The Troubling Admission of Supervised
Visitation Records in Custody
Proceedings

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

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

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,

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 "ob- jective records." Finally, Part IV proposes a standard limiting the circumstances under which courts may admit program records into evidence in custody proceedings.

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

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).