ADVANCED TRIAL
TECHNIQUES IN CUSTODY CASES
OUTLINE FOR
CROSS-EXAMINATION OF EXPERTS IN CUSTODY CASES
Lynne Z. Gold-Bikin, Esquire
Source: http://www.aaml.org/Articles/2002-3/Advanced%20Trial%20Techniques%20-%20Bikin.htm
Family lawyers have, over the past number of years, grown into the complex practice of dividing the assets during the marriage. Additionally, they have presided over custody cases in which the future of children is to be determined. Divorce and dissolution of marriage have become a complex area in which practitioners negotiate, mediate, and litigate the futures of children's lives in the custody arena, and the futures of the parties' lives in the economic arena. In all of these complexities, we are dependent upon experts and their methods of evaluation, valuation, and appraisal. In the custody cases we handle psychiatrists, psychologists, sociologists and other mental health professionals have generated an industry in which they claim to be able to predict the future through their tests and interviews. In our economic cases, the economists, accountants, actuaries, and business appraisers take front and center in aiding the courts to value assets and predicting their future worth. The question we pose is, "have we, as lawyers, permitted these experts to set the tone of the valuations from a purely business standpoint and defeat the equitable tone that our various divorce codes say should be the case in the dissolution process?"
Let me start these comments by saying that the purpose of these remarks is to start a dialogue on how we approach valuations of businesses and practices and evaluations both children and the economics of the assets for dissolution purposes. I question whether we have become so inundated with these cases that we grasp, like the drowning, the life preservers of answers thrown to us by the experts rather than questioning their worth to divorcing couples. In other words, is it time to break the paradigm of tests and formulas and challenge the existing approaches currently used to place children and to value assets?
Turning first to custody, the use of psychological tests and the DSM IV is now commonplace in the determination of custody placement. Few psychologists testify in court without first administering the MMPI or MMPI II, the Rorschach, or other projective tests. Judges who are often overwhelmed by not only their crowded court dockets but also by the gravity of what they are asked to decide, often give heavy weight to these folks who hold themselves out as "forensic psychologists or psychiatrists." The mumbo-jumbo of psychometric tests, additionally, adds to the mystique of these experts and can often overwhelm the balance of the evidence such as the testimony of witnesses.
As lawyers, we must recognize that these psychometric tests were never developed for custody cases. We must also recognize that psychiatrists and psychologists were not trained to determine the future placement of children. Why have we allowed these tests to take such an important part in custody cases with two normal healthy parents who are simply fighting over who shall have the primary responsibility to raise the children? Why are we not challenging the tests themselves since the base group against whom our clients are being measured were not people going through custody cases and, as such, were not under the same kind of stress in which our clients find themselves. Why are we permitting psychologists to go around the country and require legislatures to protect their files so we cannot see whether they are doing what they claim to be doing and whether or not they are giving the tests in the form that the tests that are required to be given? Why are these doctors attempting to prevent us from doing our jobs?
As for valuation of businesses, the valuations that are being done are being done to determine what is called "fair market value". According to the United States Treasury Regulations, fair market value is defined as the price at which the property would change hands between a willing buyer and willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts.
The Internal Revenue Service promulgated Revenue Ruling 59-60 which sets forth eight factors to consider valuing shares of closing held stock. All of this, of course, is for the sale of these business. Businesses and practices in divorce cases are not being sold. These assets are ongoing businesses with a stream of income that will continue being paid to the owner of that business. Shouldn't we be looking at the investment value of that business? Shouldn't we also be looking at the intrinsic value to the one who is able to keep that business? For example, where the expert has indicated that the reasonable compensation to the employee is less than the net earnings to that company, shouldn't the other party get an asset that will give them the same amount of excess earnings through that investment? To put it another way, if the excess earnings over reasonable compensation are $50,000, shouldn't the other spouse be given an asset that will generate income to them of the same $50,000?
If one party is awarded the house, is it fair to give the other party the amount of money that one would get if the house sold without recognizing the cost to the non-home owner of applying for another mortgage, paying an higher interest rate on the mortgage, having to move, and having to replace drapes, carpet, and other fixtures.
What I am asking is "Is it fair to deal with assets as if they are being sold when we know they are not?"
Various states and commonwealths around the United States have recognized intrinsic value and investment value under certain circumstances. New York, the O'Hara case, recognized that a medical degree which had been acquired during the marriage through the efforts of both parties, should be valued to compensate the non-degree holder. Stock options, though not currently valuable, have a value in the future in that the person holding the stock option will be able to decide whether or not they wish to exercise those options over the next number of years. Is it fair to the non-option holder to say that since the stock is currently selling at less than the option price, that option has not value? We know that is not so.
As divorce lawyers, we have an obligation to our clients to get them what is fair, reasonable, and equitable. Our job is not only to fight to ensure that we get the appropriate percentage in any divorce case, but that the assets over which we are fighting is fairly and equitably valued. Isn't it time that we stopped deferring to accountants and business evaluators who reach into the air to grab a capitalization rate and tell us what the business would be worth if it were liquidated or sold? Isn't it time we stop looking at experts as the answer givers and rather look at what is fair and equitable on behalf of our clients? Isn't it time that we begin talking about this?
Use of the American Psychological
Association Guidelines
Once the states began to recognize the equal rights amendments to their various state constitutions, fathers began indicating that they had an equal right to custody of their children. Custody litigation burgeoned and the courts, distraught over the obligation to make decisions about the future of children, turned to the mental health profession. Psychologists found a new use of their talents and began carving out a niche as the court's experts in determining custody and visitation schedules. Despite the fact that their expertise was not in predicting the future of children based on who was parenting them, they quickly became the recognized experts in court not only evaluating children, but also advising the court as to how many nights a child should spend in the home of each parent.
Additionally, the caselaw in various states began to set forth certain "rules". One of the most prominent ones: that siblings should be raised together. Additionally, although the "tender years presumption" was set aside in most instances, the status quo or continuity of care became another firm consideration in the placement of children.
Paralleling this, the American Psychological Association began to look into setting its own house in order about how psychologists should be utilized in custody cases. Through a number of years, proposed "guidelines" for use in child custody evaluations were circulated among the committees of the American Psychological Association. In 1994, the APA published their Guidelines for Child Custody Evaluations in Divorce Proceedings.1 These guidelines had been drafted by the Committee on Professional Practice and Standards (COPPS) a Committee of the Board of Professional Affairs (BPA) with input from the Committee on Children, Youth and Families (CYF). They were adopted by the counsel of representatives of the American Psychological Association in February 1994.
What impact do the guidelines have on custody evaluations? It should first be noted that while these are called "guidelines" they have been circulated among the members of the American Psychological Association for no less than five years. Additionally, family law practitioners, utilizing psychologists, should insure they do their evaluations based on their own standards. They know better than we the limitations that their own organization places upon them. With that said, an evaluation of the guidelines is helpful not only for direct examination of ones own witness, but cross examination of an opposing witness.
According to the guidelines:
The primary purpose of the evaluation is to assess the best psychological interests of the child. The primary consideration in a child custody evaluation is to assess the individual and family factors that affect the best psychological interest of the child.
Consequently, the primary consideration has to do with the psychological interest of the child rather than any other kind of interest. We, as lawyers, must make sure that the psychologists restrict themselves to the psychological interests of the child and that their testimony is one "brick" in the structure that we hope to build for the court. They are not the "end-all, be-all" of the determination. They provide one piece of evidence but their testimony should not be dispositive.
Counsel may wish to explore the following questions:
1. What is meant by "psychological interest"?
2. Why is psychological interest important?
3. What specific psychological interests does each child have?
4. Do the psychological interests of any siblings differ from the subject child?
5. What is the impact of the child's wishes?
6. By what process did the psychologist address the issue of which parent fulfills the primary caretaker role?
7. Did the psychologist determine which parent fulfilled the daily needs of the child?
8. Did the psychologist inquire as to which parent participated in and was aware of developmental milestones?
9. Did the psychologist fully inquire into each parent's background and history? How?
10. By what process did the psychologist observe the children with the family?
11. Were the psychologist's observations of the family equally distributed?
12. Were the observations structured or unstructured? Why?
13. Who brought the child to the visits?
14. Where did the visits occur?
Additionally, the guidelines indicate that:
The focus of the evaluation is on parenting capacity, the psychological and developmental needs of the child, and the resulting fit. In considering psychological factors affecting the best interest of the child, the psychologist focuses on the parenting capacity of the prospective custodians in conjunction with the psychological and developmental needs of each involved child. This involves (a) an assessment of the adults' capacities for parenting, including whatever knowledge, attributes, skills, and abilities, or lack thereof, are present; (b) an assessment of the psychological functioning and developmental needs of each child and of the wishes of each child where appropriate; and (c) an assessment of the functional ability of each parent to meet these needs, including an evaluation of the interaction between each adult and child.
The values of the parents relevant to parenting, ability to plan for the child's future needs, capacity to provide a stable and loving home, and any potential for inappropriate behavior or misconduct that might negatively influence the child also are considered. Psychopathology may be relevant to such an assessment, insofar as it has impact on the child or the ability to parent, but it is not the primary focus.
This is a critical paragraph in that it not only limits what the psychologist should be doing in terms of looking at parenting capacity, but it sets forth the psychological factors on which the psychologist should focus. By indicating that the parenting capacity of the prospective custodians should be viewed in conjunction with the psychological and developmental needs of each involved child, it sets up the possibility that the parenting capacity and resulting fit may differ with each child in the family.
In light of the fact that the caselaw seems to suggest that siblings should be raised together, this sets up a dichotomy for the court's determination.
The guidelines suggest that the evaluator should consider how the values of the parents relate to parenting, as well as their ability to plan for the child's future and the capacity to provide a stable and loving home. Additionally, psychopathology of the parties can be relevant to the assessment.
Questions that can be asked are:
1. What is meant by "parenting capacity", the child's "needs" and the "resulting fit"?
2. Why is "parenting capacity", the child's "needs" and the "resulting fit" important?
3. What are the specific capacities of each parent?
4. What are the specific needs of the child?
5. Do the needs of any siblings differ from the subject child?
6. Why doesn't the other parent meet the needs of the child?
7. How was parenting capacity analyzed?
8. What process and factors were used to compare the parental capacities of each parent?
9. Was the history of each parent discussed?
10. Who brought the child to the interview? Does this make a difference?
11. Were tests given? Which ones?
12. Who administered the tests?
13. Were the tests developed specifically for custody evaluations?
14. Has the psychologist effectively and accurately assessed and explained each one?
The general guidelines, in preparation for the child custody evaluation, provide as follows:
The role of a psychologist is that of a professional expert who strives to maintain an objective, impartial stance. The role of a psychologist is as a professional expert. The psychologist does not act as a judge, who makes the ultimate decision applying the law to all relevant evidence. Neither does the psychologist act as an advocating attorney, who strives to present his or her client's best possible case. The psychologist, in a balanced, impartial manner, informs and advises the court and the prospective custodians of the child of the relevant psychological factors pertaining to the custody issue. The psychologist should be impartial regardless of whether he or she is retained by the court or by a party to the proceedings. If either the psychologist or the client cannot accept this neutral role, the psychologist should consider withdrawing from the case. If not permitted to withdraw, in such circumstances, the psychologist acknowledges past roles and other factors that could affect impartiality.
Therefore, the guidelines indicate that the psychologist should not act as a judge who "makes the ultimate decision applying the law to all relevant evidence". This suggests that while the psychologist can provide information to the Court, they should not be the ones to determine the placement of the child or children.
Counsel might consider the following questions:
1. What is the psychologist's track record in court appearances?
2. Does he or she usually recommend custody to the mother or the father?
3. What is the psychologist's track record with opposing counsel?
4. Who is paying the psychologist?
5. Was he or she court appointed?
6. Did the psychologist spend equal time evaluating each parent?
7. Is the psychologist involved with therapy for either of the parents or the child?
The guidelines further provide:
A psychologist contemplating performing child custody evaluations is aware that special competencies and knowledge are required for the undertaking of such evaluations. Competence in performing psychological assessments of children, adults, and families is necessary but not sufficient. Education, training, experience, and/or supervision in the areas of child and family development, child and family psychopathology, and the impact of divorce on children help to prepare the psychologist to participate competently in child custody evaluations. The psychologist also strives to become familiar with applicable legal standards and procedures, including laws governing divorce and custody adjudications in his or her state or jurisdiction.
The psychologist uses current knowledge of scientific and professional developments, consistent with accepted clinical and scientific standards, in selection data collection methods and procedures. The Standards for Educational and Psychological Testing (APA, 1985) are adhered to in the use of psychological tests and other assessment tools.
In the course of conducting child custody evaluations, allegations of child abuse, neglect, family violence, or other issues may occur that are not necessarily within the scope of a particular evaluator's expertise. If this is so, the psychologist seeks additional consultation, supervision, and/or specialized knowledge, training, or experience in child abuse, neglect, and family violence to address these complex issues. The psychologist is familiar with the laws of his or her state addressing child abuse, neglect, and family violence and acts accordingly.
Additionally, the psychologist should gain specialized competence in performing this child custody evaluation. This might mean not only having the psychologist become familiar with applicable legal standards and procedures, but may also require where such things as suspected child abuse or alcoholism in a family is at issue, the psychologist must know something about those areas before they make any recommendations to the Court. Question to be asked are:
1. What specialized training does the psychologist have?
2. What research has he or she done?
3. Has the psychologist ever testified in court before?
4. Was the psychologist appointed by the Court?
5. What has been the psychologist's court involvement?
6. How is a child's evaluation different from an adult evaluation?
7. How is this psychologist qualified to conduct a child evaluation?
8. What standards were used to conduct the evaluation?
9. Were they current?
10. What tests were used?
11. Have they been updated?
12. Do the tests used accurately represent the appropriate test group?
The psychologist must be aware of personal and societal biases and must be non-discriminatory. That would go to such areas as age, gender, race, ethnicity, national origin, religion and, specifically, sexual orientation. In the event that a psychologist is biased against gays or lesbians in custody cases, it is suggested that they should not be the evaluator in that particular case. The guidelines specifically provide as follows:
The psychologist is aware of personal and societal biases and engages in nondiscriminatory practice. The psychologist engaging in child custody evaluations is aware of how biases regarding age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, language, culture, and socioeconomic status may interfere with an objective evaluation and recommendation. The psychologist recognizes and strives to overcome any such biases or withdraws from the evaluation.
Questions to be asked would include:
1. Is the psychologist aware of any inherent bias in custody evaluations and determinations?
2. If so, what are they?
3. How has he or she avoided them? Or involved them?
4. Has the psychologist avoided any sexual variables in making his or her recommendation and instead focused on parenting capacity and the resulting fit?
Another important and dramatic guideline is the one that indicates:
The psychologist avoids multiple relationships. Psychologists generally avoid conducting a child custody evaluation in as case in which the psychologist served in a therapeutic role for the child or his or her immediate family or has had other involvement in that compromise in the psychologist's objectivity. This should not, however, preclude the psychologist from testifying in the case as a fact witness concerning treatment of the child. In addition, during the course of a child custody evaluation, a psychologist does not accept any of the involved participants in the evaluation as a therapy client. Therapeutic contact with the child or involved participants following a child custody evaluation is undertaken with caution.
A psychologist asked to testify regarding a therapy client who is involved in a child custody case is aware of the limitations and possible biases inherent in such a role and the possible impact on the ongoing therapeutic relationship. Although the court may require the psychologist to testify as a fact witness regarding factual information he or she became aware of in a professional relationship with a client, that psychologist should generally decline the role of an expert witness who gives a professional opinion regarding custody and visitation issues (see Ethical Standard 7.03) unless to ordered by the Court.
Where the psychologist has previously served in a therapeutic role for any members of the family, they should not be doing the evaluation in the case. Although this might not preclude the psychologist from testifying in the case as a fact witness, they should not be the ones who are doing the evaluation for custodial purposes. Important questions to ask include:
1. Has the psychologist been involved in counselling any family members in the past?
2. Has the psychologist attempted to mediate the dispute in the course of the evaluation?
3. Has the psychologist made any referrals to address the psychological needs of the participants at any time?
Another important issue involves the psychologists necessity to use multiple methods of data gathering.
The psychologist uses multiple methods of data gathering. The psychologist strives to use the most appropriate methods available for addressing the questions raised in a specific child custody evaluation and generally uses multiple methods of data gathering, including, but not limited to, clinical interviews, observation, and/or psychological assessments. Important facts and opinions are documented from at least two sources whenever their reliability is questionable. The psychologist, for example, may review potentially relevant reports (e.g., from schools, health care providers, child care providers, agencies, and institutions). Psychologist may also interview extended family, friends, and other individuals on occasions when the information is likely to be useful. If information is gathered from third parties that is significant and may be used as a basis for conclusions, psychologists corroborate it by at least one other source wherever possible and appropriate and document this in the report.
This would mean that the psychologist should not be seeing only one parent, or should not be making a recommendation based on one visit in one parties' home. It is suggested in the guidelines that such important facts and opinions should be documented from at least two sources if the reliability is questionable. For example, the psychologist should be reviewing potential reports from schools and health care providers as well as interviews of extended families and friends if the information is likely to be useful. Although the guidelines themselves do a lot of qualifications, this guideline should not be diminished in its importance. Questions to be asked:
1. Has the psychologist conducted interviews? With whom?
2. What tests were performed?
3. How were they scored?
4. How were they interpreted?
5. Could they have been interpreted differently?
6. What collateral contacts were made?
7. How were collateral interviews conducted?
8. Were they biased for one side or the other?
9. Is there any information the psychologist did not obtain that he or she might have thought was relevant?
10. Was the basis of the recommendation grounded on recent behavior or past conduct? How is it relevant?
Additionally, one of the guidelines indicates that:
The psychologist neither over-interprets nor inappropri-ately interprets clinical or assessment data. The psychologist refrains from drawing conclusions not adequately supported by the data. The psychologist interprets any data from interviews or tests, as well as any questions or data reliability and validity, cautiously and conservatively, seeking convergent validity. The psychologist strives to acknowledge to the court any limitations in methods or data used.
Often psychologists use clinical tests as part of their evaluation. None of the clinical tests normally used, such as the Rorschach or the MMPI I or II, were developed for use in custody cases and the base group from which the data was drawn were not people undergoing divorce or custody. Therefore, their value in a custody case, it is suggested, should be diminished. The guideline itself indicates that the psychologist should refrain from drawing conclusions that are not adequately supported by the data. In other words, although these tests can be utilized,m they should not stand alone and psychologists should use them in conjunction or as support of other more reliable data. Questions:
1. What tests were administered?
2. Has the psychologist been influenced in his or her interpretation by the attorney or by the client?
3. Has the psychologist allowed the attorneys to interpret the data?
4. Were the standardized tests scored and interpreted by the psychologist or were they done by computer? Or perhaps another psychologist?
5. Are these tests recognized in the field as appropriate for use in evaluating competence for parenting?
6. Were they developed for use in custody cases or for other purposes?
7. What method(s) of evaluation was used in evaluating these tests?
8. What follow up is done to determine whether the placement recommended by these tests was the appropriate placement?
Equally important is the guideline that says:
The psychologist does not give any opinion regarding the psychological functioning of any individual who has not been personally evaluated. This guideline, however, does not preclude the psychologist from reporting what an evaluated individual (such as the parent or child) has stated or from addressing theoretical issues or hypothetical questions, so long as the limited basis of the information is noted.
In other words, when the psychologist begins to testify about a client who has not been evaluated based on information that was given in a hearsay matter, that is in violation of the guidelines and should be immediately challenged. Questioning would include:
1. Has the psychologist made any interpretation based on evidence he or she did not observe?
2. Can the psychologist make a recommendation?
3. What is the recommendation?
4. What is the basis for the recommendation?
5. Why does the recommendation not favor the other parent?
Interestingly enough, the guideline as to recommendations is very specific. It reads:
Recommendations, if any, are based upon what is in the best psychological interest of the child. Although the profession has not reached consensus about whether psychologists ought to make recommendations about the final custody determination to the courts, psychologists are obligated to be aware of the arguments on both sides of this issue and to be able to explain the logic of their position concerning their own practice.
If the psychologist does choose to make custody recommendations, these recommendations should be derived from sound psychological data and must be based on the best interests of the child in the particular case. Recommendations are based on articulated assumptions, data, interpretations, and inferences based on established professional and scientific standards. Psychologists guard against relying on their own biases or unsupported beliefs in rendering opinions in particular cases.
The guideline goes on further in text to indicate that the profession may not have yet reached consensus about whether psychologists ought to make recommendations about the final custody determination at all. They are certainly obligated to become aware of the arguments of the issue and, additionally, should limit their recommendations to what is in the best psychological interest of the child or, as earlier stated, the parenting capacity and the resulting fit between the child and the potential caretaker.
1. What is the recommendation?
2. What is the basis of the recommendation?
3. Would "X" cause him or her to have a different opinion?
4. What differences would there by in the child's development if the other parent were awarded the residential placement.
5. What differences would there by in the child's development or life if the custodial schedule different from the recommendation of the expert?
Additionally, the guidelines require that:
The psychologist maintains written records. All records obtained in the process of conducting a child custody evaluation are properly maintained and filed in accord with the APA Record Keeping Guidelines (APA, 1993) and relevant statutory guidelines.
All raw data and interview information are recorded with an eye toward their possible review by other psychologists or the court, where legally permitted. Upon request, appropriate reports are made available to the court.
There are APA Record Keeping Guidelines as well as relevant statutory guidelines. Consequently, counsel should insure that they have access to the written records to insure that when the psychologist gives his or her report, it is within not only the guidelines but also the records and interviews as well as the test results that were actually achieved. Important questions to ask:
1. Has the raw data been disclosed to the attorneys?
2. Should it be?
3. If so, how has it been interpreted?
4. Has the psychologist maintained adequate records?
5. Do they have them with them in court?
6. What was the record keeping process during the course of the evaluation?
7. Is the recommendation supported by the evidence gathered by interviews and collateral contacts?
It should be clear from a brief review of the guidelines that they are a critical tool in both presenting a case and cross-examining a case from the other side. As family law practitioners, we should require our experts to follow their own guidelines and hold them to those standards. Additionally, objecting to a proposed schedule on the basis of the guidelines limitation is something that all family law practitioners should consider. These psychologists are not the judges. It is up to the judge to make the final determination with the help of considerable evidence. A part of the evidence, and maybe even a small part of the evidence, is the testimony of the expert psychologist.
The Use and Misuse of Mental
Health Professionals in Custody Cases
A jury trial is relatively easy for a judge. Other than making rulings on evidence and preparing points for charge, the decision is in the hands of the jury. Absent those few cases where you apply jury nullification, the jury has the responsibility for the result of the case.
A bench trial, on the other hand, puts the responsibility squarely in your lap. You are the one who makes the decisions and you are the one has to live those decisions. When you are dealing with the division of furniture, where a property line ends, an accident case, or even corporate cases, you are basically dealing with money. You can sleep easy after such a decision. When, however, you deal with children and their lives and how they will grow up, that's what gets you in the pit of your stomach. When you have to make a decision about a juvenile or a custodial placement, that is where the rubber hits the road.
Unfortunately, the training that judges have does not really prepare them for such decisions. Indeed, most judges have never handled family law cases or juvenile cases in which they are exposed to custody battles or the depths to which parents will go as they pull their children back and forth across the parking lot like Turkish taffy. They are not aware of the impact of their placements, and the result on the children. So, at least 25% of you will ultimately rely on the mental health professionals. But should you? What do they know and is it appropriate for such decisions to be made or "turfed" for mental health professionals, who did not graduate with a crystal ball in their hands? I come here not to praise Caesar, but to bury him.
In today's custody world, experts are used in almost every case. This hundred million dollar "industry" has taken over what factors are to be used in determining where a child should be placed. The standard "best interest" has been in the literature for close to thirty years and these so-called experts are called upon to aid the court in determining what placement will be in the best interest of the child. There is no problem in their helping the court but why are we letting them take it over? Why is there such reliance on these so-called experts; perhaps, because relief from responsibility comes to a judge who can say "Well, I relied on my expert and, they know more than I do." But, do they? And, if they do, why do they all disagree with each other? If Mother brings in an expert and Father brings in an expert and they each say something different, does one know more than the other? If one has been in practice longer or has an additional degree, does this give their testimony more weight?
In 1997, the American Bar Association Family Law Section and the American Psychological Association had a joint meeting in Los Angeles. The question was asked of the psychologist, is there any difference in the way a child turns out if the children are with mother ten days and father four days, or with mother nine days and father five days? The answer from all of the experts was, no. If there is not that much difference, why are they making recommendations as to schedules or as to placement? It seems to me that once a psychologist says they are both fit parents, they ought to step down. Then it is up to all of the other factors for the judge to consider.
What can a psychologist do? In 1994 the American Psychological Association published guidelines that had been conferenced for more than five years. These guidelines for child custody evaluations in divorce proceedings had come about as a result of the work of many of the committees of the APA including the ethics committee in discussing the questions that had been raised in regard to the misuse of psychologist's influence in custody cases. The psychologists wrote that "Particular competencies and knowledge are required for child custody evaluations to provide adequate and appropriate psychological services to the court."[1]
It is important to be familiar with these guidelines, because not only are they a structure as to what the psychologists can do, but there are also limitations on what they should do.
According to the guidelines, "The primary purpose of the evaluation is to assess the best psychological interest of the child." But, as I am fond of saying, this is only one brick in the wall that is being used to build a case. The psychological interest of the child is only one small part of what should be utilized in the determination of where a child should be placed.
The guidelines go on to say that "the focus of the evaluation is on parenting capacity, the psychological and developmental needs of the child, and the resulting fit." In order to determine parenting capacity and the psychological and developmental needs of the child, the psychologist should be making "an assessment of the functionability of each parent to meet these needs including an evaluation of the interaction between each adult and child." Having a psychologist make this assessment is logical. But, does the psychological and developmental need of a child change as a child gets older? Psychological professionals are hired by both the warring mother and father or, sometimes, appointed by the court. If the court makes an appointment, there might be three professionals in the courtroom. There will probably be three opinions as to the fit between the child and parent.
What is parenting capacity? What does this mean? Does it mean who can put a better meal on the table? Who will provide a better education? Who is stricter? Who is better equipped to provide the religious training? It appears that determining parenting ability is not only a rather daunting job but also, based on the opinions that are brought to the case by the psychologist.
Of greater concern is the series of reversals by appellate courts of judicial decisions when they do not agree with the expert's opinions. Once the expert gives a recommendation for placement, appellate courts in Wisconsin and New York State, to name a few, have reversed the trial court where they do not agree with the psychologist and, indeed, chastise them for not following the expert's recommendation. Has the black robe passed to the experts? A psychologist should do what they are trained to do. What their guidelines tell them they may do. The final decision should be yours.
Another guideline states: "The role of the psychologist is that of a professional who strives to maintain an objective and impartial stance." Just as judges do not come on the bench with a tabula rasa, neither do psychologists come to evaluations with no opinions of their own as to what makes a good mother or a good father. Certain lawyers tend to hire certain experts. If that expert recommends custody for the lawyer's clients on a regular basis, that expert will continue to be hired by that lawyer. Where, on the other hand, the expert recommends custody half the time for the one who has hired him and half the time for the opposing side, does anyone in this room really believe that this expert will continue to be hired by that lawyer? How then can a psychologist maintain an objective and impartial stance if they wish to continue getting business from that particular law firm?
While it is true that many fine lawyers will want an honest expert who will tell them the truth and give an honest evaluation, there are others for whom winning is more important than truth. By preventing any mental health professional from making custody recommendations, the Court takes back the final decision in the custody determination. Their job is to give psychological information. Your job is to integrate it with the other facts and make the final decision.
Another guideline is that the psychologist should gain "specialized competence". What does that mean? If the case involves a gay or lesbian parent asking for custody, for example, what specific expertise is required? There are people who make a living out of doing research in the area of the impact of gay and lesbian parents on raising their children. 90% of gay and lesbian children are raised by heterosexual parents. If the expert is not aware of that statistic, how are they helpful in this kind of a case? When a parent is an alcoholic, what special expertise is necessary? Shouldn't they know the rate of recidivism in alcoholism? Shouldn't they know about "situational alcoholism" where, after the divorce, the alcoholism ceases? Isn't that the kind of expertise that is necessary? How about allegations of child abuse, neglect or family violence and its impact on children who witness this in their family? Recently we saw the expert witness recommending custody to a father who had been accused of beating his wife and ultimately killing her. The fact that OJ Simpson was accused of, and later found liable in a civil action for murdering the mother of his children, did not prevent him from having custody of the children. When the psychologist in that case recommended custody to Father and ignored the impact of physical abuse of the mother on the perception of the children, should the judge have followed that recommendation? Many psychologists disagree on the issue of the impact of domestic violence in custody cases. The kind of specialized competence that the guidelines envisioned required special expertise on the impact of domestic violence on children. Does a case turn on which expert is in the courtroom? Sure it does.
The guidelines also require the psychologist to "be aware of personal and societal biases" and suggests that they engage in non-discriminatory practices. Here, again, the issue of sexual orientation might be an issue. If a particular psychologist believes that a gay father should never have the opportunity to raise a child, how does the judge know if this is science or bias? Where a psychologist believes that women should be at home with their children and, if they are out working, they are not properly parenting, is that bias or science? The guidelines recognize that biases regarding age of a parent or gender or race are among some of the potential biases that should be avoided. Does anyone really believe that a psychologist can put aside his or her bias in making these determinations? We have seen too many custody cases in which working mothers lose children to working fathers due to the biases of the mental health professionals. The expectation level seems to differ as to men and women as parents. Where a man does basic things such as cooking or visiting school conferences, he gets an A+. If mom does not do these things, she is criticized. Is this science or a bias?
"The psychologist avoids multiple relationships." This particular guideline indicates that where the psychologist has been the treating therapist, they should not now come in and act as the evaluator. While they can testify as fact witnesses, they can not evaluate the other parent in a custody determination. Too often, a treating psychologist wants to help their client through testimony, but the guidelines, appropriately, recognize the limits that should be placed on this dual function. Treating psychologists will have a natural bias toward their own patients.
The guidelines require the psychologist to use "multiple methods of data gathering." This includes, but is not limited, to clinical interviews of the parties, home studies, and other data gathering. Psychologists may review potentially relevant reports from schools, healthcare or child care providers. They may also interview extended family and friends. Sometimes, however, they rely on psychometric testing.
Let's explore these tests. Incidentally, none of the tests that are being used were developed for use in custody cases. Almost every forensic psychologist uses the MMPI (Minnesota Multiphasic Personality Inventory) in their evaluations for custody purposes. This psychological test is a so-called "objective" test. Indeed, a little understanding of what this test is and what it measures is very important. The test results of a client are compared against the so-called "base" group, and their average answers considered the "norm". Where the test taker's answers differ, they stray from this so-called "norm". But who are the members of the base group?
The original MMPI, still used by many psychologists, was developed in the late 1930's by using, as a base group, a group of farmers in rural Minnesota, who came to visit their mentally ill relatives on Sunday. How many African Americans were in that base sample? How many Native Americans, Asians, or Hispanics? How many professional women were in that base group? Obviously, the answer is none. Would the "norm" differ if the base group differs? Sure it would.
The questions asked on the MMPI are also significant. For example, one of the question is "Do you think you are being followed?" A litigant in a divorce case will often say, yes. But that is the wrong answer. This base group in the 30's in Minnesota, were not being followed.
"How is your sex life?" "Terrible, I have been separated for two years." Wrong answer. The fact is, none of the participants in this base group were going through divorces.
While it is true that the MMPI has been updated to broaden the base sample (MMPI II), the questions remain the same, and the percentage of divorcing people has not been updated to reflect the number of those divorcing in the USA today. The fact is, women and men, in divorcing situations, are still indicating that they feel they are being followed and that their sex life is terrible. These tests do nothing to add to which parent should be the primary caretaker but they are used on a frequent basis by these evaluators. When asked, a psychologist will tell you that it is expected that they will give this test. By whom? They add nothing to the case except a little bit of mystique.
Another test that is often given is the Rorschach test. This subjective test changes based on the emotions of the test-taker at the time the test is given. The results are often different depending on who is giving the test and how they interpret the responses to the ink blots. This test, if given to someone who has come home and found his children taken from the home and all of his furniture removed, will be significantly different when given to the same father, eight months later, when he now has equal physical time with his children and has met another woman with whom he is living. Same father; different results.
The bottom line is, that there are no adequate tests that have been developed for use in custody cases and, yet, litigants are required to participate in the above tests. Judges, rather than analyze the necessity for these tests, will allow psychologists to sit in the witness chair, stroke their beards, and testify as to why a mother or father should lose their children based on the result of these tests. According to their own guidelines, this is inappropriate.
A review of the Daubert [2] and Usher v. Lakewood[3], cases puts the issue of whether these tests are acceptable in the courtroom, in your hands. Both Daubert and Usher stand for, among other things, the proposition that the science must have some relationship to the issue to be decided. If these tests were never developed for use in custody cases, and if the base sample is not of like disposition to the test takers, why are we utilizing these tests at all in custody cases? What is the relevance of these tests? This is not science; it's an art. And it is not relevant to your determination.
Another guideline indicates "The psychologist neither over-interprets nor inappropriately interprets clinical or assessment data." In other words, the psychologist should not be drawing conclusions from one test or one interview. A good psychologist ought to be able to integrate the clinical interview, the history taking and the interviews, to support their conclusion as to parenting capacity, the psychological needs of the child, and the resulting fit. In certain tests, the claim is made that one test alone can be dispositive of every custody issue. You may hear that the result of a test may rule out a parent as the caretaker. Don't listen to that stuff. That is clearly an over-interpretation of clinical or assessment data.
One of the more important guidelines is the one that says "The psychologist does not give any opinion regarding the psychological functioning of any individual who has not been personally evaluated." Yet, too often, psychologists come in to a courtroom having seen only one side of the case and give their opinion as to who is the better parent. This is inappropriate and, according to the ethics committee of the American Psychological Association, is malpractice on the part of the psychologist.
Recently, a mental health professional was called in by a father to testify on his behalf. This mental health professional interviewed only the father and, subsequently, testified in court indicating that the children, who did not wish to see their father, should be forced to visit with him. If the mother did not force the children to go, he stated, she should be jailed. He had not interviewed the children to see why they did not wish to visit with their father.
This trial judge, believing her expert, ordered the mother to produce the children by the end of the week or suffer incarceration. The mother indicated to the children that they were required to go. That night, the fourteen year old child hung himself. Because he had to go? Because he feared his mother would be put in jail if he didn't? Why did the judge listen to the mental health professional without requiring that the mental health professional talk to the children?
The guidelines say as follows: "Recommendations, if any, are based upon what is in the best psychological interest of the child." "Recommendations, if any." Why are we permitting psychologists to give recommendations at all? The appellate courts seem to be indicating that judges should give heavy weight to the recommendations of the psychologist. It is you, the trial judge, who sit in the courtroom and listen to the entire trial. You are in the trenches. The psychologists get a brief snapshot of what is going on in a family. They see the children for a brief period of time. They see the parents on their best behavior. It is you, the trial judge, who sees it all. Why, then, do we give the psychologists the privilege of making a recommendation to you that the appellate courts might say must be followed? The psychologists should be giving psychological information. It is you who watches the entire wall being built with the psychologist inserting only one brick.
The last guideline indicates "The psychologist maintains written records." The psychologists have now attempted to introduce legislation in the various states to prevent their records from turned over to the lawyers. How convenient for an expert to be able to give an opinion without giving the basis on which it is made. It is inappropriate for the psychologist to be able to hide behind their so-called ethical principles in preventing the lawyers from challenging the basis on which these recommendations are made.
It is not only psychologists who must be feared in custody cases. Psychiatrists, too, have their own bag of tricks. They base their diagnoses on the Diagnostic and Statistical Manual of Mental Disorders, currently in its fourth edition (DSM-IV). This manual was developed based on the consensus of the psychiatrists as to the factors that go into each diagnosis. The Manual was put together to give diagnostic categories so that the psychiatrist could have a diagnosis to provide to the insurance companies as they request their reimbursements. As the DSM-IV says in its cautionary statement, "The clinical and scientific considerations involved in categorizations of these conditions as mental disorders may not be wholly relevant to legal judgments, for example, that take into account such issues as individual responsibility, disability determination, and competency." They go on to indicate that the use of the diagnostic codes is fundamental to medical record keeping. When the evaluating psychiatrist proffers a custody evaluation, however, you can be assured that a DSM-IV diagnosis of each parent will appear in the report.
In order to make a diagnosis of any disorder, the doctor must find certain diagnostic criteria. For example, there may be two columns of behaviors and the DSM-IV indicates that, in order to make that diagnosis, a certain number of behaviors from each category must be found. Additionally, there must be what is known as a "differential diagnosis", a determination that other potential disorders are first reviewed and discarded before this particular diagnosis can be made. The disorders found in the DSM-IV are voted on by the members of the American Psychiatric Association and there has been controversy over some of the so-called disorders that are included in the DSM-IV. For example, homosexuality, which used to be considered a disorder amenable to therapy in earlier versions of the Manual, is no longer found in the more recent versions. The disorder of involutia melancholia, a disorder found in women in their 40's, has also disappeared from recent versions of the Manual. This has apparently occurred since more women in their 40's have become employed outside the home and since many women have now become the very psychiatrists that vote on what is and what is not a disorder "amenable to treatment". In other words, menopause is no longer considered a disorder amenable to therapy.
Even if all of these labels on behavior are found to be present in the litigant, what relevance do they have in a custody case? What is the scientific basis if their findings can be changed based on the consensus of those voting at any given time? What does the fact that a mother might have a diagnosis from the DSM-IV of panic attacks have to do with her ability to parent? Why does a parent with a "dependent personality disorder" lose custody of her children? If it does not impede parenting, what is the value of such a diagnosis? Referring back to the Usher case and Daubert, doesn't this so-called scientific information have to have relevance to the issue at hand?
The diagnostic criteria for the dependent personality, for example, requires that 5 or more of the list of eight criteria be found in order to make the diagnosis. One of these is "Needs others to assume responsibility for most areas of his or her life." Assuming the psychiatrist found this criteria to be present, where did he or she get the information that such a thing existed? In questioning one psychiatrist in a courtroom, I asked him where he got the information that my client did not have any friends. His answer? "Her husband told me." This is the kind of information that must be challenged in bringing the issue of the impact of mental health professionals to the fore. The testimony of a forensic professional should not be dispositive in a custody case. It should be just one brick in the wall.
The reliance on psychologists has become overwhelming in the field of custody. In a recent case in Pennsylvania, a mother expressed fear of the father and fear that he would do harm to their child, a two year old boy. The psychologist interviewed the father and reported that there was nothing for the mother to fear. Over her strenuous objections, it was agreed that father could have unsupervised visitation. On the very first weekend, the father took the child to the woods, shot him in the head and then committed suicide. Obviously, that particular psychologist's crystal ball turned into crushed glass.
The bottom line is that the buck rests with you. While treating psychologists may have input into how a child may be doing or how a parent is functioning, the evaluation process should not serve as the dispositive focus of any custody trial. A psychologist might interview parents and children. This can easily be done in the courtroom by the lawyers. Any competent psychologist will tell you that parents will put their best foot forward in a custody evaluation. That does not give a true picture of what the family dynamics are all about. Custodial placements are difficult decisions for any judge to make.
What is a better answer? Should custody determinations be in the courtroom at all? This is a question for another day. But the fact that we do not now have an answer does not justify giving psychologists the power that we have given them. They have no special expertise in predicting the future. They cannot tell you that a child will be a better person by being with their mother ten days out of two weeks or nine days out of two weeks. They cannot tell you that a child is better off being placed with only one parent rather than th