THE LIZ LIBRARY: Bad Custody Evaluations

© 2011 Joel V. Klass, M.D.      The URL for this webpage is
http://www.thelizlibrary.org/bad-custody-evaluation/bad-custody-evaluation.html

Child Custody Evaluations
Ten Signs of Questionable Practices
by Joel V. Klass, M.D. and Joanna L. Peros, Psy.D., R.N.

The purpose of listing the following 10 questionable characteristics found in custody evaluations is to help eliminate commonly found inadequacies and biases influencing custody determinations. The listed unfair practices and subjective distortions of objective custody criteria are culled from recent literature and from reviewing 30 years of doing custody evaluations. The list of 10 basically unacceptable assessment practices also comes from hearing the most commonly voiced complaints by attorneys, judges, parents, and custody experts about custody evaluations.

1. Judgmental attitude by suggesting punitive and unreasonable consequences for a parent not abiding by the evaluator's arbitrary edicts.

"If either parent makes any negative comment about the other parent, the psychologist, or the guardian, then that parent will lose custody."

This outlandish threat punishes the children for a human foible. This is particularly true when young children are removed from a primary caretaker should that parent voice an understandable and even justified anger at the other parent. Most parents in a contested custody dispute will occasionally make a negative comment about the other parent. Although obviously not best for the children to hear, almost all children know when their parents are not getting along. To compel a parent by threat to talk only positively about the other parent is to promote hypocrisy. This fake attitude by a parent also breeds mistrust in a child who knows the truth. Children do best when they know their parents are human, fallible, but also trustworthy. It is reasonable and customary to remind parents to make their best effort to not voice hostility towards the other parent in front of the children but to drastically threaten a parent for any transgression is unacceptable. The occasional slip by a parent in the affirmative obligation to promote the relationship between the child and the other parent is far different than a campaign of disparagement and designed interference with that relationship.

Most heinous is the direct or implied threat by an evaluator that the parent had better comply with every demand of the evaluator because the evaluator will determine who is going to "win" in the custody dispute. Parents have the right to use their own judgment to protect themselves and their children from unreasonable demands. Parents should know that the judge and not an evaluator makes the final determination on custody issues. Both parents and judges have to keep in mind that evaluators are also human and can have their own personality quirks and biases, even when court-appointed, and that not all evaluators are wise or even reasonable. It should be assumed that evaluators, even with the best intentions, might still have a level of bias by fact of being human.

2. Minimizing a favored parent's misbehavior and embellishing or exaggerating an unfavored parent's misdeeds.

"The mother had only one DUI but the father is known to drink a can of beer at every dinner."

Even supposedly neutral court-appointed evaluators can develop a quick dislike for one parent and clear preference for the other parent. The reasons for this favoritism are many. Usually when there is an immediate attitude of preference by an evaluator for one parent over the other it stems from psychological sources in the evaluator's past history. Evaluators are generally unaware of their own bias, as well as the source for their bias. These biases are also more difficult to detect when an evaluator can always find some seemingly justified basis for their preferences.

Along with the favoritism bias is the bias caused by ignoring the effect on a parent of doing a relatively short-term assessment on such a crucial issue as primary custody determination and parent sharing time. To equate "how nice" a parent is for the few "under the gun" hours that a parent is seen with that parent's real parenting capacity is to be naive. Of course most parents are going to be putting their best foot forward during the time of assessment and are unlikely to show their true colors.

In contrast to this positive biasing influence, some parents may show uncharacteristic resentment at having their parenting qualities subject to scrutiny. For an evaluator to negatively judge a parent's overall parenting ability because of the brief resentful attitude a parent shows towards the evaluation process is to malign that parent. The false negative evaluation of that parent is in this case a sign that the evaluator has taken the parent's resentful attitude personally and allowing this judgmental response to color what should be an objective appraisal.

One way to minimize bias by both evaluators and judges is in every case to run the whole case with the gender of the parents reversed. It is surprising how different a case can sound once the gender of the parents is reversed. This simple process picks up gender bias and corrects for cultural distortions as well.

3. Using a "full battery" testing approach when the court needs a singular question addressed.

"I used a complete battery of testing because although each one has known limitations on validity together they can support a conclusion much more accurately."

The psychologist evaluator may even believe this canard of needing total psychological testing in every case. Nonetheless, this excessive reliance on a full battery of testing is to inflict a financial battery on parents. Such extensive psychological testing of the parents results in excessive fees for the psychologist and burdensome expense for parents who usually are already stressed by accumulating attorney fees.

There is no proven advantage to doing Rorschach tests, IQ tests for normally functioning adults, Draw a Person tests, House-Tree-Person testing, Kinetic Family Drawing tests, unstandardized computerized tests or many other tests with unproven results. Most psychological tests are not normed on parents undergoing the stress of custody evaluations.

To give an IQ test to an adolescent who is making mostly A grades in honors courses is totally unnecessary, and expensive. The retort some psychologists give to justify this is that IQ tests can also be judged subjectively. This explanation is silly because there are far more specific subjective tests available. In addition, even most of these subjective tests have insufficient validity to be used as the sole determinant of a child's welfare. For an evaluator to suggest that only by doing extensive psychological testing can an issue be determined is to distort the really more important resources available to assess crucial areas.

Far more important than all the psychological test results are the real life conditions under which a child thrives or fails. An experienced unbiased teacher's observations and opinion is a reality report on how a child functions both academically and socially. Such a teacher has hundreds of comparisons over many years to assess how a child is doing. Whenever a respected and experienced teacher opines that a child is not doing well, better listen. For this reason the many hours a teacher spends with a child in school are a very important resource for determining what is in a child's best interest. Judges should know that psychological tests can carry a warning that they are not to be used without clinical correlation or for forensic purposes to determine legal issues.

Psychologists need to make these warnings known in every report where such tests are used. Without the court knowing the limitations and published precautions on using psychological tests in legal cases, too much reliance on these psychological tests can result in injustice for parents and children. When a patient in a hospital is talking to you while their EKG machine is showing a straight line you throw out the machine and not wheel out the patient. So it is with psychological testing. Reality trumps all the psychological tests known. Psychiatrists can also misuse computerized test results. Psychiatrists as well as psychologists have been known to simply repeat the narrative spun out by some of the computerized tests, making their report simply a repeat of the limited validity of isolated test data. In addition, although some psychiatrists have had excellent courses on psychological testing during their training as a psychiatric resident, it generally does not compare with the more extensive knowledge of the psychologist in the field of psychological testing.

Lastly, to save their time, psychology evaluators have been known to breach standard test administration protocol by having office staff administer the psychological tests. They justify this invalid approach by saying that they have trained their office staff to do the testing properly or by even defending this unacceptable practice by saying "that's how everyone does it." The charges for this nonstandard testing are often the same as if the psychologist had done the testing.

This is not to say that all tests are pointless. Several have good correlations with reliability and validity, but must always be cautiously interpreted with clinical correlation and reality facts prevailing. An over-reliance on limited validity psychological testing results can violate the basic civil right to have judgments based on one's behavior and not on propensities, thoughts or feelings.

4. Incomplete assessment by not addressing the "Goodness of Fit" doctrine.

Several carefully done studies have determined the importance of matching a child's temperament with that of a parent's temperament to promote the best interests of a child. Research has shown that temperament is inborn. It is also been confirmed that how good a fit there is between a parent's temperament and that of a child's temperament can make the difference between a comfortable accomplished child and one that is anxious and inhibited. It is not that a parent may have an unhealthy temperament. A child can have a normal range of temperament style as well as the parent having a normal type of temperament. It is that the two temperament styles, the parent and the child temperament mix, needs to be propitious.

When a child is healthy and excelling in all areas, even when their primary caretaker parent has problems, it is the "goodness of temperament fit" that often accounts for this success. For this reason the dictum of "if it ain't broke, don't fix it" is worth consideration. Conversely, even when all the testing results and assessment favor one parent but the child does poorly in the care of that parent, a change needs to be considered.

5. Crossing boundaries and extending services outside areas of training and expertise

Psychiatrist and psychologist evaluators too often ignore the expertise of social workers. Social workers traditionally have more experience in doing home studies, and charge less than psychiatrists and psychologists for doing so. Often, a court-appointed psychologist or guardian takes the liberty of doing home studies disregarding their lack of expertise in the field. Their reports neglect all the subtleties detected by a capable social worker who has an eye for important details. Guardians and psychologists rarely test whether fire alarm systems are in place and working properly, the amount of alcohol in the home, the safety devices for firearms, and the risks of power tools accessible to children. Social workers can note the age appropriate books available, the programs children watch, the hour that is thereby indicated in determining their bedtime, nutritional needs, attention to hygiene, and appropriate car seat for the age and weight of young children.

Similar to the attorney who is court-appointed to be a guardian ad litem but who charges the higher fees of an attorney ad litem, psychologist evaluators can improperly charge psychologist fees for doing home studies that should be done by a social worker, at much less cost. In addition, another evaluation person adds to more reliable results because group evaluation input is generally superior to a single input. Another example of questionable practices is when psychologists and non-physician guardians opine about medication, an area outside their training. Similarly, psychiatrists can comment about psychological test results, without their having sufficient training to do so.

Most importantly, evaluators can make the terrible mistake of not acknowledging the limitations on clinical judgment, and that actuarial data and reality should always be regarded with greater respect. Clinical opinion is the least trustworthy in determining validity and truth. Nothing compares to actual life reality. If a child is doing poorly with the parent that all the clinical judgments say is the better parent, consider a change. If the child is doing well with the parent showing inferior testing, throw out the test and stay with the arrangement where a child is healthy and thriving happily. Evaluators have been known to do extensive and far-reaching assessments when the court has asked for a simple question to be addressed. Because the resulting report of the evaluator is so lengthy, it is assumed to be more valid and worthy of the invariably high fees that it entails.

What even the court can lose sight about is that the parents are saddled with sometimes enormous fees for a question that could have been answered with far less global and extensive psychological assessment. If there is a question about which parent would be the better one to have major time in child care during school days and the child is found to be excelling in school under one of the parents major care, no extensive psychological test battery is needed. Reality prevails and speaks louder than all the psychological tests. What is too often rationalized as a basis for doing a "test battery" is really only greed. Addressing and charging for unasked issues is financially unfair to parents. Parents undergoing divorce and custody issues feel compelled to accept the extensive but unrequired investigation and testing battery because of a fear of being seen as uncooperative and losing custody.

6. Inequality of time spent, attitude, or focus on investigating one parent over the other parent.

Because of favoritism that can develop by an evaluator, different amounts of time and level of investigation can occur. An evaluator can always rationalize why they allowed one parent privileges disallowed to the other parent. An evaluator can become friendly with one of the parents, be sympathetic to that parent, and not confront that parent about questionable parental practices. Likewise, an evaluator can be abrasive with a disliked parent and then report that parent as being nasty because the parent shows a normal reaction to the affront. This inequality can extend to the types of tests used and the attitude presented in doing the psychological testing or investigation. An example of this is when a psychologist disliked the mother being assessed and insulted her several times just before she took computerized psychological tests. The test results came back indicating that the mother was hostile.

7. Referrals, without court mandate, to a close friend, partner, spouse, especially with pressure on the parents to do so.

Evaluators need to be cautious when making any recommendation at all when not asked to provide one by the court. Evaluators who compel parents under evaluation to see a specific person, usually a close friend, partner or spouse of the evaluator is obviously exploiting their power position. The parent understandably fears not complying with the evaluator's referral recommendation for fear they will lose favor of the evaluator who is making the important assessment. If a recommendation is indicated, and approved by the court, the proper method is to provide several names and suggest that there are others who the parent may find acceptable as well. This allows the parent to make a decision that may importantly affect their life and not feel they are being exploited.

8. Omitting the all important issue of love

It is shocking to see how many evaluator reports never even mention the subject of love. To be loved for oneself, or in spite of oneself, is one of life's greatest gifts. For a child to have the conviction that their primary child caring parent truly loves them is a blessing. Consequently, the issue of what arrangement in child parent custodial care can best provide a child with feeing loved is essential. This crucial factor needs to be carefully assessed in every custody case. This critical question includes that how the findings and recommendations regarding custody can best encourage both parents to provide the offspring with the greatest sense of being loved. It is not an easy puzzle with the myriad and often conflicting factors involved in custody disputes. However, to not address this most important subject is to neglect what parenting during dissolution proceedings should be most about, giving a child the feeling of being worthy of love in the midst of parental discord.

Sadly, along with the absence of the assessment of love is the use of psychological jargon. This "psychobabble" often obfuscates the glaring simple facts and truths available to make an appropriate custody determination. Reverting to using jargon can mask the evaluator's lack of real understanding and ability to explain complex findings in clear "kitchen english." Evaluators are obligated to make their findings known in such a lucid way that anyone can understand them. In addition, psychological expert evaluators must know enough about child developmental psychology to assist the judge in understanding how evaluation results will affect children undergoing the stress of their parent's divorce.

Children almost routinely feel they are somehow to blame for the parent's divorce. They do so to avoid the worst feeling, of being helpless. If they conclude that somehow they are responsible, it gives them hope that by just doing something differently or better, that they can have control of the frightening dilemma of their parent's divorce. Therefore, every evaluator needs to assess how custodial arrangements can best encourage disputing parents to be most loving to their child. Only in this way can evaluators serve in the best interest of the child.

9. All black and white, good versus bad; no areas of grey, room for human foibles, recognition of TMS type behavior

Any evaluator's report that sees one parent as all good and the other as all bad is suspect. It is just not that common to have such a clear dichotomy in human nature. Far more realistic is a portrait of all too human parents experiencing a tragic deterioration in their relationship, and showing the stress of a broken family.

In the current family law contested divorce arena, each parent may feel compelled to bring out the worst in the other parent. This damaging dilemma cannot only distort a parent's generally acceptable nature into a picture of evil but can also cause distress to children exposed to the discord. It has been said that in criminal law you see bad people at their best and in family law you see good people at their worst. For an evaluator to not see the basic healthy nature underlying each parent is to do injustice to both the parents and their off spring.

It is a more accurate and therapeutic attitude to describe a parent's assets as well as the weaknesses in their character. Such supposed character flaws may actually only be a brief lapse in self-control because of extreme duress or threat. The "Threatened Mother" Syndrome (TMS) type behavior may be an apt description of a parent acting abnormally because the circumstance is abnormally threatening. The TMS is merely a mother's excessive behavioral reaction, as is found in the animal kingdom, to a threat to the bond she has with young offspring. Theoretically, this reaction can occur with both genders but is seen almost exclusively in mothers. In summary, it is easier to believe in the accuracy of an evaluator's report when there is the feeling that the entirety of a parent's personality is captured and not just reciting indictments in areas of poorer parenting behaviors caused by abnormal custody dispute pressures.

10. Excessive fees for unnecessary testing, unproven assessment tools, phone calls, prolonged assessment maneuvers, home studies, unneeded guardians, frequent travel time charges, undocumented and vague time costs.

Money is the unspoken factor hiding in plain sight. How often is it seen that the charges in a dissolution case is proportional not to the complexity of the assessment factors but to the financial assets of the divorcing party? Similarly, an evaluator can somehow expand costly yet unnecessary services when assets are plentiful. It is not surprising how quickly assessments and even divorce cases can resolve or settle once the financial means are expended.

Evaluators may even mean well but somehow find areas that need extensive exploration when plenty of assets are available. Furthermore, some evaluators actually take an extortionist position to suggest to parents that to not cooperate with every promoted assessment need is to be obstructionist or defiant.

Minor areas in a person's existence can be seen as critical in the light of a need to expand a well-paying assessment process. For example, to spend hours interviewing parties known to be closely related and supportive of a parent is to only get the party line, predictable and superfluous. Similarly, to get hours of interviews with "hostile witnesses" is also a predictable outcome. This time waste in repeated hearsay is better spent acquiring meaningful and reliable data in how a child functions academically in school, and socially with peers. Pediatric records showing weight changes and histories of injury are more objective than hearsay upon hearsay reports by interested supporters or detractors of a parent.

In summary, it is suggested that an appraisal of how questionable an evaluator's report is can be graded by giving 10 points for each of the 10 suspect areas listed. It is hoped that assessments get at least a passing grade of 70% or more. We believe that a failure in custodial assessment quality also fails in providing for the best interest of children.

    Joel V. Klass. M.D.
    Diplomate American Board of Psychiatry and Neurology
    Diplomate American Academy of Psychoanalysis

    Joanna L. Peros, PsyD., RN
    Psychologist Lic. #PY 7628

About the authors: Joel V. Klass, M.D. is a Florida Board-certified psychiatrist and psychoanalyst who completed his Adult Psychiatry Residency and Child Fellowship training at New York University Medical Center and Bellevue Hospital. He has been a Professor of Psychiatry at the University of Miami School of Medicine, President of the Broward County Psychiatric Society, Chairman of the Department of Psychiatry at Hollywood Medical Center, and Hollywood Memorial Regional Hospital. Dr. Klass has been a court-appointed Psychiatrist for the Dade, Broward, and Palm Beach County courts, and contributor to numerous continuing legal education programs for The Florida Bar. Dr. Klass has evaluated over 15,000 patients in his 30-year practice of adult and child psychiatry. Joanna L. Peros, Psy.D., R.N. is a Florida licensed psychologist.


Case Example: a very bad custody evaluation facilitated a domino-like effect of bad results until finally overturned on appeal and won on remand: A lawsuit was filed in Broward 
County, Florida, April 17, 2013, against Martha C. Jacobson, Laura Hohnecker, Juliette Lippman, and other defendants for, variously, 
negligence, intentional torts, defamation, malpractice, conspiracy, interference with child custody, and abuse of process

04/06/12, Palm Beach County Juvenile Court: "...This is nothing less than a travesty. And it has been compounded in my opinion by the Court system itself and I am saddened by it... But the only expert that I found to be credible... I found Dr. Klass to be particularly credible... The testimony of the witnesses called by the father -- Dr. Hohnecker, Dr. Jacobson, Ms. Lippman -- as far as this Court is concerned, I found them to be biased, I found them to have a lack of objectivity... insincere and disingenuous and fueled by money...

"I did not get the same belief from Dr. Klass... his opinions in my view were spot on... his statements reverberated with this Court... The way this case should have been handled... at the time the father filed the petition was either to deny it or to do something that would have been productive... instead, this child at best and its licensed psychologist who is supposedly the head of this so-called team... says well, she's improving because now she blinks at dad and will occasionally laugh... If that's what we're reduced to, I don't want to be a part of this... to remove a seven year old child from the primary bonded custodial parent...

"I find... that the evidence presented does not meet one or more of the criteria stated in Section 39.402(1), and I am ordering in accordance with the dictates of the 4th District Court of Appeal ...return the child to the mother's custody..." More on this case.


More Articles

Therapeutic Jurisprudence Index
Child Custody Evaluations -- Reevaluating the Evaluators
Right of First Refusal in Parenting Plans
Florida Handbook on Discovery
Custody Evaluator Testing: Discovery Issues
Are Psychologists Hiding Evidence?
Poliacoff on Releasing Records in Child Custody Evaluations
Child Custody Evaluators "In Their Own Words"
Parenting Coordination, a bad idea
Parenting Coordinator Practical Considerations
Those Joint Custody Studies
What's Wrong With Multidisciplinary Collaborative Practice?
"Therapeutic Jurisprudence" Causes Lawyer Ethics Problems
Collaborative Law, Ethical and Practical Issues


The Child-Centered Divorce Family Court is Not a Family-Friendly Place Parenting Coordination Dealing with forensic psychologists and discovery of test data in court

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