that representative may as well be the person whose perceptions the court is seeking.

The applicability of the business records exception is further undermined by the common prohibition
on admitting records created in anticipation of litigation.¹⁵² Admittedly, visitation center employees,
as presumptively neutral parties in custody disputes, do not pose the risk of tendentious reporting
by parties and their allies that is a central concern of the ban.¹⁵³ Nevertheless, if observation reports
are routinely allowed as evidence in custody cases, those who compile them will be keenly aware
of this potential use of their work. Especially if the author has formed a tentative judgment about
a parent's fitness, that awareness might well color her account of the parent's visits. It is exactly the
distorting consciousness of specific legal implications that this prohibition seeks to avoid.

Finally, even a generous reading of the business records exception may confront an exceptionally
high hurdle when observation reports relate exchanges between the report's author and a parent or
child.¹⁵⁴ Where the parent or child volunteers information thought relevant to the custody decision,
the report's presentation of that information amounts to double-level hearsay.¹⁵⁵ Without a compelling
showing of necessity, double-level hearsay has typically proved highly difficult to introduce.¹⁵⁶

2. The "Custody Decision" Exception

Courts have long been vested with broad discretion to make an individualized determination as to
what custody arrangement would be in the best interest of a child.¹⁵⁷ It might therefore be inferred
that rules of evidence should be modified in these proceedings. Under this attitude, the normal
resistance to introduction of hearsay should yield to the greater flexibility needed to deal with the
delicate issues raised by custody disputes. Family court judges, after all, presumably possess the

¹⁵²E.g., 725 Ill. Comp. Stat. Ann. 5/115-5(a) (West 2001) (admitting only normal business records, not those in anticipation
of litigation); see Palmer v. Hoffman, 318 U.S. 109, 113-15 (1943) (holding that employee accident report was not in the
regular course of business and thus inadmissible); People v. Tsombanidis, 601 N.E.2d 1124, 1133 (Ill. App. Ct. 1992)
(stating that records prepared for litigation not normally admissible even if prepared as part of regular course of business,
including police reports); Jones v. Hatchett, 504 So. 2d 198, 202 (Miss. 1987) (rejecting admissibility of letter from physician
in personal injury case as having been prepared in anticipation of litigation); Henderson, 554 S.W.2d at 120 (holding
laboratory results in criminal prosecution inadmissible as having been prepared in anticipation of litigation).

¹⁵³SeeTsombanidis, 601 N.E.2d at 1133 (indicating that records prepared for litigation have diminished probability of trustworthiness); Solomon v. Shuell, 457 N.W.2d 669, 676-78 (Mich. 1990) (holding that homicide investigation reports made in anticipation of litigation lacked trustworthiness and were thus inadmissible).

¹⁵⁴See, e.g., Kan. Guidelines, supra note 14, § § 6.3(3), (4) (requiring that record of visitation include "summary of activities during the drop-off, the service, and pick-up" and "comments and/or requests made by children and/or parents"). ¹⁵⁵See Fed. R. Evid. 805 (hearsay included within hearsay admissible only if "each part of the combined statements conforms with an exception to the hearsay rule").

¹⁵⁶See, e.g., United States v. Dotson, 821 F.2d 1034, 1035 (5th Cir. 1987) (excluding hearsay within hearsay where one
level did not qualify under exception); Russo v. Abington Mem'l Hosp. Healthcare Plan, Civ. A. No. 94-195, 1998 U.S.
Dist. LEXIS 18595, at *8-9 (E.D. Pa. Nov. 16, 1998) (excluding double hearsay); Montana v. Daniels, 682 P.2d 173, 178-
79 (Mont. 1984) (excluding hearsay within hearsay absent both levels qualifying as hearsay exceptions).
¹⁵⁷See Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp.
Probs. 226, 230-46 (1975) (discussing the discretionary nature of contemporary custody standards). See supra notes 16-17
and accompanying text for a brief discussion of the discretion vested in trial courts in resolving custody and visitation issues.

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

experience and sophistication to properly assess the value of technically inadmissible but potentially probative evidence.

However seductive this justification for ignoring evidentiary strictures, it appears to be bottomed on instinct rather than proof. The family court setting has not been shown to suspend the epistemological assumptions underlying the rules of evidence. Nor are we aware of any empirical studies demonstrating that family court judges possess a special immunity from the dangers posed by hearsay and other evidence that the law generally excludes. Like other legal shibboleths, this one cries out for testing independent of the self-validating experience of its adherents.

In any event, the proper way to alter a problematic legal standard should be express amendment, not ad hoc waiver. If custodial decisions truly call for rejection of premises behind standards of admissibility, that principle should be embodied in formal rules of evidence.¹⁵⁸ Until then, family court judges, like other judges, should be bound by the evidentiary code as written.

3. The Guardian Ad Litem Example

While the issue of admitting observation reports on visitations has received relatively little attention,
courts have had substantial experience confronting the admissibility of reports by guardians ad
litem (GAL), known in some jurisdictions as Court Appointed Special Advocates (CASAs).¹⁵⁹
That experience, frequently involving the evaluation of accusations against former spouses or
partners, militates against reliance on reports as evidence of custodial fitness. In a representative
case, one appeals court invoked the hearsay rule to overturn the trial court's reliance on a GAL report
to change the custody of children who had been living with their father.¹⁶⁰ The availability at trial
of witnesses quoted in the report did not excuse the absence of the GAL herself:

It is a fundamental right in this country to confront one's accuser and to examine evidence the trial court relies upon to reach a decision. The parent in a change of custody case must be allowed an opportunity to rebut the conclusions of the report and to cross-examine the preparer.¹⁶¹.

Admittedly, no definite consensus on this question has emerged. On the contrary, it appears that
most jurisdictions have not confronted the issue. Moreover, where the issue has arisen, several
courts have found GAL reports admissible under an exception to the hearsay rule.¹⁶² We do not
believe, however, that these individual decisions-along with a few instances of courts' admission

¹⁵⁸Cf.In re Fla. R. Fam. Ct. P., 607 So. 2d 396, 396 (Fla. 1992) (citing difference between family law cases and other civil matters as reason for establishing separate family court rules of procedure).

¹⁵⁹For an overview of the responsibilities of guardians ad litem and CASAs, see Ann M. Haralambie, The Child's Attorney:
A Guide to Representing Children in Custody, Adoption, and Protection Cases 5-11 (1993).
¹⁶⁰Miller v. Miller, 671 So. 2d 849, 851 (Fla. Dist. Ct. App. 1996); see also Scaringe v. Herrick, 711 So. 2d 204, 204-205
(Fla. Dist. Ct. App. 1998) (stating that reports by guardians ad litem usually contain hearsay).
¹⁶¹Miller, 671 So. 2d at 851; see Betz v. Betz, 575 N.W.2d 406, 410 (Neb. 1998) (holding that hearsay remains hearsay
although within report prepared by guardian ad litem appointed by court pursuant to statute); Clark v. Alexander, 953 P.2d
145, 154 (Wyo. 1998) (ruling that guardian ad litem report should not be filed with court or received into evidence without
express agreement of parties)

¹⁶²In re J.R.B., 715 P.2d 1170, 1172-74 (Alaska 1986); Heldebrandt v. Heldebrandt, 623 N.E.2d 780, 784 (Ill. App. Ct. 1993); Schmitz v. Schmitz, 351 N.W.2d 143, 145 (S.D. 1984).

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

of reports without explanation¹⁶³-refute the position that GAL reports should not be routinely ad-
mitted as primary evidence in custody cases. Courts that have excluded GAL reports recognize that
the stakes in custody cases are too high to admit evidence the law has long presumptively ex-
cluded.¹⁶⁴

Nothing in the nature of observation reports suggests that they should be treated differently from GAL reports as evidence of custodial fitness. If anything, observation reports should be viewed with greater skepticism. Introduction of GAL reports at least furthers the purpose for which they are compiled. As discussed earlier,¹⁶⁵ however, observation reports are designed to chart the quality of visits, not the quality of parenting.

B. Due Process Objections

Even where reliance on observation reports meets local evidentiary standards, it may violate pro-
cedural due process. The "right to be heard before being condemned to suffer grievous loss of any
kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle
basic to our society."¹⁶⁶ Where the restoration of custody is at stake, a fair hearing should entail
an opportunity to cross-examine the staff member whose observations jeopardize that custody. The
Supreme Court has held that parents must be afforded ample means to contest charges of unfitness.¹⁶⁷
Significant reliance on an unsubstantiated observation report to deny custody clashes with this
conception of due process.

It is true that the Court has not categorically barred consideration of written reports as grounds for terminating important benefits. In Richardson v. Perales¹⁶⁸, a case involving a claim for Social Security disability benefits, the Court expressly approved a physician's written report as substantial evidence supporting a finding of nondisability when the only live testimony was presented by the claimant and contradicted the report.¹⁶⁹ Later, in Mathews v. Eldridge¹⁷⁰, the Court upheld a state agency's termination of disability benefits where neither the claimant's physician nor a psychiatric consultant, whose reports the agency reviewed, had presented oral testimony.¹⁷¹

These rulings, however, seem too far removed from parental custody to govern the procedures
needed for fair resolution of that issue. Whereas Perales and Eldridge involved efforts to deny a
claimed benefit or to withdraw a property interest initially created by the government,¹⁷² decisions

¹⁶³In re Lawler, 484 So. 2d 451, 453-54 (Ala. 1985); Dames v. Bentley, No. CA 90-336, 1991 Ark. App. LEXIS 409, at *13-14 (June 26, 1991); Fernando v. Nieswandt, 940 P.2d 1380, 1383 (Wash. Ct. App. 1997).
¹⁶⁴SeeMiller, 671 So. 2d at 852 (stating that parent seeking to modify child custody award carried extraordinary burden). ¹⁶⁵See supra Parts II.A-B.

¹⁶⁶Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring).

¹⁶⁷See Santosky v. Kramer, 455 U.S. 745, 747-48, 769 (1982) (requiring clear and convincing evidence for state to permanently terminate rights of parents in their natural child).

¹⁶⁸402 U.S. 389 (1971).

¹⁶⁹Perales, 402 U.S. at 402-04.
¹⁷⁰424 U.S. 319 (1976).

¹⁷¹Eldridge, 424 U.S. at 326; see also Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994) (noting that trustworthiness of medical records is presumed under business records exception).

¹⁷²Eldridge, 424 U.S. at 332 (dealing with withdrawal of property interest); Perales, 402 U.S. at 407 (dealing with denial of benefits).

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

about custody implicate an innate fundamental liberty.¹⁷³ Moreover, while not mechanical, determ-
ination of eligibility for government benefits rests heavily on objective indicia reasonably captured
in written documentation.¹⁷⁴ By contrast, the impression of the mood of a visitation is inescapably
subjective; the ability to question the recorder of that impression vastly enhances whatever value
it might have. Finally, the Supreme Court's tolerance of reliance on written reports to deprive
claimants of government benefits has assumed that the deprivation would not inflict irreparable
harm.¹⁷⁵ The loss inflicted by restricted access to one's child can hardly be compensated by contact
at some point in the future.

IV. Confining the Use of Observation Reports in Custody Proceedings: A Proposed Model

Concerns about the role of visitation in determining custody transcend the evidentiary objections
to admission of observation reports discussed in Part III. Those objections flow from the prejudice
to parents caused by adverse observations presented only in writing, and can largely be circumvented
by modification or liberal interpretation of evidentiary rules. As discussed in Part II, however, we
believe that raw accounts of visitations in custody proceedings are often inherently misleading in
whatever form they appear. In particular, we believe that the artificial conditions of visits can foster
unduly optimistic assessments of parent-child relationships.¹⁷⁶ Accordingly, we propose a standard
to govern the admissibility of reports regardless of the form in which they appear or the purpose
for which they are intended.

Specifically, we propose: In a proceeding to resolve a dispute over the custody of a child, records
of a parent's supervised visitation with that child shall not be admitted without a proper predicate.
In such proceedings, a sufficient predicate may consist of testimony on the parent's custodial fitness
by a licensed mental health professional who has had ongoing involvement in the case for evaluative

¹⁷³See Troxel v. Granville, 530 U.S. 57, 66 (2000) (affirming parent's fundamental right to make decisions concerning the
care, custody, and control of her children); M.L.B. v. S.L.J., 519 U.S. 102, 116-17 (1996) (stating that case involving ter-
mination of parental rights "demands the close consideration the Court has long required when a family association so un-
deniably important is at stake"); Santosky, 455 U.S. at 753 (noting "Court's historical recognition that freedom of personal
choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment"); Lassiter v. Dep't
of Soc. Servs. of Durham County, 452 U.S. 18, 27 (1981) (stating that parent's desire for and right to companionship, care,
custody, and management of child is important interest that undeniably warrants deference and protection); Quilloin v.
Walcott, 434 U.S. 246, 255 (1978) (noting constitutional protection of parents' interests in their children). While loss of
custody does not rise to the level of termination of parental status, M.L.B., 519 U.S. at 491, this difference goes to the weight
rather than the nature of the interest. See Woodrum v. Woodward County, 866 F.2d 1121, 1124-25 (9th Cir. 1989) (balancing
custody interest of parents against interests of state); Ellis v. Hamilton, 669 F.2d 510, 512 (7th Cir. 1982) (holding that
rights of great-aunt, adoptive grandmother, and de facto parents under due process clause was not violated by county's re-
moval of children); Halverson ex rel Halverson v. Taflin, 617 N.W.2d 448, 451 (Minn. Ct. App. 2000) (citing Baker v.
Baker, 494 N.W.2d 282, 287 (Minn. 1992)) (noting that in ex parte emergency circumstances parent's due process interests
must yield to considerations of child's welfare).

¹⁷⁴SeeEldridge, 424 U.S. at 345 (noting that medical test results are best presented in writing); Perales, 402 U.S. at 404 (referring to medical reports as "routine, standard, and unbiased").

¹⁷⁵SeeEldridge, 424 U.S. at 342-43 (describing potentially available sources of temporary income to erroneously terminated disability recipient); id. at 349 (pointing out that claimant had right to evidentiary hearing and subsequent judicial review before denial of claim became final).

¹⁷⁶See supra Parts II.B-D for a discussion of the artificiality of supervised visitation.

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

purposes, or testimony of substantially equivalent value. The term "record" as used in this paragraph
includes written observation reports, videotapes, and oral testimony by employees of visitation
centers. Written reports may be introduced only when the party offering the report has demonstrated
by clear and convincing evidence that the report's author is unavailable, and that the report is
supported by substantial indicia of reliability. The above restrictions notwithstanding, courts may
in their discretion admit records of critical incidents at visitations. The term "critical incident" as
used in this paragraph means conduct by a parent that warrants termination of a visit.¹⁷⁷

We believe this standard addresses the insufficiently appreciated danger of misplaced reliance on visitation reports to construct an overly benign picture of custodial fitness. At the same time, the proposal guards against the introduction of hostile observations without parents being given an opportunity to counter the observation's adverse implications. The standard does not categorically bar the introduction of accounts of visitations. Rather, the limitations are tailored to admit such evidence in those instances where confidence in its pertinence and reliability is justified. The standard's benefits, we believe, substantially outweigh the objections that may be lodged against the restrictions that we propose. Most importantly, they serve the overriding goal of custody proceedings: to protect the best interest of the child.¹⁷⁸

A. Advantages of the Standard

We believe that heavily qualifying the admissibility of visitation accounts improves the quality of
custody proceedings in three principal ways. By reversing the tacit assumption of an account's rel-
evance, the proposal gives effect to the principle that "[n]o prediction is intended about how contacts
between the same parent[s] and child[ren] might occur in a less protected setting and without super-
vision."¹⁷⁹ More broadly, by drawing a conspicuous boundary between custody and supervised
visitation,¹⁸⁰ this standard would focus the attention of judges otherwise tempted to conflate these
two distinct spheres. Finally, by encouraging the participation of mental health professionals, adop-
tion of this approach would promote custodial decisions based on expertise rather than anecdote
and intuition.

1. Avoiding the Trap of the "Good Visit"

Again, the temptation to casually base benign predictions on parent-child contacts in the carefully
controlled environment of visitations appears irresistible to many courts.¹⁸¹ Curbing the natural
but misguided leap from placid visits to custodial competence, therefore, cannot be left to judicial

¹⁷⁷Examples would include the following conduct by a noncustodial parent: arriving openly intoxicated, issuing overt threats to staff, making sexualized physical contact with the child, or engaging in actively delusional behavior. See Supervised Visitation Critical Incident Report, supra note 103, at 9 (listing reported critical incidents). The definition is set forth as an objective standard, so that arbitrary termination would not qualify. It is expected that experience would give further substance to the concept of critical incident.

¹⁷⁸See supra note 16 and accompanying text for a discussion of the "best interest of the child" standard.

¹⁷⁹SVN Guidelines, supra note 44, app. D. See supra text accompanying note 60 for a fuller quote.

¹⁸⁰Subsequent references to visitation denote supervised visitation only. Unsupervised visitation or other unrestricted access is grouped with custody for purposes of our analysis.

¹⁸¹See supra Part II.A for a discussion of this tendency of the courts.

26

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

sensitivity and self-restraint. Rather, only a formal requirement of exceptional justification for admitting reports on visitation will confine reliance on these reports to their proper context.

Nor do the restrictions proposed here represent a sharp philosophical departure from traditional evidentiary standards. The law of evidence contains numerous exclusions of information that a factfinder might consider illuminating, but is excluded in part because it poses too much danger of distorting the truth.¹⁸² In each case, factfinders are feared to be inclined toward reading too much into the defendant's gesture.¹⁸³

Where reports of good behavior at visitations are admitted to show custodial fitness, the danger is
greater and the stakes are higher. Absent an appropriate predicate from a qualified evaluator, the
reports have even more (false) appeal as providing probative value. Here, though, the cost of un-
founded reliance on misleading evidence is not payment of damages, but rather sacrifice of a child's
well-being.

2. Maintaining the Visitation/Custody Distinction

The law has long excluded even relevant evidence if its probative value is substantially outweighed by the danger of confusion of the issues.¹⁸⁴ The tendency to view "good" visits as grounds for supporting custody reflects a larger failure to recognize the distinct purposes of visitations and custody decisions. As discussed earlier,¹⁸⁵ visitations and the broader parent-child relationship diverge too much to permit routine disregard of their separate dynamics.

Blurring the line between visitation and custody may not only wrongly enhance prospects for
gaining custody, but unfairly undermine them as well. Just as courts might extrapolate too generously
from "good" visits, they might extract an overly pessimistic view of parenting skills from "bad"
visits as well. This danger is especially pronounced where the observer and parent do not share the
same culture. Because visitation monitors are not trained experts,¹⁸⁶ they may misinterpret or
mischaracterize parenting behavior that simply reflects culturally shaped alternative forms of ex-
pression. An ethnocentric monitor might, for example, write critically of a parent perceived as

¹⁸²See Fed. R. Evid. 403 (providing that evidence may be excluded if its probative value is substantially outweighed by
danger of unfair prejudice); id. R. 407 (disallowing evidence of subsequent remedial measures); id. R. 408 (disallowing
evidence of compromise or offer compromise); id. R. 409 (disallowing evidence of payment of medical expenses).
¹⁸³See Pennington v. Sears, Roebuck & Co., 878 P.2d 152, 155 (Colo. Ct. App. 1994) (stating that even where legally rel-
evant, defendant's offer to pay plaintiff's medical expenses and later refusal to do so excludable under Rule 403 because of
"danger of unfair prejudice, misleading the jury, and confusion of the issues"); Schlossman & Gunkelman, Inc. v. Tallman,
593 N.W.2d 374, 380 (N.D. 1999) (noting that admission, for purposes of impeachment only, of statements made during
settlement negotiations could be taken by jury as admission of liability); Lang v. Sanger, 44 N.W. 1095, 1096 (Wis. 1890)
(expressing concern that jury might interpret subsequent repair as acknowledgement of negligence). Excluding such evidence
also serves to foster behavior favored by public policy. See, e.g., Ala. Power Co. v. Marine Builders, Inc., 475 So. 2d 168,
171-72 (Ala. 1985) (noting that exclusion of evidence of subsequent remedial measures is intended to remove disincentive
to repair).

¹⁸⁴Fed. R. Evid. 403.

¹⁸⁵See supra notes 76-94 and accompanying text for a discussion of how the visitation setting distorts the parent-child rela-
tionship.

¹⁸⁶See supra notes 73-75 and accompanying text for a discussion of the lack of professional credentials of visitation monitors.

27

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

given to insufficient (or excessive) displays of affection toward the child. In a society where cultural misunderstanding is commonplace,¹⁸⁷ this danger should not be lightly dismissed.

Recognizing the pitfalls of misconstruing the significance of visits could prompt wider recognition that current overreliance on observation reports is propelled by expediency, not principle. In a sense, supervised visitation has become a judicial dumping ground for a range of family law issues deemed too intractable for resolution through the appropriate process.¹⁸⁸ It is certainly convenient to utilize visitation reports as a substitute for adequately exploring the question of parents' fitness in custody determinations. We see, however, with regard to other aspects of children's welfare, that convenience does not justify foregoing independent determinations of separate questions. The results of testing a child's vision, for example, are not transplanted to the measurement of his hearing. A child's achievements in mathematics do not obviate a full assessment of her progress in social studies. The family court system is designed to serve some of society's most vulnerable children; the illogic of evidentiary shortcuts should be rejected here as well.

3. Incorporating Expertise

The participation of mental health professionals under our standard is principally intended to guard
against the abuse of visitation evidence in custody proceedings. By allowing such evidence when
a psychologist or other professional has laid a proper foundation, the proposal acknowledges that
visitation contacts in many instances can form a valid piece of the custodial picture. That evidence,
however, should play an adjunct part in evaluating a parent's fitness; it should not be the centerpiece
of the evaluation. Rather, someone with professional training and ongoing involvement with the
child should be responsible for advising the court on the probative value of visits. In this respect,
our proposal contemplates a place for mental health professions similar to that of expertise required
in other areas of evidence.¹⁸⁹

An obvious related object of the proposal is to promote reliance on professional evaluations apart
from the limited function of commenting on visitation reports. It is unthinkable that a court charged
with a major decision affecting the physical health of a child would not consult an appropriate
physician. Similarly, courts ruling on an issue profoundly affecting the direction of a child's life
should also seek the insights of a specialist. We concede that the state of medical science is generally

¹⁸⁷See, e.g., Keri B. Lazarus, Adoption of Native American and First Nations Children: Are the United States and Canada
Recognizing the Best Interests of the Children?, 14 Ariz. J. Int'l & Comp. L. 255, 265-66 (1997) (noting that removal of
Indian children from their homes sometimes mistakenly based on failure of social workers and judges to recognize cultural
differences between dominant society and Native Americans); Pratibha Reebye, Child Custody-Access Evaluation: Cultural
Perspectives, at http://www.priority.com/psych/custody.htm (noting that even most seasoned evaluator may misjudge based
on uncertainties around cultural issues) (last visited July 29, 2002); see also Stahl, supra note 135, at 10 (discussing bias
of evaluator).

¹⁸⁸See Peter Macdonald, A View from the Bench, B. & Bench Visitation Rep., Winter 1999, at 5 (declaring it "all too easy [for a judge] to refer a family to the visitation center and then forget about what occurs from that point on"), available at http://familyvio.ssw.fsu.edu/barbench.pdf.

¹⁸⁹See Fed. R. Evid. 702 ("If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise. . . ."); Kumho Tire Co. v. Carmichael, 526 U.S. 137

(1999) (requiring qualification of all expert testimony); Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993) (setting standard for qualifying scientific expert testimony).

28

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

more advanced than that of mental health counseling. On the other hand, the impact of custody on a child will be greater than that of all but a handful of medical events. In seeking to give due recognition to that impact, we are hardly alone in calling for an enhanced role for mental health professionals in custody proceedings.¹⁹⁰

B. Objections to the Standard

We readily acknowledge that a number of plausible objections may be brought against our proposal. These range from specific evidentiary considerations to broader questions of competence and social policy. We address below each of the major criticisms that we anticipate.

1. Uniform Treatment of Disparate Evidence

It may be argued that the proposal's sweeping definition of "record" fails to distinguish the varying reliability of written reports, live testimony, and videotape. In technical terms, this is undoubtedly true. A monitor's oral testimony is not subject to the hearsay objection that may be raised against the use of observation reports as primary evidence.¹⁹¹ Likewise, videotape is widely admitted where assurance exists that the tape provides a fair and accurate representation of what it depicts.¹⁹² We would expect this condition to be met in a literal sense in most cases.

While conceding qualitative differences among these different instruments for reporting, we think this criticism misconceives our fundamental critique of raw visitation evidence. Although videotape, testimony, and written reports may represent a descending hierarchy of reliability, each suffers, in our view, the grave defect of diverting the court from its focus on parental fitness. Without a proper foundation, any account of visitation contacts-however "objectively" faithful-inherently risks misleading a court that is ruling on custody.

The issue of videotapes especially underscores the gap between conventional notions of admissib-
ility and the danger of superficial relevancy in this setting. To assume that technically valid videotape
is admissible because of its relevance to the parent's visitation conduct begs the question of
whether the conduct itself is "a fact which is of consequence to the outcome of the action."¹⁹³
Again, we believe that is not, or at least that its prejudicial impact outweighs its probative value in
the absence of a proper predicate. Without that predicate, videotape merely provides a less subjective
version of information that distorts the court's inquiry in whatever form it appears. That information's
prejudice may be obscured partly because it is unusual; its harm-particularly in the case of "good"
visits-is not so much to the party resisting its admission, but to the best interest of the child.

¹⁹⁰See, e.g., Bricklin & Elliot, supra note 19, at 513-14 (suggesting specialized roles for mental health professionals in high-
conflict divorce cases); Ramsey, supra note 2, at 147-48 (calling for active role for mental health professionals in family
issues through community and courts); Levin, supra note 1, at 850-53 (supporting intervention by mental health professionals
in custody and visitation cases through treatment of batterers and supervised visitation programs).
¹⁹¹Seesupra Part III.A for a discussion of the hearsay objection that can be raised against observation reports.
¹⁹²See, e.g., McPherson Redevelopment Corp. v. Watkins, 782 S.W.2d 690, 691-92 (Mo. App. 1989) (ruling videotape
admissible); New York v. Higgins, 392 N.Y.S.2d 800, 803-04 (Sup. Ct. 1977) (finding no statutory or constitutional barriers
to admission of videotape).

¹⁹³Fed. R. Evid. 401 (defining "relevant evidence").

29

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

2. Exclusion of Visitation Evidence Offered for Valid Purposes

A separate charge of overbreadth is that the proposal's undifferentiated exclusion of visitation activity effectively throws out the baby with the bathwater. That is, even assuming the potential of visitation evidence generally to mislead courts in custody cases, reports on particular aspects of visits may have substantial probative value. For example, if a parent lost custody primarily because of alcohol or drug abuse, then the parent's conduct at visitation sessions might bolster a claim of sobriety. Similarly, if concern exists that a parent's unrestricted access poses a risk of flight, accounts of reassuringly stable behavior at visitations could alleviate that concern. Admission of such specific facets of visits, it may be argued, assists custody determinations without transforming visitation records into wholesale evaluative tools.

The fallacy of this argument lies in the discrepancy between theoretical compartments and the realities of decision-making. The line between what we consider improper use of visitation evidence and what advocates of limited admissibility would allow would not be clear-cut in practice. A judge exposed to visitation records for one of the specific purposes described above could not be expected to mentally dismiss the records' implications for the broader issue of custodial fitness. Inevitably, the formal wall between permissible and impermissible reliance on visitation contacts would dissolve, and visitation reports would resume their function as misguided (but now backdoor) evaluations of parenting. Only a prophylactic, per se ban on unsupplemented visitation records provides sufficient strategic protection to the integrity of the custody decision.

Moreover, the argument for admission on grounds of special relevance still tacitly assumes that an adequate evaluation has not been conducted. If custodial fitness has been fully and professionally evaluated, then evidence from visits about sobriety or stability becomes superfluous. Conversely, if admission of visitation records for one of these purposes is deemed indispensable, then the court must lack other evidence on which to make a determination. In that case, visitation evidence has again become the phenomenon to which we object: a meager substitute for a full-scale assessment of the custodial placement that will most benefit the child.

3. Refusal to Distinguish Between Judges and Juries

However real the dangers of improperly weighing visitation records, one might contend that we
have exaggerated them by failing to appreciate judicial responsibility in custody cases. After all,
custody determinations overwhelmingly are made by judges without involvement by juries.¹⁹⁴
Limitations on admissibility, though, are designed largely to guard against jurors' gullibility.¹⁹⁵
Concerns about misleading the factfinder therefore diminish when the court performs that role.¹⁹⁶

¹⁹⁴See, e.g., Ala. Code § 30-3-1 (1975 & Supp. 2001) (providing that court may give custody to either father or mother "as may seem right and proper"); Cal. Fam. Code § 3421 (West 1994 & Supp. 2002) (granting court jurisdiction to make initial custody determination); Conn. Gen. Stat. § 46b-115k (Supp. 2002) (same).
¹⁹⁵See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995) (citing authority that judges better equipped than juries to evaluate scientific reliability of expert testimony); 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice And Procedure § 5023 (West 1977) (describing rules of evidence as "sometimes justified in terms of a model of the jury that is far from flattering").

¹⁹⁶Cf.Wright & Graham, supra note 195, § 5204 (discussing judge's role in insulating jury from inadmissible evidence).

30

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

In a sense, this argument is a variation of the notion of permissive admissibility in custody cases,
which we earlier addressed and rejected.¹⁹⁷ We acknowledge, however, that judges' greater exper-
ience and sophistication relative to juries are entitled to some consideration. Nevertheless, we believe
that the burden should be on advocates of admissibility to demonstrate judges' immunity from the
distortions of visitation evidence, and that this burden has not been met. Indeed, our resistance to
raw visitation accounts as inherently incomplete and misleading obtains regardless of the legal
acumen of the decisionmaker. It disparages neither judges' ability nor their ethics to consider them
unable to take appropriate account of visitation records without a sufficient predicate. The law
contains numerous instances of requiring that a proper foundation be supplied for the admission
of certain evidence, irrespective of the identity of the factfinder.¹⁹⁸ Such prerequisites are not
thought to dishonor judges.

4. Asymmetrical Admission of Adverse Evidence

From the standpoint of fairness, perhaps the strongest objection to our standard would appear to be its exception for the admission of critical incidents. To a parent seeking to gain custody, it may seem inequitable that visitation evidence reflecting harshly on his parenting ability is presumptively permissible, but contacts showing him in a more favorable light are not. While the evenhanded dispensation of sauce to goose and gander is an adage, not a statute, the underlying concept is deeply ingrained in our jurisprudence. Indeed, if anything, the law often tilts toward giving the accused the benefit of the doubt.¹⁹⁹

We appreciate the surface logic and emotional resonance of this objection, but believe the exception
for critical incidents to be a justifiable, even crucial, feature of our proposal. To begin with, the
proposal's imbalance is more apparent than real. In fact, evidence of both ordinary "good" and
"bad" visits is excluded because of its potential to generate unwarranted assumptions about custodial
fitness. By contrast, a critical incident under our standard-e.g., violence, threat, fondling²⁰⁰-is by
definition well out of the ordinary, and therefore falls outside the normal framework. While the
bearing of either trouble-free or mildly unsettling visits on custodial fitness can be easily misinter-
preted, few would deny the serious presumptive relevance of conduct qualifying as a critical incid-
ent.²⁰¹ Put another way: unlike the equally inadmissible good and bad visits, a critical incident has
no counterpart in an outstandingly positive visitation event that would presumptively demonstrate
fitness. Formal symmetry should not be demanded where it does not serve practical needs.

Furthermore, the standard does not even categorically bar the introduction of especially favorable
evidence from visitations; it merely requires that such evidence be accompanied by a proper predic-

¹⁹⁷See supra Part III.A.2 for a rejection of a "custody decision exception" to the hearsay rule.

¹⁹⁸E.g., Fed. R. Evid. 901 (requiring authentication or identification of evidence as condition precedent to admissibility).
¹⁹⁹See, e.g., Buchanan v. Angelone, 522 U.S. 269, 276 (1998) (citing Lockett v. Ohio, 438 U.S. 586, 604 (1978)) (recognizing
rule that during penalty phase of capital trial, sentencer may not be precluded from considering, and may not refuse to
consider, any constitutionally relevant mitigating evidence); Duncan v. Louisiana, 391 U.S. 145, 155 (1968) (enforcing
right to jury trial against state); Speiser v. Randall, 357 U.S. 513, 525-26 (1958) (requiring proof beyond reasonable doubt
for criminal conviction).

²⁰⁰See supra note 177 for more examples.

²⁰¹See Faller, supra note 121, at 443-44 (cautioning generally against drawing inferences from observing parent and child
together where maltreatment or endangerment is alleged, but finding abusive behavior in such sessions "very compelling").

31

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

ate. The goal of the proposal is not to exclude evidence that supports a parent's case for custody, but to assure its reliability. While no expertise is needed to demonstrate that outright physical or sexual abuse undermines that case, the significance of an exceptional display of affection should be placed in a broader context before being accepted as evidence of custodial fitness. Nor does the proposal rigidly insist on a licensed professional as the source of that context; "testimony of substantially equivalent value" may be provided. While we frankly do not envision a specific scenario in which this alternative would be invoked, we agree that the standard should retain flexibility to accommodate unusual circumstances.

Finally, an exception for critical incidents serves a vital purpose that a comparable exception for
happy visitation episodes would not: viz., protecting children's safety. Just as a physician's first re-
sponsibility is to do no harm,²⁰² so a court's first priority to a child under its aegis must be to guard
against harm to that child. Evidence of a critical incident, in whatever setting it occurred, would
certainly be crucial to an informed judgment as to how best to prevent harm. This is especially true
of the carefully managed environment and limited time of a visitation, where a parent's inability
to exercise restraint must be regarded as ominous. As to any alleged unfairness in stacking the deck
of admissibility against the parent, nothing in the proposal bars a parent accused of involvement
in a critical incident from offering evidence rebutting or extenuating the report. Moreover, it should
be remembered that the very notion of "the accused" takes on a special meaning in custodial pro-
ceedings, for that proceeding is ultimately not about the desires of the parent but rather the interest
of the child.²⁰³

5. Unrealistic Expectation of Resources

Perhaps the most formidable obstacle to adoption of our proposal is the scarcity of public funds. A standard that envisions an increased role for mental health professionals must obviously ensure their accessibility to those who cannot afford them. Indeed, we cannot help but suspect that the current patchwork system is borne as much of fiscal limitations as of misplaced confidence in the value of visitation reports. Our proposal, therefore, must ultimately be aimed at state legislators. It is they who must not only codify restrictions on the admissibility of visitation reports,²⁰⁴ but also provide resources for the new regime.

Even without an infusion of adequate funding, however, we believe that our standard on balance
would improve the current process for determining custody. As we have argued, the introduction
of visitation reports into custodial proceedings tends to do more harm than good. Where courts
cannot afford a professional evaluation, other evidence relevant to custodial fitness is still frequently
available. In particular, courts often look to guardians ad litem (GALs) or court appointed special
advocates (CASAs)²⁰⁵ to inform their decisions.²⁰⁶ Indeed, our resistance to evidence from visitations

²⁰²See George Sarton, A History of Science: Ancient Science Through the Golden Age of Greece 376 (1952) (discussing Hippocratic Oath).

²⁰³See supra note 16 and accompanying text for a discussion of the "best interest of the child" standard. ²⁰⁴We would not expect courts voluntarily to reverse current practices.

²⁰⁵See Child Abuse Prevention and Treatment Act, 42 U.S.C.A. § 5106a(b)(6) (West 1995) (requiring states to provide representation to children in family court proceedings involving allegations of abuse or neglect).
²⁰⁶See supra Part III.A.3 for a discussion of GAL/CASA reports. To meet the hearsay objections discussed in Part III.A, we assume that a GAL/CASA who submits a report would be available to testify as well.

32

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

subsides somewhat when it is presented by a GAL/CASA, who can grasp visitation activity in the context of wider parent-child contacts. Because the perception of that activity is inherently subjective, it should be offered only by someone with a more comprehensive perspective than a visitation staffer who sees these contacts only in this single limited setting.

Nevertheless, we concede that scarcity of resources remains a daunting problem. An inability to supply professional evaluative services significantly undercuts the effectiveness of our proposal,²⁰⁷ and support even for GALs and CASAs falls well short of need.²⁰⁸ Ultimately, the prospect of increased funding rests with political dynamics beyond the scope of our analysis. In an era when political rhetoric prominently includes professions of solicitude for children's welfare, however, it would be sadly ironic if proposals of this type failed solely for budgetary reasons. As federal programs designed to promote children's nutrition,²⁰⁹ education,²¹⁰ and other keys to development²¹¹ have demonstrated, legislative will can make available some of the resources required to serve children's vital needs. Surely, measures seeking to ensure that children are protected from abusive parents are worth at least some additional commitment of public funds.

Conclusion

Supervised visitation is a valuable tool in preserving the potential for a healthy bond between a
child and a parent against whom harmful misconduct has been alleged. We object, however, to
courts' having indiscriminately allowed accounts of visitations to influence their determination of
custody. Because visitation records may distort instead of illuminate that decision, we endorse a
more guarded approach to consideration of such evidence. In particular, we propose a standard
designed to assure that admitted records truly assist the court in serving the best interest of the
child.

Until now, evaluation of visitation evidence has been predominantly the province of courts and
social workers operating in quiet collaboration. Our proposal is addressed to the family law bar,

²⁰⁷The presence of a court-appointed advocate is at best a partial substitute for evaluation by a mental health professional. Moreover, the process for appointing guardians ad litem has been subjected to considerable criticism. See Neustein & Goetting, supra note 108, at 111 (summarizing this criticism).

²⁰⁸See Michael S. Piraino, Lay Representation of Abused and Neglected Children: Variations on Court Appointed Special Advocate Programs and Their Relationship to Quality Advocacy, 1 J. CENTER FOR CHILD. & CTS. 63, 69 (1999) (describing resources for CASA programs as "universally scarce"), available at http://www.courtinfo.ca.gov/programs/cfcc/ resources/publications/journal/vol1.htm/063-072.pdf.

²⁰⁹E.g., William F. Goodling Child Nutrition Reauthorization Act of 1998, Pub. L. No. 105-336 (codified as amended in
scattered sections of 42 U.S.C. § 1751 et seq.); see 42 U.S.C.A. § 1751 (West 1994) (declaring congressional
policy "to safeguard the health and well-being of the Nation's children . . . by assisting the States . . . in providing an adequate
supply of foods and other facilities for the establishment, maintenance, operation, and expansion of nonprofit school lunch
programs").

²¹⁰See, e.g., 20 U.S.C.A. § 6301 (West Supp. 2002) (stating purpose of subchapter "to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education"); Ready to Learn Act, Pub. L. No. 102-545 § 2(1) (1992) (codified as amended in scattered sections of 20 U.S.C.) (describing Act's purpose "to expand the availability of educational and instruction video programming and supporting educational resources for preschool and elementary school children and their parents as a tool to improve school readiness and literacy").

²¹¹See, e.g., 42 U.S.C.A. § 9831 (West Supp. 2002) (stating purpose of Head Start Program is "to promote school readiness by enhancing the social and cognitive development of low-income children").

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The Troubling Admission of Supervised Visitation Records in Custody Proceedings

and ultimately to legislatures, whose intervention will be required to reform overly permissive admission of visitation records. Regardless of whether our particular standard is adopted, engagement by the legal community and public policy makers would probably lead to a more reasoned approach to reliance on this evidence. If this article helps to spur a wider discussion of this issue, it will have accomplished its purpose.

34

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Appendix A

35

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Table  1.  Statutes Codifying "Best Interest of the Child" Standard

Jurisdiction

Alabama

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

District of Columbia

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

Kentucky

Louisiana

Maine

Maryland

Massachusetts

Statute

Ala. Code § 30-2-40(e) (2001)
Alaska Stat. § 25.24.150(c) (Michie 2001) Ariz. Rev. Stat. § 25-403(A) (2001)
Ark. Code Ann. § 9-13-101(a)(1)(A)
(Michie 2002)

Cal. Fam. Code § 3011 (West 1994 & Supp. 2002)

Colo. Rev. Stat. Ann. 14-10-124(1.5) (West 2001)

Conn. Gen. Stat. § 46b-57 (1995)
Del. Code Ann. tit. 13, § 722(a) (1999)
D.C. Code Ann. § 16-911(a)(5) (2001)
Fla. Stat. Ann. § 61.13(1)(a) (West 1997)
Ga. Code Ann. § 19-9-3 (1999)
Haw. Rev. Stat. Ann. § 571-46(1) (Michie
1999)

Idaho Code § 32-717(1) (Michie Supp. 2002)

750 Ill. Comp. Stat. Ann. 5/602 (West 1999) Ind. Code Ann. § 31-17-2-8 (Michie 1997 & Supp. 1997)

Iowa Code Ann. § 598.41(1)(a) (West 2001) Kan. Civ. Proc. Code Ann § 60-1610(a)(3) (West Supp. 2002)

Ky. Rev. Stat. Ann. § 403.270 (Banks-
Baldwin 2001)

La. Rev. Stat. Ann. § 9:345(A) (West 2000) Me. Rev. Stat. Ann. tit. 19-A, § 1653(1) (West 1998 & Supp. 2001)

Md. Code Ann., Fam. Law § 9-102(2) (2001)

Mass. Gen. Laws Ann. ch. 208, § 31 (West 1998)

36

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Jurisdiction

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

Utah

Vermont

Virginia

Statute

Mich. Comp. Laws Ann. § 722.23 (West 2002)

Minn. Stat. Ann. § 518.17(1)(a) (West 1990 & Supp. 2002)

Miss. Code Ann. § 93-5-24(1) (1999 & Supp. 2001)

Mo. Ann. Stat. § 452.375(2) (West 1997 & Supp. 2002)

Mont. Code Ann. § 40-4-212(1) (2001)
Neb. Rev. Stat. § 42-364(1) (1998)
Nev. Rev. Stat. Ann. 125.480(1) (Michie 1998)
N.H. Rev. Stat. Ann. § 458.17(II) (1992)
N.J. Stat. Ann. § 9:2-4 (West 1993)
N.M. Stat. Ann. § 40-4-9(A) (Michie 2001)
N.Y. Dom. Rel. Law § 240(1)(a) (McKinney
1999)

N.C. Gen. Stat. § 50-13.2(a) (2001) N.D. Cent. Code § 14.09.06.2(1) (1997) Ohio Rev. Code Ann. § 3109.01(A)(1) (Anderson 2000 & Supp. 2001)

Okla. Stat. Ann. tit. 10, § 21.1(a) (West 1998)

Or. Rev. Stat. § 107.137(1) (1999)
23 Pa. Cons. Stat. Ann. § 5301 (West 2001)
R.I. Gen. Laws § 15-5-16(d)(2) (2000)
S.C. Fam. Ct. R. § 27(d) (1976)
S.D. Codified Laws § 25-4-45 (Michie
1999)

Tenn. Code Ann. § 36-6-401(a)
Tex. Fam. Code Ann. § 153.001(a)(1) (Vernon 1996)

Utah Code Ann. § 30-3-10(1) (2001)
Vt. Stat. Ann. tit. 15, § 665(b) (1989)
Va. Code Ann. § 20-124.3 (Michie 2000)

37

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Jurisdiction

Washington

West Virginia

Wisconsin

Wyoming

Statute

Wash. Rev. Code Ann. § 26.10.100 (West 1997)

W. Va. Code Ann. § 48-9-207(a) (Michie 2001)

Wis. Stat. Ann. § 767.24(2)(a) (West 2001)
Wyo. Stat. Ann. § 20-2-201(a) (Michie
2001)

38

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Appendix B

Table  2.  Statutes With Rebuttable Presumptions Against Custody For Batterers

Jurisdiction

Alabama

Arkansas

California

District of Columbia

Florida

Hawaii

Illinois

Iowa

Louisiana

Massachusetts

Minnesota

Nevada

North Dakota

Oklahoma

Oregon

South Dakota

Texas

Wisconsin

Statute

Ala. Code § § 30-3-131 to 30-3-133 (2001)

Ark. Code Ann. § 9-13-101(5) (Michie 2002)

Cal. Fam. Code § 3030 (West 1994 & Supp. 2002)

D.C. Code Ann. § § 16-911(5); 914(a)(2) (2001)

Fla. Stat. Ann. § 61.13(2)(b)(2) (West 1997 & Supp. 2002)

Haw. Rev. Stat. Ann. § 571-46(9) (Michie 1999)

750 Ill. Comp. Stat. Ann. 5/602(c) (West 1999)
Iowa Code Ann. § 598.41(2)(c) (West 2001)
La. Rev. Stat. Ann. § 9:364(A) (West 2000)
Mass. Gen. Laws Ann. chs. 208, § 31A,
209, § 38, 209C, § 10(e) (West Supp.
2002)

Minn. Stat. Ann. § 518.17(2)(d) (West 1990 & Supp. 2002)

Nev. Rev. Stat. Ann. § 125.480(6) (Michie 1998)

N.D. Cent. Code § 14.09.06.2(i)(j) (1997) Okla. Stat. Ann. tits. 10, § 21.1(d), 43, § 112.2 (West 1998)

Or. Rev. Stat. § 107.137 (1999)
S.D. Codified Laws § 25-4-45.5 (Michie
1999)

Tex. Fam. Code Ann. § 153.004(b) (Vernon Supp. 2002)

Wis. Stat. Ann. § 767.24(2)(b)(2)(c) (West 2001)

39

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Appendix C

40

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Table  3.  Domestic Violence As One Factor In Determining Child's Best Interest

Jurisdiction

Alaska

Arizona

Colorado

Delaware

Georgia

Idaho

Indiana

Kansas

Kentucky

Maine

Maryland

Michigan

Missouri

Montana

Nebraska

New Hampshire

New Jersey

New Mexico

New York

North Carolina

Statute

Alaska Stat. § 25.24.150 (Michie 2001) Ariz. Rev. Stat. Ann. § 25-403(e) (West Supp. 2002)

Colo. Rev. Stat. Ann. § 14-10-124 (1.5)(b)(v) (West 2001)

Del. Code Ann. tit. 13, § 722(a)(7) (1999) Ga. Code Ann. § 19-9-3(a)(3)(b) (1999 & Supp. 2001)

Idaho Code § 32-717(1)(g) (Michie Supp. 2002)

Ind. Code Ann. § 31-17-2-8 (Michie Supp. 1999)

Kan. Civ. Proc. Code Ann. § 60-
1610(a)(3)(B)(vii) (West Supp. 2002)
Ky. Rev. Stat. Ann. § 403.270(2) (Banks Baldwin 2001)

Me. Rev. Stat. Ann. tit. 19-A, § 1653(2) (D)(2) (West 1998 & Supp. 2001)

Md. Code Ann., Fam. Law § § 9-101, 9-101.1 (1999)

Mich. Comp. Laws Ann. § 722.23(k) (West 2002)

Mo. Ann. Stat. § 452.375(2)(5) (West 1997 & Supp. 2002)

Mont. Code Ann. § 40-4-212(1)(f) (2001) Neb. Rev. Stat. Ann. § 42-364(2)(d)
(Michie 1998)

N.H. Rev. Stat. Ann. § 458.17(II)(c) (1992)
N.J. Stat. Ann. § 9:2-4 (West 1993)
N.M. Stat. Ann. § 40-4-9.1 (Michie Supp.
2002)

N.Y. Dom. Rel. Law § 240(1)(a) (McKinney 1999)

N.C. Gen. Stat. § 50-13.2(b) (2001)

41

The Troubling Admission of Supervised Visitation Records in Custody Proceedings

Jurisdiction

Ohio

Pennsylvania

Rhode Island

South Carolina

Tennessee

Vermont

Virginia

Washington

West Virginia

Wyoming

Statute

Ohio Rev. Code Ann. § 3109.051(A) (An-
derson 2000 & Supp. 2001)

23 Pa. Cons. Stat. Ann. § 5303(a) (West 2001)

R.I. Gen. Laws § 15-5-16(g)(1) (2000) S.C. Code Ann. § 20-7-1530 (Law. Co-op. Supp. 2001)

Tenn. Code Ann. § 36-6-106(a)(8) (2001) Vt. Stat. Ann. tit., § 665(b)(9) (Supp. 2001) Va. Code Ann. § 20-124.3(9) (Michie 2002) Wash. Rev. Code Ann. §

26.09.191(2)(a)(ii)-(iii) (West 1997)
W. Va. Code Ann. § 48-11-209 (Michie
2001)

Wyo. Stat. Ann. § 20-2-201(c) (Michie 2001)