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 visitation was developed to protect.

Part I of this article explores the purposes of supervised visitation programs and the legal community'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 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.

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 programs^[6] address this problem by providing ongoing contact between a child and his or her noncustodial^[7] parent in the presence of a neutral third party in cases where physical or sexual abuse, neglect, parental dysfunction, or domestic violence has been alleged.^[8] These programs often include a variety of services^[9] 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]

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, divorce litigation involving allegations of child abuse or neglect by a parent qualifies as "high-conflict" 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 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 emotionally 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) a pastiche of funding sources.^[39] The federal Violence Against Women Act of 2000^[40] 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 stalking^[41] 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.

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 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 format^[53] and a bubble-sheet.^[54] According to the SVN Guidelines, observation 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 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 cameras^[58] 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 SVN-recommended 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 acknowledged that there was "intense pressure" from courts for programs to give opinions based on their 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 system^[67] 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' litigation^[71] 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 to the referral^[73]-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 staff^[74]. 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, administrative 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 abuse^[76]. 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 appointment^[78] to the exit of the parent from the center, is meticulously 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 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 surroundings, sympathetic staff (who have oriented, introduced, and reassured the children^[90]) and a physical environment which has been specially designed to be child-friendly^[91]-decorated with bright colors and scattered with toys and games^[92]-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]

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 group^[96]. 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 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 minimization^[102] 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 visitation^[104]. 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 environment^[106] 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 relationship. 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 cases^[108]. 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 system^[110] that is suspicious of the veracity of the allegations and convinced 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 Syndrome.^[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 frequently 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 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, assessing 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]

At the same time, the Kansas Guidelines mandate that each client record should:

[I]nclude[] at a minimum:

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]

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 evaluators 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 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 determinations 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 case^[138] 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?

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.

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

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 declarant.^[145]

1. The Business Records Exception

A more plausible candidate for overcoming the hearsay barrier is the exception for reports and records "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 efficiency^[150] 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 corroborated 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 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 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 of reports without explanation^[163]-refute the position that GAL reports should not be routinely admitted 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 excluded.^[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 procedural 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. Perales^[168], 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. Eldridge^[170], 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 about custody implicate an innate fundamental liberty.^[173] Moreover, while not mechanical, determination 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.

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 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 relevance, 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 supervision."^[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, adoption 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 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 unfounded 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 expression. An ethnocentric monitor might, for example, write critically of a parent perceived as 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 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 admissibility 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.

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]

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 experience 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, fondling^[200]-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 misinterpreted, few would deny the serious presumptive relevance of conduct qualifying as a critical incident.^[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 predicate. 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 responsibility 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 proceedings, 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 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 development^[211] 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.

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, 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.