FLORIDA FAMILY LAW APPEALS -- All Florida Courts:
Palm Beach Divorce Lawyer Lisa Marie Macci and
Broward County Family Lawyer Elizabeth J. Kates
LINK TO THIS PAGE: http://www.thelizlibrary.org/liz/child-custody-evaluations.html
Child Custody EvaluationsParenting Evaluation, Parenting Plans...
Reevaluating the Evaluators: Rethinking the Assumptions of Therapeutic Jurisprudence in the Family Courts
There is an evolving and worsening mess in the systems and procedures currently in place to determine child custody and perform child custody evaluations when parents disagree.
This article discusses the minimum disclosures every child custody evaluator (also known as "parenting evaluator" or "best interests" guardian ad litem or GAL) , or parenting coordinator (herein called a "mental health professional" or "MHP") [2a] should be required to make, responding satisfactorily and in full, before being appointed in any family law case to do a child custody evaluation -- in fact before doing anything beyond answering a list of limited, detailed, specific, and narrowly-crafted questions the answers to which are directly within the MHP's field of proved expertise. This format is being used to help illustrate a problem, and with another purpose in mind. That purpose is to call for a revolt altogether against the notion of "therapeutic jurisprudence" -- which has been proved to do little to benefit children, much to benefit the divorce industry, much to complicate and pervert our family laws, much to erode fundamental rights and liberties, and much to harm the families who become trapped in the system. There are many problems, of course. But they are symptoms. Step one is to get the agent of most of them out of our family courts. The Emperor has no clothes.
There have been many calls for reform [2b], but for the most part, while they are admirable and well-documented intentions, they miss the boat; while they identify various problems and propose fixes in the system, they fail to identify and address the core reason the system is sick. Thus the proposals seek to treat only symptoms while failing to apply a cure to eliminate the disease.
Contrary to the public perception, and the perception that those seeking lucrative appointments in the court system wish to convey, a degree in some field of mental health does not qualify the individual to perform work that consists of open-ended investigating, evaluating, recommending, or decision-making about other persons' families and children.  What originally commenced, and was thought to be a good idea as a judge's assigment of fairly narrow tasks designed to streamline fact-finding and protect individuals' therapy records  (e.g. asking a social worker to do a home study, e.g. asking a psychologist to opine on the possible effects on functioning of a party's known or suspected personality disorder or state of depression when mental health already is at issue) has burgeoned into a free-for-all in which a panoply of MHPs make work and involve themselves in the family court system at enormous cost and detriment to the parties with expensive litigation-exacerbating processes, trials-within-trials, experts and counter-experts, and inevitable referrals to additional MHPs (often cronies) for all manner of alternate dispute resolutions and sometimes endless (and often utterly unproven) therapies. 
(1) Do you have a law degree or previous extensive experience as a law enforcement officer doing investigations, and if not, what qualifies you to do this work?
The milieu in which the MHP will be working is the justice system, in which litigants have certain rights of due process  and in which decisions made in connection with one issue can materially affect a litigant's position as to seemingly unrelated issues in the same case, and in which milieu, inter alia, centuries of jurisprudence have honed certain concepts involving what constitutes reliable evidence, burdens of proof, and other legal aspects bearing on the ultimate resolution of a case.  Sociologists, psychologists, and even real scientists by reason of their formal training tend to have little understanding of or appreciation for these legal concepts. 
For example, MHPs frequently fail to appreciate how financial issues in a case, or even work and childcare schedules may affect motivation and litigant positions, and also fail to appreciate the impact their recommendations can have on other issues.  They not infrequently make recommendations that are practicably or legally unworkable, which fail to consider the lives and welfare of families as a whole, which burden rather than enhance family functioning, which exacerbate rather than alleviate parental conflict, and which are based on less-than-reliable or complete evidence or on their personal biases or agendas.  They often seem to not appreciate or understand that the parents are civil litigants who have not lost any of their legal rights (and indeed, they sometimes exhibit an astonishing lack of respect for parents in conflict with each other, and even the lawyers and judges in the cases.) [11a] They tend to be vested in protecting themselves, their paychecks, and their "behinds" as the first priority (contrary to the traditional definition of a "professional") [11b], and they often appear to lack even a rudimentary understanding of why they are present, posturing as having a broad authority and expertise they do not have, coupled with fuzzy ideas about what they are supposed to be doing and their "role". For example, some think the sum total of a custody case is something called "the psychological best interests of the child"  which aside from not being the custody decision-making standard in any state of the United States, is itself an undefined concept; others have opined that they are 'the child's voice"[13a] or the "eyes and ears" of the judge [13b]; and others behave as if rather than being just another witness in a case, they are tantamount to being the de facto judge (the court, by calling them in, presumably having admitted to incompetence beyond uttering administrative orders for their benefit at the parties' expense, and handling case minutiae.)  And yet, they and their organizations have been instrumental in moving law and public policy toward a revolutionary deform of our family court systems for decades.
But it's not just a forensic investigation or opinion. Save for the pretext of parens patriae  and the state's interest in children's welfare, the child custody evaluation appointment would be akin in another context to a court saying to an agent of the state:
"These two businessmen have a breach of contract case. There could be a negative impact on the local economy. Do an investigation and see if there are any other issues between the parties, or pertaining to either party. Check out how they run their businesses, and whether they could benefit from a reorganization, or a consultant, a receiver, or whether one or both of them are better suited to go into another line of work. See if you can figure out why they don't trust each other and cannot seem to get along. Feel free to collect the parties' medical records, financial records, maybe even therapy records; search their offices and homes; interview anyone who might have interesting information -- employees, family, friends, customers, landlord, contractors. Then give me a report on whether there are any other matters they haven't raised in this case pertaining to their business practices and future plans, any other problems with how they run their companies, and some recommendations... "
Aside from the open-ended free-for-all, central to the problem is that MHPs use evidentiary standards in their work that are far different from those in operation in the justice system. [16a] Clinicians often go with their gut feelings, [16b] whereas more academic-oriented Ph.D. types get bogged down in examining the xylem and phloem while ignoring the forest in their desire to apply to the case the latest psycho-pop ideas and the trendiest but often irrelevant (and sometimes misrepresented) new research, not infrequently cherry-picked to accord with where they want to go.  After gathering information by rote procedure, hit-or-miss, and at random, in a way that to a large extent is not specialized investigation pertinent to the case at hand or even goal-oriented (but which gives the impression of having conducted an "investigation"), when determining whether a fact is "proved" they do not use or appreciate standards such as "preponderance of the evidence" or even "clear and convincing evidence" and often operate from a presumption that civil proof of matters that might also be considered to be crimes must be "beyond a reasonable doubt" or to a certainty.  This is unfortunate because all too frequently, courts ask MHPs to investigate and opine on whether alleged events, such as abuse, occurred, including as threshold issues, without understanding that these individuals actually are unable to provide the court with a coherent answer to these questions,  and thus, their responses, even before the complications of chimings in by additional experts and "counter-experts" too often will be misleading rather than enlightening [20a], and unproductive as far as facilitating a usable legal finding enabling the litigation to move on. [20b]
Illustrating the nondirectional, goal-less sort of rote information collection designed to make it look like there is some kind of methodology ensuing (and wherever possible, quantitative methodology), with some kind of expertise behind it, are the MHP's "standard" form "intake questionnaires" usually given to custody litigants.  These are invariably absurd, burdensome, and highly intrusive fishing expeditions that in large part seek information unlikely to lead to the discovery of relevant matter in a particular case -- and which would rarely be permitted by a court in legal interrogatories. But although the net is cast wide, it not infrequently is cast in the wrong direction. One well-known evaluator asks litigating parents how many hours a week their own father worked, what "nonromantic partners" influenced their lives, and details about their past "important" sexual relationships, as well as requesting names, telephone numbers, and other contact information!  Another's parent questionnaire goes through a litany of requested medical details about the parents and children posturing in a way that seems to want to give naive individuals the impression that the "doctor" is akin to a physician, asking about such things as pregnancy vomiting, whether any of the subject children were premature and their birthweights, and the ages at which the various children were toilet trained.  The questionnaire of one "medically-oriented" evaluator who does this has about an inch of space for the parent to respond to a compound question about how often the parties disagreed with each other, what the nature of the disagreements were, how the parties resolved arguments in the marriage, and whether any arguments resulted in domestic violence (and no other questions about coercion and control, domestic violence, financial issues, or even the reason for the marital demise).  Many evaluators also send out form questionnaires to "collaterals" (third party witnesses) that are no better, and which include among the questions asked, the soliciting of lay opinions such as "Based on your knowledge and observations of this family, what placement/custody/visitation arrangement do you believe is in the best interest of the child(ren)? Please explain your opinion."
MHPs are neither investigators [25a], nor do they have crystal balls [25b] any more than anyone else does to use to predict the future, whether that be risk assessment, or parenting capacity, or how well a child will do in an unknown situation. Confirmatory bias, logic errors, and other thought errors are rampant. They not infrequently will exaggerate doubt when that is unwarranted, or opine with certainty on other matters without basis for doing so, depending on their biases. [25c] For example, an MHP may readily express "doubts" whether a convicted batterer will continue to abuse, but express confidence that a child "needs a relationship" with the abuser.  When MHPs do apply presumptions going to public policy or a safety default regarding risk, they are applying presumptions that non-MHPs, such as a judge, also are equally or better able to apply, because the presumptions bear on legal decision-making, and are not about science.  Far too often, however, coming from a "healing profession" that tends to attract more liberal and empathetic types,  when the matter is one that involves risk, MHPs err on the side of undue optimism and with a nonjudgmental compassion for all, e.g. in domestic violence and other abuse situations -- and too frequently they do so erroneously.
In addition (and I believe this problem originates at least in part from a desire to preserve the aura or glamour of "expertise"), MHPs too often hunt for the unusual tangents, seeking evidence that demonstrates hidden facts (which, ostensibly, only the MHP could have discovered or recognized as valuable information). These are used to argue for counterintuitive recommendations (justifying the MHP's participation in the case).  Some of the supposedly unseen parental defects (or strengths) are claimed to have been gleaned from psychometric tests which have not been normed on custody litigant populations, or which are misinterpreted  , or which do not yield information in any event that has been shown directly or indirectly to affect parenting (and which, therefore, offer little, if anything, scientifically accurate or relevant in this context), or which are tests that the MHP is simply not "expert" in administering or interpreting.  Because overt litigant history is obvious to everyone (and requires no expert to observe), MHPs frequently argue for discounting past circumstances and behaviors of the parties as predictive of the future (the very evidence that the justice system otherwise would likely find to be the most reliable).  Not a few MHPs occasionally (and a few regularly are known to) display egregious lapses of judgment by favoring litigants they personally like . It also is not uncommon for MHPs to lean in favor of litigants whose lawyer got them the appointment or who routinely sends them referrals , or who are friendly and cooperative with them , or who are more financially flush and timely pay them , rather than basing their decisions on relevant evidence going to the issue of child custody. (Every lawyer who has worked for any length of tme in the family law system has seen this, and knows that it's not just expert "whores of the court" hired by one side who do this.) And many MHPs are just ideologically biased, outright. 
A divorce case is not experimental research. Nor is it therapy. Notwithstanding the careful checks and balances the justice system has in place for determining the relevance and reliability of evidence, MHPs by reason of their profession actually are untrained in assessing such evidence, e.g. determining whether hearsay evidence they receive is reliable.  The MHP forensic investigation is in no way comparable to, for example, a physician doing medical tests to "investigate" prior to opining on the cause of an injury or illness. Making matters worse, MHPs frequently will arbitrarily bias their own receipt of evidence by failing to interview individuals (such as family members) who would have the greatest personal knowledge of facts, considering these "collaterals" -- often without even meeting with them -- to be unreliable advocates for one side or the other, based, ironically, on nothing more than these individuals' own proximity to the facts or one of the parties.  Instead they espouse preference for the opinions of "professionals" such as the family physician (who might see a child a total of five minutes a year) or a public school teacher (who rarely has any first-hand idea of a child's actual home life.)  Because MHPs as such are untrained in analyzing legal evidence, under the pretext that they are doing "science"  and of a strained objectivity, they frequently fail to apply appropriate standards of probability, cumulative effect, or reasonableness (a legal concept they often do not understand) when weighing evidence, making judgments, or choosing what to "investigate" or what hypotheses to pursue.  They inject numerous iatrogenic effects into child custody cases, and this problem is well known -- but the repeated self-interested proposals for fixes, which invariably are more MHP involvement ideas (shorter evaluations, private consultations, coachings, recommending mediations, parenting coordinations, etc. etc. etc.], or industry-initiated "trainings", ignore the underlying problem , which is that MHP involvement in the court system is an inherently flawed concept that does not fit within due process notions of evidence and oversight, and that MHPs simply do not belong in the court system except, perhaps, on rare occasion in a strictly defined and narrow forensic role to respond to specific inquiries within their realm of actual expertise.
Unlike the field of law (and very unlike the hard sciences), nothing about the mental health professions either naturally selects for or deliberately trains for good analytical thinkers and logicians (a primary goal of traditional law schooling), or provides experience in decision-making.  While individuals vary academically, the mental health professions also draw from a demographic population that tends to be overrepresented with bright curious "feeling types"; those who end up as counselors and practitioners, rather than full-time university researchers, have talents skewed more heavily toward verbal and interpersonal ability than math skills. Overall, they are not of the natural analytical (math and logic) caliber of students heading into the hard sciences.  MHPs in practice instead are trained to be "non-judgmental" in both clinical and forensic practice (to the extent the nonjudgmentalism is posturing, it's de riguer posturing)  and little in the MHP academic specialties or therapeutic work experience in the usual course renders them good decision-makers.  By contrast, lawyers, judges, and even the less academically-oriented in the field of law enforcement have to issue-spot and make decisions, big and small, constantly and continuously in the course of their daily work. And while many lawyers become trained in continually taking different sides of issues and laying aside their personal biases in the representation of different kinds of clients, nothing in the MHP background in and of itself serves in this manner as a natural ongoing training in objectivity and neutrality. 
(2) What is your actual field of professional expertise, and what makes you expert in what's good for other people's children or how other people should live their lives?
Assessing and analyzing the evidence occurs concurrently with and after investigating. Contrary to the impression many of the lay public have about "psychological experts" (a result of several decades of trade promotion and public relations by organizations such as the APA and AFCC),  MHPs have no more skill than the average man on the street to detect deception.  Moreover, while they are not supposed to opine about witness credibility on the stand (this is a task within the province of the court's trier of fact), it's a virtual certainty that this kind of judgment nevertheless will be applied continuously throughout the course of any "forensic investigation."  At a later time it becomes virtually impossible accurately to tickle out from the MHP's end product, his underlying decision-making leading up to in-court testimony and recommendations, i.e. how he applied credibility judgments on an ongoing basis throughout the process. 
Matters are made worse in that most MHPs have substantial deficits in their training and experience going to relevant psychological issues presented by a given case, especially non-psychologist MHPs. And most psychologists have leaned toward specialization in their own past practices, which also discounts their "expertise" as a know-everything generalist and means that for the most part they are little better than laypersons -- a few courses in graduate school do not an expert make in substance abuse, domestic violence, parenting capacity (or even what constitutes "good parenting"), child sex abuse, family systems, psychometric testing, infant attachment, personality disorders, child development, breastfeeding, sibling relationships, child education, medical decision-making, communications, marital relations, and so forth.  In addition, child custody matters are not limited to these arguably psychological issues either. Decision-making in a child custody cases will turn on practical considerations such as a litigant's job training, time-scheduling, other family members' needs, and financial issues that impact family life, as well as the state's custody decision-making factors, including some, such as "moral character", that MHPs typically are unable and unwilling to factor in to their analysis. [55a]
Moreover, having extensive experience doing child custody evaluations or parenting coordinations is itself fairly meaningless. [55b] This kind of experience provides training in things such as following practice guidelines and procedures (such as those promulgated by the APA  or AFCC , which themselves have been published in order to promote the trade practice and create the appearance that the many problems with these ideas, such as are identified in this article, can be addressed with regulations -- and preferably "self-regulation").  It also serves to increase facility in writing reports , testifying in court , avoiding board complaints , and becoming familiar with what other evaluators like to do and think (such as gaining familiarity with customs in the practice or the prevailing views in trade literature about, e.g. attachment theory or relocation or domestic violence or parental alienation, whether right or wrong).  The prevailing "wisdom" tends to be clubbish, perpetuated by group think and informal schmoozing in psycho-legal organization conferences,  frequently without scientific basis and unsupported by a consensus of research findings , and defaulting to whatever positions are most likely to protect the MHP from liability [65a] or result in make-work for more MHPs. [65b] Experience in doing this work also enhances business contact networks and practice-building skill, as well as knowledge of general practice matters (such as fee setting and collections, and the sharing of intake forms and similar procedure and administrivia). [66a]
But doing lots of custody evaluations does not itself advance expertise in the underlying subject matter in which the MHP is supposed to be "expert". Neither does publishing lots of articles, whether those be the writeups of actual research, or soft essays in trade and legal journals.[66b]
Finally, the answers to the above question #2 as well as to the following questions are particularly important for lawyer and lay GALs, who also are being termed "MHPs" in this article. Even if they are trained investigators and legal system professionals, they not infrequently are far from "expert" about matters pertaining to children or marital or family life.  Lawyer GALs usually get their appointments via cronyism with judges and other lawyers ; often they are young and at the beginning of their careers (the judicial referrals are a way to build and sustain a new practice), and often, being fairly recently graduated from a lengthy and intensive course of academic study, perhaps supplemented with a few years of employment under sweatshop conditions as another lawyer's associate, they are themselves without much in the way of childcare or parenting experience. Finally, once in a while (but too frequently), lawyer and lay GALs move into this relatively nonintellectual work (compared with legal practice) because they have particular social or political agendas. These issues are discussed at length in Dick Ducote's excellent article, and also touched on in the related articles that can be found at the top of liznotes. 
The expertise is an illusion.  So are the benefits from these concepts.  The point of this article is not to denigrate any particular profession or individuals engaged in it, but rather, to point out the incurable defects in some really bad ideas. Currently, however, these ideas have become entrenched in practice in the family courts as "therapeutic jurisprudence" , so moving on to the next question...
(3) What is your own childhood family background?
There are many kinds of experience and expertise that will contribute to an individual's decision-making impacting family life and children's interests, and these are not limited to -- or necessarily even primarily found in -- the individual's academic and professional training. Virtually all of us have families of some sort, and it's fairly well-established in the literature that most of us get our basic ideas about what constitutes normal family life and what is "good" from our own experiences and based on our own values.  (Indeed the entire profession of psychology has a problem in this regard [74a] with "well-adjustedness" and its Merck DSM diagnostic scheme [74b], but that's the subject for another article.) The point is that MHPs are not immune to or exceptions from this background biasing. And although some small minority of practitioners may be particularly wise, it is not their MHP academic or practice experience which should be credited for that. It's their native intelligence, other life experiences, and childhood upbringing.  In fact, to the extent that MHPs have immersed themselves professionally for years with persons having all kinds of dysfunctions and problems, this experience, among other things, is as likely as not to have skewed their perceptions toward what's less than healthy as being "average" or "normal", and to have created other biases.  So, based on MHPs' own admissions about what kinds of information will be relevant to their assessment of a parent's decision-making , it is imperative that the litigant-consumer's attorney be able to assess the very same information that has influenced MHPs' ideas about parental decision-making.
No other participant in the courtroom is brazenly professing to be an "expert" in the area of deciding what's good for other people's children and other people in their family lives. The judges and attorneys participate as experts in matters such as legal procedures, weighing evidence, advocating for (or in the case of a judge, judging) a parent's position, both making continual decisions  based on the cases presented by the parents involved in the process and the application of law. And of course it is the litigants who themselves are the real experts on the facts, about the past, about themselves, about each other, about their family life and marriage, and about their own children.  Because the parents are in heated disagreement with each other (as are most litigants), it is assumed that the dispute and the high emotions will distort their objectivity or veracity (albeit not necessarily). [80a] The traditional justice system solution for this has been (as it is in all kinds of legal cases) open debate and advocacy. [80b] The relevant facts will be known to the parties or discovered through an orderly litigation process and properly brought by their lawyers as reliable evidence before the trier of fact; this will suffice to give the trier of fact a good picture and basis to see past the obfuscation of the circumstances and make a satisfactory decision based on the facts presented and in accordance with the law.
But now enter the MHP who professes to be the "expert" on what is in other persons' family interests. This individual is in possession of none of the kinds of experience or broad knowledge of the facts that either of the parents or even, as the case progresses, the parties' attorneys in the case will have, while also being permitted to pursue at whim if desired all manner of extraneous and often irrelevant tangents and theories not introduced into the case by the parties but which the MHP believes  might bear on a child's "best interests". Thus, under the pretext of "investigating," this individual will be deciding on his own what to investigate, and what issues should be raised in someone else's civil court case, and drawing conclusions riddled with his personal biases and based on hypotheses drawn from experiential generalities and speculation.  The case can -- and usually will -- be derailed, even to the point of moving completely out of control.  Nothing about this process is enhanced by adding in an intermediary MHP, an information filter  who commences utterly ignorant of the facts, to gather garden-variety and other nonscientific information  culled in a pretense of doing investigation, in order to throw another version of common information into the pot, while pretending that the distortion created by this process, the MHP's own weighing, judging, selecting, and summarizing of the often duplicative , unreliable, or irrelevant evidence is somehow adding "expertise." The reality is that there isn't all that much of a decision to be made, and limited options -- and when all is said and done, a custody schedule is as likely to be decided based on pragmatics such as the parents' work schedules, or distance from each other as anything else. 
The expert in court is permitted to opine because he supposedly has unique particular knowledge that will be helpful to the court ; in the case of the MHP, that knowledge ostensibly is grounded in scientific research. Frequently, however, in the child custody area, there is no relevant specialized knowledge, and no good research, and the MHP conducts an "investigation" that is tantamount to a lot of cumbersome  smoke and mirrors justifying the expert's involvement. Additionally, and to an extent that is just not found in most disciplines claiming to be grounded in science, the research literature in child custody and family sociology is fraught with misrepresentations, mistake, and activist propaganda.  Frequently there is simply no scientific consensus at all on the issues presented , and yet the posture of expertise requires that the MHP to effect an arrogant derogation of popular common wisdom.  One might ask: if "what everyone knows" or popular belief or what seems "obvious" or "common sense" must be discounted by "the scientists" , but there is in fact no scientific consensus on any alternative, then what are the real bases for the opinions of the MHP? To the extent the MHP has biases and preconceived ideas or agendas as might anyone else, those biases not only will tend to strongly influence the MHP's thinking and conclusions, but in this situation ferreting them out also is not only fair game but mandatory in a way it otherwise would not be for another kind of system participant. Again, no one else in the system is posturing as "a neutral expert" in resolving these kinds of issues, and bias in the case of others (such as a judge whose decision-making history also is far more public) has remedies built into the system (due process) to preserve fairness. 
For the foregoing reasons then, depending on the particular circumstances of a case, it would be appropriate to consider the answers to such questions as: whether the MHP as a child had issues involving the absence of or abuse by one of his parents, the relationship the MHP had and has with his own father and mother, and whether any negative issues are ongoing and still causing distress, and whether the MHP has particular longings or regrets over things he imagines he missed such as an absent parent or a lack of siblings, or alternatively whether he carries a picture of what's healthy and normal based on his own circumstances, whatever they may have been; whether the MHP grew up in an intact or widowed or divorced home; whether the MHP has siblings, and if so the nature of his past and current relationships with them; whether the MHP had his own mental health issues stemming from his family of origin, perhaps even things that instigated his pursuing a major in psychology in college; what was the MHP's grades and performance in elementary and secondary school (a copy of the MHP's high school transcript at a minimum is required to lend perspective to what the MHP might consider acceptable or unacceptable achievement), whether the MHP had medical or academic problems as a child, which could color his beliefs as to how these non-psychological issues should be handled; whether the MHP had doting or absent grandparents and extended family, and his feelings about that and whether he misses them or carries a particular picture in his mind of what these relatives mean; whether the MHP came from a religious home or a family with a certain cultural background and whether he carries that as a default of good or bad, or even whether he tends to "overcorrect" in his attempts to not let his own personal belief systems color his thinking, and whether or not he even is able to identify when he does this. 
Psychologist MHPs tend to be trained to recognize and be rather publicly self-conscious  about acknowledging their own biases, but unfortunately many times this only results in absurd overcorrecting to the point at which they are in fact unable to exert common sense to make decisions or judgments that comport with generally accepted ideas about what is normal or healthy, or even what's realistically workable for the everyday lives of the individuals in question (except, of course, if those ideas have been placed into the popular discourse by the trade associations themselves, or happen to serve the MHP's own agenda).  An example would be the many MHPs who think that half of their recommendations "ought" to be for father custody in order to demonstrate a lack of gender bias.  Another example would be the extreme "sex-positive" (that's a euphemism) liberalism of many MHPs that comports with neither parents' belief systems, a more extreme example being the sort exhibited by the late Richard Gardner, the inventor of "parental alienation syndrome"  vis a vis pedophiles .  Another would be the perception that most custody litigants in high conflict cases must be mentally ill or personality disordered in some way, a handy alibi to obscure additional unnecessary or ongoing conflict and issues that themselves were created by incompetent advisors, decision-makers, and therapeutic jurisprudence engineers.  Yet another would be the lack of respect and defensive biasing that too many male and career-oriented female MHPs exhibit toward mother-infant attachments and stay-home primary caregivers, and a biasing toward what is more unusual and politically trendy, for example, a stay-home father. [102a] To the extent his "expertise" is not in fact grounded in science, the MHP deflects serious criticism of and inquiry into that reality by posturing as if it does not matter anyway because somehow he is the "expert" of ordinary life too -- educated, visionary, sophisticated, and broad-minded -- justifying the substitution of his judgment over that of presumably provincial and flawed ordinary others, and the provision of his "services" for "therapeutic jurisprudence" to "families". [102b]
Some of this sort of unwillingness to acknowledge the average custody litigants' choices, history, and ideas of "normality" , and busy-body sort of inclination to rearrange or engineer their and their children's lives according to the MHPs' own value systems is simply indefensible; other of it may be a good thing in a clinician who needs to be either educational or nonjudgmental about a clinical patient. But none of it does much to recommend the MHP as an investigator/decision-maker with regard to other persons' real everyday lives, assessor of the past choices they have made, and recommender of how their future lives "should" be lived.  Of course, sometimes MHPs just have out-and-out agendas or biases that they recognize and acknowledge which they refuse to correct for under the posture that they know better, because they are the "expert".  And in this, the risk is high that what are merely their personal values and preferences will falsely parade as in some way grounded in science. [106a] (A common example would be the MHP who has taken a shine to an arbitrary particular custody scheme, such as the 5-5-2-2 idea [106b], or Wednesday night overnights, and tends to apply it formulaically as being in a child's best interests in case after case with different circumstances notwithstanding that there is absolutely no research basis supporting this preference.  More examples: the MHP who, because of his own family experiences and values, such as his own mother having worked, or who is still angry paying an ex-wife alimony, thinks that a mother who stays home with children is lazy and ought to be out working in the real world; the MHP who resents that she herself had to work after her baby was born and therefore so should the litigant who is before her; ; the childless MHP who thinks that because a mother has been employed full-time since the child was born she could not possibly have been the primary caregiver and thus it must be the father or the daycare institution ; the MHP whose father died serving in the military and fails to disclose his visceral reaction to the idea of any kind of childhood relocation, as well as anything else that in his mind takes Daddy away from a child; the MHP who herself was the only child of two older, highly verbal and doting parents, and who has no concept at all of sibling attachment or any realistic sense of the extent of one-on-one parent-child involvement in a family with four children and two harried time-stressed middleclass working parents.) 
(4) What is your own family, marital, sexual and relationship history as an adult?
And now the protests have reached a screaming pitch... But consider: if this role is as it's professed to be, a fact-finding function based upon the review of evidence, in furtherance of a subsequent recommendation- or decision-making end result, why is there a problem? Consider the kinds of intrusive questions asked of some potential jurors. Unlike MHPs, jurors aren't even present voluntarily, aren't getting paid the big bucks to serve, and are subject to at least some controls (however imperfect) over extremism, bias, mistake, and flat-out stupidity in that we require them to serve in panels of multiples and to achieve some kind of consensus.  The MHPs here are posturing, quite possibly without any basis to be doing so, as family and child-rearing experts, and to the extent they factor various subjects into their ultimate opinion, implicitly also are representing themselves (at least until confronted in cross-examination on the stand)  ipso facto to be experts in the multiple academic fields of scholarship that might be relevant to a given custody case (assuming there are experts at all). An appropriate decision might include factoring in everything from the assessment of a school system, to the relative value of different extracurricular activities, to the impact of domestic violence or child sexual abuse, to whether it's more important for a child to have weekly visitation with his father than to live with a mother who has to move with her new spouse and other children to another locale. The MHP is basing his claimed overarching generalist expertise about nearly everything he subjectively feels himself competent to consider , including a vague pretext to expertise via "clinical judgment" (guessing and gut feelings)  on the presumed existence of actual science or higher knowledge being applied in there somewhere, i.e. an expertise in the vast spectrum of sociology and psychology research, each study of which creeps in tiny increments toward what often is an inconclusive big picture. (See, e.g. the Myths and Facts pages at the liz library.)  There are inevitable gaps. No one is an expert at everything. No one can gain experience working in everything; there just isn't that kind of time ("jack of all trades, master of none"). And those gaps will be filled in with something other than expertise.
Any given psychologist or other MHP is no more any expert on any particular aspect of psychology or sociology than every general practitioner is expert in orthopedic surgery or neurobiology, or every securities lawyer is expert in constitutional law. However, child custody (someone else's family, someone else's life) arguably encompasses (if indeed "expertise" is required) a mind-boggling possible array of knowledge fields , each one of which is a separate area of study and specialization. And once the MHP is involved in a case, once the MHP is qualified, there is little that can be done to stop the MHP from considering and opining on all manner of subjects that have nothing to do with the MHP's actual expertise, save for the most obvious and gross of violations. 
In addition, there is inevitable bias as those with research expertise in particular aspects of the different fields, default to a lens of seeing concerns impacting their particular specialty as being of paramount importance in "the process".  Moreover, to the extent the MHP seeks to learn about other areas of specialization and discipline through papers and talks provided by cohorts who summarize the states of the research in their own pet fields at conferences and in books and articles (often speciously), the MHP, who is no better and arguably worse in some respects at ferreting out B.S. and groupthink truisms in his own circles than other persons , really has no good way of recognizing (if he even has the inclination or interest to do so) when and to what extent the "presenters" and article writers in other academic areas are biased toward their own importance, or toward advancing "the trade" if not toward advancing particular research agendas (their own professional exaltation or ideological agendas or the work promotion agendas and commercial interests of their organizations or the research grant-providers).  Moreover, unlike research in the fields of hard science, which at least is more vigorously documented, debated and advanced, there is far too much in the way of "think pieces" and agenda'd soft essays in the psych literature, posturing as "science."  And unlike the way forensic experts are used to respond to narrow inquiries made in court in other areas of the law, the typical child custody evaluation ("do an evaluation") is fabulously ill-defined and potentially unlimited in nature and scope.  What all this is leading up to is that, notwithstanding the posturing as "expert," in reality, the MHP is not close to "expert" as to the vast portion of what the MHP is busily doing, and moreover the MHP is applying the very same biases and agendas to his decision- or recommendation-making that any non-"expert" would be under such circumstances, but is acting under the dangerous and misleading guise of opining as a neutral expert who somehow really knows something others don't.
So far from these topics being off-limits, any MHP seeking appointment in a court case needs to fully inform the parties prior to their consent , of information about the following kinds of potentials for bias and agenda: whether the MHP has been married or divorced, and how many times, and under what kinds of circumstances, and how the MHP currently feels about those events; whether, if divorced, the MHP went through litigation over custody or property, and such details as whether the MHP had problems paying or receiving child support, as well as the custody arrangements of the MHP's own children and how these worked out and everyone's feelings about them; the MHP's own personal experience taking care of and spending time with children, within and without the scope of "parenting", and with regard to parenting, whether that was parenting as a primary caregiver, married or single parent, with or without household and third party help, or as a working parent or stay-home parent, and for how many children, and for how long, and the outcomes from all of that; i.e. how much time has this person actually spent caring for children on his or her own, and how well did this person's own family systems function, and is this person in fact an "expert" in creating a functioning family and raising happy, healthy, successful children with good outcomes, nay "best" outcomes, thoroughly well-adjusted and having reached the very pinnacles of their innate potential. Of high importance in evaluating the qualifications of the MHP would be ascertaining such background information as the current ages and family situations of the MHP's own children (if the MHP has children), and what their relationship currently is to the MHP and their other parent, and, if the children are substantially grown or adults, how they turned out -- perhaps even contacting them for verification. The MHP is, after all, posturing as an "expert." 
All this isn't to say that any particular family situation is necessarily a good or bad kind of thing, but we want to know, indeed are entitled to know this information, not only to assess qualifications, but also to consider the biases that will fill in the gaps in the scientific swiss cheese.  Some kinds of things, of course are of more assessment importance, such as whether the MHP divorced a spouse of many years and fought alimony, or seethes in anger over his or her own custody outcome, or hasn't seen her grown daughter in five years, or cheated on a spouse, or laid or had laid against him or her any allegations of child abuse.  For example, if an issue in the instant custody case is one parent's use of pornography, the MHP's own beliefs, use of (even addiction to), and feelings about pornography and sex should be openly provided and considered.  If the disagreement between the parents is about religion and whether certain practices are harming the child, or about presumptions (such as the benefit of biological fathers or religious schooling) that may be grounded in religious beliefs, then it should be mandatory for the MHP to detail his or her own religious beliefs, because these are strong and irrational biases, none of which are about anything scientific or "expert." Ditto exploring such issues as S&M, homosexuality, domestic violence, and so forth. 
In case the question is rearing again into your mind about well what about the judge or the lawyers and their backgrounds, I remind you again that none of these individuals is posturing as a know-it-all family expert seeking to circumvent the system of jurisprudence and fact-finding with its due process checks and balances that have been honed over centuries in order to voluntarily (and for a fat fee) inject himself or herself into someone else's family case, decide what issues should be addressed in that case, and tell them what's in their child's better interests and how to live their very lives based on his or her own peculiar values and investigations of facts that were not even necessarily introduced into evidence in the case by either of the parties, all the while pretending that there's "science" involved in all this rather than snake oil. 
(5) Disclose in detail all prior contacts of any kind which you have had with any of the parties, experts, judge(s), or lawyers in this case, or the associates, family members, friends, or disclosed therapists of any of them in either a professional or social capacity.
Again, this goes to bias. See the discussion above. It's sad that this question even has to be included, but there seems to be rampant ethical incompetence on the part of too many MHPs and family lawyers, and the incestuous referral feeding among MHPs, lawyers and judges only exacerbates it. 
(6) Why do you want to be appointed in this case, and...
In connection with exploring this question: the MHP should be required to disclose prior to appointment under what conditions he or she would stop working, withdraw from the case, not provide a report, refuse to attend a deposition, refuse to disclose all data (including testing data) upon request, or refuse to testify.  At a minimum, all material and information used and considered (or just received or offered and not used)  by the MHP in making his or her recommendations, should be immediately disclosable upon the completion of his or her report and preferably on an ongoing basis, without requiring the issuance of a subpoena or the obtaining of a court order, or the hiring of a receiving psychologist.  And everything should be disclosed simultaneously to both parties. This is the justice system here, and everything on which that MHP bases any opinion should be freely and readily disclosed in full without the usual game-playing, ass-covering, or expertise-mystery-making. Moreover all raw data, notes, and materials should be automatically turned over to the parties as a matter of course, preferably on an ongoing basis, but in any event at the time a report is completed and before it is admitted into evidence in any way, without even requiring a request, either directly to the parties or (at their choice) to the lawyer who works for them as their agent. 
(7) What do you perceive your role to be if you are?
We don't do decision-making based on secret evidence or permit investigative free-for-alls under the guise of expertise or any other pretext in the United States of America.  To the extent the judicial community likes to make referrals for custody evaluations, parenting coordinations, GALs, and other alternate dispute resolution practices in the hope of palming off work, taking themselves out of the decision-making hotseat, easing their work schedules, or clearing their dockets (as they similarly have done in pushing for a variety of helper general magistrates and hearing officers and special masters -- the subject of another article), that's simply an inappropriate delegation of work.  It's an inappropriate delegation to the very detriment of "the people" who employ them as government agents, and, moreover it's behavior that would not be put up with in more respected areas of law with more sophisticated litigants (such as business disputes). Ironically, in the overall, this delegation of work does not serve to accomplish the above judicial goals: it's counterproductive, and it has not been demonstrated to reduce litigation and judicial dockets a whit, and certainly not reduce costs or simplify matters. Rather, the evidence is contra.  Finally, the reality is that judges make these decisions without MHP assistance in all of the cases in which the parties have just as many difficult custody issues but simply cannot afford all of the "expertise". (There is no correlation between the parties' assets and the complexity of the case, such as might occur in cases warranting fancy forensic accounting and similar financial expertise.)
To the extent the legal community that represents financially flush litigants enjoys the additional work and fees that come from complicating and prolonging cases, as well as the mutual back-scratching business referral thing, that's simply unethical and perhaps it would be stopped if judges and litigants got wiser to it. To the extent that anyone with otherwise good intentions actually has bought into the voodoo of expertise, or it's crept up on them unwittingly as the "industry" has grown, or has become habituated to automatically appointing or seeking the appointment of MHPs without really thinking much about it, it's time to do a regroup and rethink. And to the extent anyone else has a sincere and laudable goal of actually reducing and simplifying litigation, or just doing what in the overall actually will benefit children and families, it's time to recognize that these ideas just don't work. The solution lies in enacting laws that are fair, sensible, simple to implement, and based in the realities of people's lives and good science (not special interests).  It's really not that hard.  Nor is the decision-making really that hard.
Hiring the MHP in a family law case is not like the hiring of a forensic expert to determine how many feet the car slid with the brakes on, or whether a particular medicine caused a patient's illness. It usually does not expedite cases, reduce costs, simplify litigation, help children, result in better judicial decision-making, or result in better child-rearing outcomes. The bottom line is that at best it's unnecessary -- there are just not that many possible custody choices to choose from in the usual case, and a good custody decision is not that difficult to make. Somehow that happens in the many, many cases that either are settled early on by the parents themselves, or are decided by a judge when neither litigant has a big financial pot for these helping professionals to party down on.
It's time we stopped pretending. 
Ad Litem" in the ordinary sense, to ascertain and represent the child's
"best interests", as distinguished from a child's "attorney
ad litem" whose job it is to represent the child's actual position
in court as an attorney. In some jurisdictions, such as Florida, a common
purpose of the GAL appointment actually is to waive the child's rights,
such as to the child's school, medical, and therapy records, the thinking
being that neither parent is trustworthy to do so. See
Attorney ad Litem for D.K. v. Parents of D.K., 780 So. 2d 301
(Fla. 4th DCA 2001). (For an excellent argument contra, and that
the child, inter alia, retains these privileges, see the amicus
brief in S.C. v. Guardian ad Litem,
asserting a child's right to protect medical and therapy records from an
appointed GAL). In other jurisdictions, such as Maryland and New York,
the GAL or "law guardian" functions much as a custody evaluator
would. The GAL typically also attempts to ascertain the child's interests
and makes a report to the court. Sometimes the work is duplicative. In
Florida, the GAL has been held to be an actual party to the case, entitled
to his or her own lawyer (_____), a case-complicating
third party, and an addition of two more legal fees burdening the parents.
2a. "MHP" mostly means "mental health professional" -- primarily psychologists -- but includes where applicable, lay, lawyer, and social worker evaluators, GALs, and parenting coordinators and anyone else who is working in a similar role within the rubric of "therapeutic jurisprudence". The parenting coordinator idea has its own additional and unique problems, which will be the subject of an informal supplementary article. See generally, Nancy S. Erickson, Confusion on the Role of Law Guardians: The Matrimonial Commission's Report and the Need for Change, 8 N.Y.Fam.L. Monthly 6 (2007).
2b. See, e.g., Lynn Hecht Schafran, Evaluating the Evaluators: Problems with 'Outside Neutrals', 42 Judges J. 10 (2003), and citations infra, at notes 3, 29, 30, 71, and 74, among many others.
highly-credentialed commentators have written excellent, well-documented
articles over the past decade detailing these problems. For the most part
they have been inexplicably ignored outside of academia, as if they were
merely interesting, isolated, alternate points of view, while a barrage
of unscholarly crap spews from practitioner journals and in conferences.
(Contra, recent Minnesota Court
of Appeals decision the state's new [anti-]relocation statute, citing
extensively to Prof. Carol Bruch's "Sound Research" article,
Leonard v. Leonard, 673 So. 2d 97 (Fla. 1st DCA 1996); Schouw v.Schouw,
593 So. 2d 1200 (Fla. 2d DCA 1992). Also see generally, Courtney
Wait, Comment, The Use of Mental Health Records in Child Custody Proceedings,
17 J.Am. Acad. Mat. L. 159 (2001). Moreover, the original goal of protecting
litigants' therapy records by appointing MHPs to do "evaluations"
was and is illusory at best, and at worst, a fraudulent argument that was
concocted to push legislation providing for the appointment of custody
evaluators. See, infra, note 42.
5. See generally, Dore, Court Appointed Parenting Evaluators and Guardians Ad Litem, supra, note 3. Also see the trade organization AFCC's (Association of Family and Conciliation Courts) account of its own history, which can be accessed at http://www.afccnet.org/about/history.asp It does not require leaps of logic to conclude -- especially in light of the history of the organization, the burgeoning in numbers of MHPs in applied psychology over the same decades, and, more recently, the advent of managed care -- that the interests of the organization and its members (and the paradigm from which they are working) rests primarily, if not exclusively, in promoting solutions via "therapeutic jurisprudence" that involve more and more MHPs in the family court justice system. This is discussed in more depth, infra, note 50.
6. A good lay summary of "due process" can be found at the " 'lectric law library" at http://www.lectlaw.com/def/d080.htm. A complete annotated U.S. Constitution can be found at http://www.law.cornell.edu/constitution/
7. See generally, Mirjan R. Damaska, Evidence Law Adrift, Yale U. Press (1997), discussing the foundations of evidence law and the current trends in the justice system.
8. See James R. P. Ogloff, Alan J. Tomkins & Donald N. Bersoff, Education and Training in Psychology and Law/Criminal Justice, 23 Crim. Just. & Behav. 1 (1996) for an overview of the history of forensic psychology training and current developments in the field and their training implications. Also see, e.g. the courses and training in the psychiatry and psychology programs of Yale University -- chosen because of the extraordinary status and reputation of the same university's law school -- which can be found at http://med.yale.edu/psych/ (for forensic psychiatry) and http://www.yale.edu/psychology/brochure/ (graduate and undergraduate psychology).
For example, the below commenting MHP -- who
has been a parenting coordinator ("case manager") on at least
one case known to the author in which a severely battered woman lost custody
of her daughter to the abusive father, and who regularly performs custody
evaluations as well -- appears oblivious to the impact of MHP fees (which
typically are divided equally between the parents) on a parent with substantially
lower income than the other:
10. [ANONYMOUS LISTSERVE COMMENT]: "Has anyone ever had a situation in which a non-attorney special master wrote orders with too much wiggle room in them (poorly structured, etc.), so the order just increased conflict? What recourse do the parties have then? (California doctorate-level MHP, April 2, 2002).
11a. See the examples in companion article, Custody Evaluator Quotes.
11b. Adhering to standards and ethics that place the welfare of those receiving services ahead of mere profit-making.
Cf, Glenn H. Miller, The psychological best
interest of the child is not the legal best interest. 30 J. Am.
Acad. Psychiatry L. 196 (2002) (Miller recognizes the different standards,
and addresses MHP manipulations that go beyond their expertise to political,
social, and moral issues, but fails to address the reality of court rubberstamping
of these MHP recommendations, which not infrequently represent neither
sound science nor appropriate legal standards -- or the nearly impossible
task litigants face in order to overturn bad court decisions based on such
13a. Daniel B. Pickar, On Being a Child Custody Evaluator: Professional and Personal Challenges, Risks, and Rewards, 45 Fam. Ct. Rev. 103, 112 (2007).
13b. See, e.g., In re Guardianship of Stamm, 91 P.3d 126 (Wash. Ct. App 2004), a case reversed because of improper admission of guardian ad litem testimony. The GAL had, inter alia, described herself as the "eyes and ears of the court." Margaret K. Dore, infra, note 3, who was the appellate attorney in that case, and is perhaps the nation's foremost legal authority on the pitfalls of the "friendly parent" concept, has written a number of articles on the MHP hearsay and related problems; some of her work can be accessed at her website at http://www.margaretdore.com/
[ANONYMOUS LISTSERVE REFRESHING MINORITY VIEW]: "The
lack of a link between the scientific data and CCE recommendations is why
I don't make them. I lay out the options and the way each relates to the
data I've collected (e.g., "Dad's firmness is likely to be experienced
by child as.... and likely to foster ... and impede ... in child's development),
and let the Judge make the choice. Attorneys and judges have given me positive
feedback about proceeding in this way. I think it's ethical, avoids hubris,
and respects the ultimate role of the court, as well as giving parents
feedback and options. (Doctorate-level MHP December 5, 2004).
15. Latin for "parent of his country." Historically, the sovereign (now the "state") was the guardian of minors and incompetents -- and some unhusbanded women. For more see, http://dictionary.law.com/ To some extent the state's free rein to act as the big pater now is constrained by the 14th Amendment to the U.S. Constitution.
16a. See, e.g.. Lisa A. Tompa v. Edward S. Tompa, [ ] (In assessing and making recommendations in a case involving child sex abuse allegations, a panel of custody evaluators applied, rather than preponderance of the evidence, the nonlegal standard of "reasonable degree of certainty." For some reason this problem was not addressed. The evaluators' unworkable recommendations including joint custody made a mess of the case, and ultimately led to legal and physical custody being taken from the mother, a nurse who was the children's historical primary caregiver, and given to their physician father. Also in this case, at least one of the members in the panel of evaluators appears to have included a court-ordered therapist -- a generally prohibited and at a minimum disfavored "dual role" conflict of interest, which the appellate court did not comment upon.)
[ANONYMOUS LISTSERVE COMMENT]: "I haven't seen any research
on this... However, in 20+ years of experience working with divorced families,
I have no doubt that fathers who were pretty hands-off during the marriage
become much more active and involved during the divorce and that, fortunately,
many of them sustain this involvement in the post-divorce period... cynical
dads who are concerned with punishing their ex, using the children as a
bargaining chip, or reducing their exposure to child support [are unlikely]
to convincingly and consistently sustain such playacting for any period
of time." (Michigan doctorate-level MHP, April 2, 2006).
17. For an example of the pseudo-scientific application of cherry-picked trendy research in accordance with bias, see infra, note 37. Because it really is not science, the MHP often can argue for the result that personally appeals to him, making citations to research (and sometimes not even research, but to think-pieces) that support desired outcome. Also see generally, Bruch, Sound Research, supra, note 3, and the discussion at notes 105 and 109, infra.
e.g., Cornelia Dean, When Questions of Science
Come to a Courtroom, Truth Has Many Faces, N.Y. Times (December
5, 2006). custody evaluators
child custody evaluations
[ANONYMOUS LISTSERVE COMMENT]: "I would never presume to
render an opinion about whether or not sexual abuse occurred. I always
present the factors in support and the factors that seem to suggest otherwise,
and let the judge make the decision. I do have a great deal of experience
in evaluating sex offenders, so would probably use my own expertise in
that area. I've worked with and evaluated sex offenders since 1977 &
am involved in ongoing research with sex offenders and the Rorschach."
(California doctorate-level MHP, July 11, 2004).
20a. Dean, supra note 18. Understand, it is no response to claim that some MHPs, or this or that MHP, or my friend the MHP who I like and know and have used in the past is smart, wise, ethical, kind, conscientious, unbiased, not subject to most of the various MHP failings, etc. etc. etc. It is not a response because there is absolutely no way to know in advance who is or is not going to be fortuitously "okay in this case" (or vis a vis a particular new set of circumstances). The same kind of argument could be made in favor of absolute monarchs in lieu of democracy, some magistrates presiding over Court of Star Chambers, and some divine right kings. We reject decision-making by dictatorship in the United States in favor of "rule by law, not by men".
20b. As criticism mounts, there is a concerted effort in the community
of MHPs to call for more "multidisciplinary efforts at communication,"
and to frame the rising problems as one of individuals' failings, not those
of inherently flawed processes, or as shortcomings inherent in the legal
system (or the laws themselves), not those of science, or as confusion
created by political interest groups, and not confusion created by an incompatible
mix of jurisprudence with opportunism as MHPs from another milieu altogether
seek to ply their trade (apply their research) in the justice system because
it is a lucrative source of income. MHPs are assumed to be primarily concerned
about the wellbeing of strangers' children. MHPs who claim to be "scientists"
are presumed to be neutral and objective, bound by scientific truths, scrupulously
honest, and never motivated by their own agendas and biases. It is assumed
that they would not be advocates unless somehow seduced by others (lawyers)
for whom such advocacy is a deliberate or ignorant modus operandi.
It is implied that the solution to the occasional anomaly lies in scientists'
own self-regulation, and/or in training judges to exercise better oversight
as "gatekeepers". The blame, of course, lies everywhere ELSE.
And the question is seldom asked whether and to what extent we even need
this "science" -- or any MHPs for that matter -- in our courts,
or should be diverting the resources of the judicial system toward the
tedious efforts at discerning which "scientist" or "research"
or type of MHP involvement is valuable. The question is seldom asked whether
there are any overarching benefits to litigants from anything therapeutic
jurisprudence has to offer, or whether better child custody decisions are
made because of it, or whether children end up happier and better adjusted
as a result of it. The answer to these unasked questions is quite probably
not. Very little research has ever taken a stab even at beginning to
answer these threshold questions, and so they conveniently are ignored.
The omission itself constitutes a form of advocacy and propaganda.
of these are available on-line, both presented free (as advertising the
MHP's business) and for sale. See, e.g. http://www.lundstrachan.com/forms/index.html.
The information sought by these intake forms is wildly disparate and idiosyncratic,
depending upon the MHP's specialty and personal biases. Some MHPs appear
to have adapted their clinical therapy intake forms to custody use and
seek information delving into the litigants' childhoods in a way that is
considerably out of proportion to questions asked about the current situation.
Some MHP's forms are designed to appear similar to medical practitioners'
forms and, in a matter-of-fact way, seek detailed and frequently irrelevant
information about federally protected medical matters. Many neglect to
ask adequate questions of the sort that would shed light on the parties'
relationship demise, elicit facts bearing on motives and the parties' positions,
or explore issues of violence.
non romantic partners or friends who have influenced your life. Please
give name of each, years known, their relationship to you, phone number
and how they influenced you. [ --- space --- ]
Important romantic partners with whom you did not live but who influenced
your life. Please give name of each, years known, their relationship to
you, phone number and how they influenced you." The same intake questionnaire
which asks for the telephone numbers of past paramours and former lovers
also inexplicably asks the presumably heavily-conflicted, divorcing or
divorced parents to "Describe the major strengths or significant assets
that you feel now exist in the marriage or significant relationship
that is the subject of this evaluation." [emphasis added].
23. A form
with, inter alia, similar detailed medical questions is marketed
by Richard Warshak, a well-known evaluator, proponent of parental alienation
theories, and author of Divorce Poison, from his websites at http://www.richardwarshak.com/
and http://www.wpqonline.com. "The Warshak Parenting Questionnaire
2nd Edition" or "WPQ" appears to have been originally designed
for child therapy intake, but the website now indicates it is being marketed
to custody evaluators, and apparently is going on-line as a time-saving
tool. "...for the past thirteen years, your colleagues throughout
the country have turned to the WPQ-2 to improve the quality of their evaluations
and document their work. It is a particularly valuable addition to social
studies, custody evaluations, consultations, and mediation because it provides
a cost-effective means of eliciting comprehensive data with no extra investment
of your time."
24. The author reviewed this MHP's intake form in connection with consulting on a case in which the mother had alleged both domestic violence and child sexual abuse by the father, both of which were substantiated by a number of professionals and agencies. The MHP's intake form eerily foreshadows the MHP's later findings that the mother was an "alienator" as well as a possible "flight risk" and that all of the allegations were unfounded, resulting in a recommendation, followed by the court, that a young girl be removed from her mother's home where she had lived happily and without problems her entire life, and placed into the custody of her father.
25a. [ANONYMOUS LISTSERVE COMMENT]:
"It is very difficult to catch someone who is buying pills illicitly,
whether on the computer, on the street or through cash transactions with
certain MDs and pharmacies. There comes a point at which we as CCEs have
to give up the notion that we are investigators. Take what you do have
and write your reports based on the information you developed, the parenting
behaviors you have forensically defensible support for and use your training
and experience to come to some opinions. That is the best that any expert
can do, certainty does not exist in our field." (New York doctorate-level
MHP, February 22, 2007).
25b. David L. Faigman et
al., Check Your Crystal Ball at the Courthouse Door, Please: Exploring
the Past, Understanding the Present, and Worrying About the Future of Scientific
Evidence, 15 Cardozo L. Rev. 1799 (1994).
25c. See David A. Martindale, Confirmatory bias and confirmatory distortion, in James R. Flens, et al., Psychological testing in child custody evaluations (2005), at 31.
26. Also anchoring, halo effects, negativity bias, availability heuristics, group think... See the examples in companion article, Custody Evaluator Quotes. See generally, Ragnar Rommetveit, Selectivity, Intuition and Halo Effects in Social Perception, 77 Am. J. Psych. 3 (1964).
a judge would be a far better practitioner of presumption-based decision-making.
In this author's experience, few MHPs appear to understand the concept
of "legal presumptions" much at all. But one wonders why they
think they need to, given that a legal presumption would have no bearing
on a matter of ostensible expert opinion grounded in empirical data, and
that the presumption would be applied only within the context of judicial
decision-making -- unless, of course, the motive were politicking for laws
to make more work for MHPs, such as occurred in connection with the Warshak-Braver
amicus brief in the LaMusga
case (advocating for "no presumption" in moveaway cases, which
conveniently creates a need for more evaluation work. In that case, evaluator
Phil Stahl claimed the mother was "unconsciously" alienating
the children, and the result of his multiple evaluations was years of delay
and thoroughly unproductive court-ordered "therapy".)
C. Harton, Gender, Empathy, and the Choice of the Psychology Major,
30 Teaching Psych. 1 (2003).
Dineen, Psychologists and Section 15 (Custody Evaluation) Reports: Illusions
of Expertise, Ethics and Objectivity, Report to Vancouver Family Law
Sections - Canadian Bar Association, May 6, 1998, available at Dr. Dineen's
30. See, e.g., Richard Rogers, Forensic Use and Abuse of Psychological Tests: Multiscale Inventories, 9 J. Psychiatric Prac. 4 (2003). Also see generally, Jonathan W. Gould, Conducting Scientifically Crafted Child Custody Evaluations, Part One: A Model for Interdisciplinary Collaboration in the Development of Psycholegal Questions Guiding Court Ordered Child Custody Evaluations, 37 Fam. & Conc. Cts. Rev. 64 (1999) and Jonathan W. Gould, Conducting Scientifically Crafted Child Custody Evaluations, Part Two: A Paradigm for the Forensic Evaluation of Child Custody Determination, 37 Fam. & Conc. Cts. Rev. 159 (1999), discussing, inter alia, the uses and misuses of psychometric testing in custody evaluations, and educating toward a goal of assuring that MHP opinions based on such testing and other investigations be grounded in scientific validity.31. Id. This author has read (and been impressed by the quality of) custody evaluator review written by Gould (supra, note 30) himself in practice. But the litigant's having to hire an expert to discredit another expert who already has entered the system and made a mess is one thing (albeit that thing is the unfortunate "trial within a trial" problem discussed by Dore, supra, note 3.) One still has to ask: what was that it in the first place necessitated an MHP to do a custody evaluation, replete with psychometric tests?
On the issue of "science" in general, many MHPs (the author believes Gould as well) hold personal biases in favor of joint custody (with or without rationales such as "as a default starting point" or "because it appears to be public policy" etc.). A personal preference for joint custody however, whatever it is based on, and however entitled each of us may be to hold our personal preferences nevertheless cannot be defended as having been chosen based on scientific findings that the arrangement results in better post-litigation outcomes for children and their families. No research has found that to be the case. At best, it's a mixed bag with arbitrary value-laden choices. At worst, it's... worse. Joint custody arrangements do not create more stable homelives for children. They have not been shown by any science to result in overall more well-adjusted children, or to yield happier, less-conflicted families, or to grant any other scientifically documented benefit. The custody arrangement may have some advantages beyond that its difficulty of implementation creates problems that in turn boost the use of MHP intervenors. These benefits largely flow to the erstwhile noncustodial parent's ulterior goals, such as reduced child and spousal support obligations, more authority and involvement in the continuing family system, or emotional gratification. These effects are obvious and do not require scientific analysis to discover. Also obvious is that joint custody has numerous drawbacks. See the research and articles at http://www.thelizlibrary.org/liz/)
So, given that there are just not all that many options to choose from in deciding upon a child custody arrangement, and given that those options overwhelmingly will be constrained or even dictated by fairly obvious facts about the parties' circumstances such as work and school schedules, or how far apart they live from each other, and similar considerations, one really has to query what all the painstaking attention to detail and "science" (or pretext to science) is all about if, when all is said and done, the decision will boil down to the application of a default personal preference, and pragmatic ways of arranging custody and visitation schedules to accomplish this while avoiding liability for placing children into situations in which detriment too obviously or easily can be proved to be the direct result of the arrangement.
Does such an outcome actually require so much concerted (and expensive) investigation and contemplation to come up with? No, it does not. Is it that difficult to ascertain who was a child's historical primary caregiver, who is the more competent parent, where the child would be happier spending the bulk of time, whether Dad should have the additional overnight a week he wants, whether Mom really needs to relocate for her job, or -- if the recommendation probably is going to be some version of "joint custody" anyway -- whether the parents' schedules and the child's life work better on the 5-5-3-3 plan or with a rotating every other week schedule? No, it is not.
The posture of science is only required in order to justify an outcome that does not seem to make readily apparent sense. Few (if any) of the considerations that actually will move the final decision-making have anything to do with "science." It may well have to be "all about science" to the extent a trial court is diverted away from relevant matters off on a tangent about whether an initial evaluator (who arguably should not have been involved in the case in the first place) properly analyzed a psychometric test and similar, but the custody evaluator's investigation and recommendations -- and the court's final decisions -- actually will have little to do with anything scientific. Even if the custody evaluation reviewers are arguably more scientific in certain ways in order to counter the initial evaluator's opinions, the "crafting of scientific custody evaluations" remains a posture ignoring that it was inappropriate in the first place to burden a litigant who disagrees with the recommended arrangement with a second opponent in court arging for what are, at the core, his own personal preferences. And as to this opponent, the litigant is faced with having to hire a reviewer with ostensibly more scientific expertise to litigate the tangential side case because the first MHP was presumed to have grounded his opinions in science, thereby shielding them from ready criticism inside an armor of unwarranted wisdom and credibility.
[ANONYMOUS LISTSERVE COMMENT]: " In the March/April National Psychologist, Jeffrey Barnett opines that delegating tasks to clerical/administrative staff such as test administration and/or scoring may be unethical. While I would not condone someone's secretary giving or scoring a Rorschach, I don't necessarily see a problem with something like the MMPI-2, assuming the professional has actually trained the nonprofessional. What do others think? What do others do?" (Missouri doctorate-level MHP, March 29, 2007).
[ANONYMOUS LISTSERVE RESPONSE]: " I know of no evidence that psychologists have better clerical accuracy than anybody else. My money would be in the other direction." (Doctorate-level MHP, March 29, 2007).
32. [ANONYMOUS LISTSERVE COMMENT]:
"The research on pre-separation and post-separation involvement is
complex. Pre-separation involvement may or may not be predictive
of post-separation involvement. It's mediated by quality of
the relationship, dynamics at the time of separation, how the parenting
tasks were divided during the marriage, whether Dad was never involved
or withdrew as the marriage ended, whether Dad is "activated"
more into the parental role by the events of the divorce vs. withdrawing,
and a host of other situational factors." (California doctorate-level
MHP, August 8, 2006, speculating).
author personally has consulted in numerous cases in which MHPs consciously
and deliberately favored the litigant they preferred for strictly personal
reasons. In some cases, MHPs, most often GALs, engaged in secret friendships,
including sexual relationships with one of the parties to a custody case;
in others, personal relationships were more tenuous (e.g. a relationship
with a litigant's family member or close personal friend, consultant, or
attorney). In one incredible case, an undisclosed MHP consulting for the
father's attorney simultaneously was observed spending the night at the
home of the presiding judge (and kissing her goodbye in the driveway the
next morning), and on another occasion, driving the automobile of the court-appointed
custody evaluator, who in turn also was a friend and former client of the
same judge on the case. In another case, an MHP acting as court-appointed
evaluator re-entered the case a year after performing an initial evaluation
to consult with the father and his lawyer.
34. Even in larger metropolitan areas, it is very difficult to avoid the reality that cross-referrals are rampant, that lawyers seek the appointment of MHPs they know and like and have worked with in the past, and that MHPs in turn make referrals to lawyers who send them work. Family lawyers are especially susceptible as a specialty to this kind of marketing because unlike business lawyers who might retain clients for many years, or personal injury lawyers who might obtain referrals from physicians or insurance agents, the sources of referrals in family law are more limited, and client relationships tend to be short-term, one-shot matters that occur at unpleasant times in the clients' lives. Because of the MHPs' injection of themselves into the family law milieu, and because a number of roles get filled by both kinds of professionals (eg. mediation, GALs), multi-professional organizations of family lawyers and MHPs are common, both locally and on a national scale, such as the AFCC (Association of Family and Conciliation Courts). While cross-networking in other kinds of businesses sometimes can be as beneficial and useful to the consumer as the service provider, in the family law context this has some unique drawbacks, and therefore is not akin to the cross-referrals that might take place between a financial advisor or accountant and an estate planning lawyer, or a real estate agent and a title company. The difference -- and the danger -- is obvious in the cross-referral system in the context of litigation that involves a relationship between a lawyer for one side of a dispute and a forensic evaluator who is purporting to be an unbiased neutral. Currently, however the kinds of existing or prior business or personal relationships with a party's attorney that would disqualify a judge from hearing a case are not necessarily considered sufficient to disqualify an MHP appointed in a case in a "quasi-judicial capacity" as an ostensible "neutral" evaluator. Part of the reason for this is the MHP posturing of being "scientific" and, being in the mental health field, in some way better able to recognize and overcome the kinds of biases and errors of thinking that plague ordinary common folk.
35. [ANONYMOUS LISTSERVE COMMENT]:
"We here in LA, in current practice, stand on the shoulders of a wonderful
group of evaluators who made sure that OUR requirements, as well as the
Court's expectations, are in the order. Because of that, the expectations
re the parties' cooperation, release of records, and counsel's responsibilities
as well as those of the evaluator are spelled out - not least of which
is that we don't produce reports or testify unless we have been paid."
(California doctorate-level MHP, June 24, 2006).
36. [ANONYMOUS LISTSERVE COMMENT]: "I also offered that despite not being paid I would, as a respect for the Court, provide my report and seek payment afterwards - the judge in no uncertain terms admonished the client who has failed to pay. Subsequently that parent, through counsel, has objected to my report, and to my charges... The judge will be hearing both sides shortly. I suspect that I will be paid by order of the court, and I suspect that the judge is allowing that parent full reign to exercise their right to object, but that in the end that parent only does him/herself further harm..." (Florida doctorate-level MHP, July 28, 2005).
these pleased and credulous, even excited, reactions to Sanford Braver's
relocation study, which conveniently was released just in time to be used
in the MHP amicus brief in the California Supreme Court LaMusga
case, and was repeatedly misrepresented as finding
harm to children when "parents" relocate, thereby providing an
apparently longed-for expedient citation to "research" useful
in making an argument against custodial mothers' relocations:
With the negative and doubting reception for a new study finding harm
to children from domestic violence perpetrated only against their mothers:
even whether it is admissible.
with psychologists, diagnosing physicians are trained in and do develop
experience in continual decision making, as do lawyers and judges. Even
so, a recent article discusses how flawed and fraught with error phsician's
decisions can be. See Jerome Groopman, What's the Trouble? How
doctors think, New Yorker (January 29, 2007), web-accessed January
27, 2007 http://www.newyorker.com/fact/content/articles/070129fa_fact_groopman
40. [ANONYMOUS LISTSERVE COMMENT]:
"Collateral witnesses are problematical. The evaluator never has time
to adequately assess the witness and decide based on evidence what weight
to give his or her statements. Alignments and distortions abound."
(California lawyer, January 11, 2003).
Psychological Experts, supra, note 38, p.183
("Collateral contacts. The use of collateral contacts in the custody
evaluation is important. Generally speaking, it is appropriate to obtain
information from objective collateral contacts. Such contacts include school
records, legal records, police records... Testimonials from relatives of
a parent generally are of little value. However, if a relative of a parent
is willing to provide negative information about that parent, it is generally
weighed in the evaluation process.")
[ANONYMOUS LISTSERVE COMMENT]: "For
this reason, I am very careful to not obtain private therapy records.
Instead I schedule a consultation with the therapist to review only what
is directly relevant to my evaluation." (Oklahoma doctorate-level
MHP, August 19, 2006).
process is a floundering expedition reminiscent of the children's story
about the six blind men and the elephant, only with a self-conscious awareness
of that blindness by the MHP who attempts to avoid this problem (or perhaps
obscure this fact) by using rote investigation practices gleaned from other
MHPs (none of which have been demonstrated by any research to result in
better child custody recommendations or child well-being outcomes) but
which facilitate a posture of setting about a task knowingly and competently.
Considerable confusion exists in the MHP community about when discretion
should or should not be exercised (the danger of bias versus the entitled
application of their assumed expertise and "clinical judgment").
See, for examples, the quotes in companion article, Custody
44. See, e.g. Robert B. Silver, Position Statement on Child Custody Evaluations, Assn. Fam. L. Professionals (2006), included in materials presented at the 15th Annual Conference for Mediators and Arbitrators, Orlando, Florida (August 24-26, 2006) and lobbied to participants, including lawyers and judges.
45. See generally, Ludy T. Benjamin, Jr., A History of Clinical Psychology as a Profession in America (and a Glimpse at its Future), 1 Ann. Rev. Clin. Psych. 1 (April 2005); Jean L. Pettifor, Ethics: virtue and politics in the science and practice of psychology, Canadian Psych. (Feb 1996); Robyn M. Dawes, House of Cards: Psychology and Psychotherapy Built on Myth, Free Press (1994); David Lee, An evaluation of prescribed learning outcomes in clinical psychology supervisor training, Leeds D. Clin. Psych. Prog. (2005). Also see (interesting read, a mixed bag, re the author's take on the state of the profession of psychology in general), Nicholas A. Cummings, The APA and Psychology Need Reform, presentation to part of the panel of Psychology Needs Reform, "APA Presidents Debate the 10 Amendments", APA Convention, New Orleans, August 12, 2006, available online at http://www.drthrockmorton.com/APAneworleans.pdf.
the undergraduate courses and academic record needed and other admissions
requirements to get into a graduate program in the hard sciences or medicine,
or even law with the requirements to enter a graduate psych program that
is comparably ranked.
47. Supra, note 28.
48. I am
not referring here to just the ability to think and choose, the cognitive
function that is studied under the auspices of the field of psychology
and, when dysfunctional, treated by assisting the patient to learn "decision-making
skills," but to the advanced development of a professional practice
necessity: the ability to render ongoing, continuous, rapid, and competent
decisions after swiftly taking in and recalling details, including decisions
that must be made on less than a comfortable amount of available information,
even when they may require relatively complex considerations, and made
on behalf of others, under high-stakes, high risk circumstances that may
immediately and sometimes unalterably affect those others' fortunes and
lives. MHPs (save for, perhaps the guy talking down the jumper from a building),
just don't usually work this way. And yet, as teaching "decision-making
skills" attests, it is a skill, and continually exercising
a skill is what strengthens that skill.
fact the reverse. Usually hailing from a clinical background that has immersed
the MHP in a skewed population of individuals with various and sundry personality,
mood, and thought "disorders", and other problems that have brought
them into therapy, the MHP is likely to develop an altered outlook as far
as what the ordinary individual perceives to be "normal" as well
as what behaviors accord with community standards and values.
50. See Dawes, House of Cards, supra, note 45. The website of the American Psychological Association is at http://www.apa.org/, and the Association of Family and Conciliation Courts is at http://www.afccnet.org/. Although managed care issues and the explosion of numbers of MHP graduates are not mentioned, one nevertheless does not have to squint to read between the lines of the AFCC's own published history, the below excerpt from the version web-accessed December 15, 2006, at http://www.afccnet.org/about/history.asp:
looks like the AFCC did much but initiate the explosion of therapeutic
jurisprudence that preceded... the "increasingly difficult family
only groups with superior lie detection skills seem to be some unusually
talented (and far from all) law enforcement officers such as police officers
and secret service agents who have been described as "super lie detectors".
See Samantha A. Mann, et al., Detecting true lies: Police
officers' ability to detect suspects' lies, 89 J. Appl. Psych. 137
(2004). Also see Aldert Vrij, et al., Rapid Judgments
in assessing verbal and nonverbal cues: Their potential for deception researchers
and lie detection, 18 Appl. Cognitive Psych. 283 (2004) (Those who
make rapid judgments also may be more able to detect lies than those who
deliberate). An earlier study found no difference in skill between ordinary
clinical psychiatrists and forensic psychiatrists in detecting lying. See
Paul Ekman & Maureen O'Sullivan, Who can catch a liar? 46
Am. Psych. 913 (1991).
generally, William G. Austin, Guidelines for Utilizing Collateral
Sources of Information in Child Custody Evaluations, 40 Fam. Ct. Rev.
2, 177 (2002) (In this how-to-manual for custody evaluators, the author,
a Colorado practitioner, describes his recommended techniques to assess
the credibility of collateral sources, containing such rules of thumb to
"clean up the data" as "...the credibility of collateral
sources is proportional to the degree of nonalignment... with the primary
parties." p.180. Therefore, we are to presume that grandma who sides
with the litigant who is her child isn't credible, whereas grandma who
sides with her inlaw (and who may be a vicious liar with ulterior motives
for doing so) is more credible; that the neighbor who lives across the
street, has seen all of the family members interact for years, and thus
has aligned with the spouse she believes to be the nicer (and more functional
and deserving) parent is not very credible, whereas the neutral physician,
who does the annual well-child checkup and has seen the child and perhaps
one of the parents at a time on a handful of other occasions for five minutes
a pop, is nonaligned and thus credible (albeit severely limited in what
he knows outside of the child's medical record); and finally, that the
ostensible friend of the mother (or neutral GAL or neutral third grade
teacher) who is having the undisclosed close friendship with the father,
is credible because she appears for all intents and purposes to
be opining in favor of a party she is not aligned with. The author repeatedly
has encountered the latter sort of collateral witness in a number of cases.
Custody evaluators missed these problems every single time, and plain old
detective work uncovered the relationship.)
MHP assessment of credibility problem is substantial. Not only is the MHP
posturing as investigator and quasi-judge, but the MHP also is deciding
what issues should be brought into the case, and what evidence should be
sought and used in connection with those issues. Assessing credibility
is the task of the trier of fact. State and federal laws strictly regulate
this function. Consider, from Florida's Evidence Code: "Character
evidence; when admissible.-- (1) CHARACTER EVIDENCE GENERALLY. -- Evidence
of a person's character or a trait of character is inadmissible to prove
action in conformity with it on a particular occasion..." Fla. Stat.
[ANONYMOUS LISTSERVE REQUEST]: "My apologies if this has been
recently covered, but I am looking for some cites on how a parent's depression
(long-term major) effects the children. I searched the archives and came
up empty - except for a post from ___ saying that there is research on
depression and parenting." (Louisiana masters-level MHP, June 13,
55a. [ANONYMOUS LISTSERVE COMMENT]:
"...nudity in a strict Southern Baptist home is different from in
a nudist colony member's home... infidelity is different in typical marriages
but a standard practice in marriage where swinging is practiced...and "German
Shepherds gone wild" becomes a different issue in a marriage where
that type of stuff was practiced... The issues associated with parenting
and stuff like that we can address... the morality issues associated with
that, however, are stuff we don't deal with..." (Florida doctorate-level
MHP, July 19, 2005).
55b. Leonard Bickman, Practice Makes Perfect and Other Myths about Mental Health Services, 54 Am. Psych. 11, 13, (December 1999). Also see Leonard Bickman The Death of Treatment as Usual: An Excellent First Step on a Long Road 9 Clin. Psych. Sci. & Prac.195 (2002), and Ebling, Who Are the Marital Experts?, infra, note 81. Also see Raven C. Lidman and Betsy R. Hollingsworth, The Guardian ad Litem in Child Custody Cases: The Contours of Our Judicial System Stretched Beyond Recognition, 6 Geo. Mason L. Rev. 255, 276(1998).
56. The current American Psychological Association (APA) Guidelines for Child Custody Evaluations are available online at http://www.apa.org/practice/childcustody.html The APA Guidelines are in the process of being revised as "Guidelines for Evaluating Parenting Responsibility, May 2007 draft is available at http://forms.apa.org/practice/gepr/GEPRforReview.pdf). [Comments are being solicited; see http://forms.apa.org/practice/gepr]
57. The Association of Family and Conciliation Courts (AFCC) Model Standards of Practice for Child Custody Evaluation are available online at http://www.afccnet.org/pdfs/Model%20Stds%20Child%20Custody%20Eval%20Sept%202006.pdf
The existence of widespread problems is acknowledged,
but the problems are framed as involving incompetent or unethical -- and
educable -- practitioners, not those arising because of a hopelessly incompetent
process that is not suited to the job for which it is used. See, e.g.,
Mary Johanna McCurley et al., Protecting
Children From Incompetent Forensic Evaluations and Expert Testimony,
19 Forensic Evaluations 277 (2005).
[ANONYMOUS LISTSERVE COMMENT]: "What I found I really hated
was the actual writing in the beginning of the report (rough draft). I
discovered that with another report in hand (for word accessibility only-
I'm over forty) I could dictate the bare bones part and then the fine tuning
was much easier since I didn't have to stare at a blank page. Worked for
me..." (California doctorate-level MHP, December 8, 2005).
60. [ANONYMOUS LISTSERVE QUERY]:
"I am the treating psychologist for a child and the parents and have
been subpoenaed to testify. Initially I thought I would be a percepient
witness not an expert. However in reviewing the the following (below),
it seems to me it says I can charge my expert fees if asked to give my
opinion. Am I understanding this correctly? The subpoena came without tender
of fee or mention of fee. Do I need to ask the atty..." (California
doctorate-level MHP, December 31, 2004).
[ANONYMOUS LISTSERVE COMMENT]: "In these case, individual
psychopathology appears to be minimized in order to avoid provoking a complaint
that is supported by various litigious political groups (e.g., the False
Memory Syndrome Foundation; Battered Women's advocates; perhaps others
I'm not thinking of now) . Some of my colleagues - mhps and lawyers - are
bemoaning the difficulty of getting strong expert opinions to the courts
when experts live in fear of frivolous complaints and misuse of the complaint
process supported by such groups... I have seen these factors at work in
two kinds of situations. One, where weaker recommendations are seen as
a necessary risk management strategy; the other where "complaint anxiety"
covertly biases data interpretation." (New Jersey doctorate-level
MHP, March 21, 2005).
62. [ANONYMOUS LISTSERVE REQUEST]:
"I would very much appreciate it if any of you would forward on to
me any strong references (including studies) about custody plans per age
and stage of development of the child." (Louisiana masters-level MHP,
June 15, 2001).
63. [ANONYMOUS LISTSERVE QUERY]:
"A client would like to read some material on appropriate custodial
time sharing options as affected by the child's age. Suggestions?"
(California doctorate-level MHP, February 15, 2007).
64. For example, the MHP community's general accession to political rhetoric such as a child's "need for two parents" or the custody factor the friendly parent doctrine, neither of which are grounded in any kind of science of the sort in which the MHP is supposed to be "expert" in opining in court on what is in the best interests of "this child." No "expertise" is required here, and any judge is equally -- and easily arguably more -- capable of applying law, public policy, political ideology, or even his own unscientific personal preferences to the facts and evidence of a case.
65a. [ANONYMOUS LISTSERVE INQUIRY]: "What I am asking is: what do you, the evaluator do, if your conclusion is that the evaluee is dangerous? This question is not a debate as to the validity of the findings. It's about what you guys do in the real world when you are very concerned about the safety of others. Has anyone felt they had a duty to warn?" (Alabama doctorate-level MHP, January 23, 2007.)
65b. [ANONYMOUS LISTSERVE COMMENT]: "I don't want anybody telling me what specific language to put in my reports. First, it was managed care flyspecking our every clerical move. Now it's our own professional groups?" (Michigan doctorate-level MHP, October 21, 2005).
66a. [ANONYMOUS LISTSERVE REQUEST]: "I received this from Mr. __ and wondered if anyone on the listserv was able to direct me to someone in Missisippi who might be able to look into his case. He is correct, I get many a day - but this was somehow more compelling..." (Massachusetts doctorate-level MHP, January 9, 2005). [An entire lengthy email, written to this PAS-proponent MHP, complete with identification of the litigant father and other family members, as well as the gory details of his case were posted to the listserve. The MHP was criticized on the list for the indiscretion, but noted that referrals went out to Doug Darnall, Richard Warshak, and other PAS-finding specialists. So much for "confidentiality".]
66b. For a typical example of what is meant by "soft" (and I do not mean to pick specifically on Pickar, but his article happens to be handy), see Pickar, On Being a Child Custody Evaluator, supra, note 13a, who writes:
And the articles say... what? The sentence contains many references but actually says nothing. Including irrelevant references is a way to lend the appearance that the opinions of the author that follow are based on them. This kind of thing is more common than not in the prolific psych practitioner publication world. Another:
That "serious issues" might arise in a child custody case is not news, and it goes without saying that if an MHP is posturing as an expert in the matter, then he really ought to be one. The sentence appears to have been included mostly to pad the "bibliography of resources" that commonly is appended to these kinds of psych literature articles. It's filler, neither opinion, nor analysis, nor discussion, and of the sort that would be criticized if placed in an undergraduate term paper. And another, this one, ironically, giving the horrible anti-scientific advice to just follow along with the group think that permeates the cross-pollinating literature, just accept secondary opinions in yet other literature doing the same kind of thing:
A "rapidly emerging research base" saying what? Is it coming to a consensus on anything? Within the lists of citations are similar crap, e.g. Richard Gardner, e.g. the Kelly & Lamb article, among others, as well as the very flawed Bauserman meta-analysis. These kinds of "peer-reviewed" papers are not research, not scholarship, and not credential for any posture of expertise. This is what is passing for "science."
67. Supra, note 1.
68. _____________. An entire internet blog has been devoted to the subjects of cronyism and churning in the court system. See "Overlawyered" at http://www.overlawyered.com/family_law/. Also see Carole Bell Ford, The Women of CourtWatch: Reforming a Corrupt Family Court System, U.Tex. Press (2005).
69. Ducote, Guardians ad Litem, supra, note 3, and http://www.thelizlibrary.org/liz
70. See generally, for discussions of this issue, Bruch, Sound Research, infra, note 3; William T. O'Donohue and A. R. Bradley, Conceptual and empirical issues in child custody evaluations. 6 Clin. Psych. Sci. & Prac. 310; Scott O. Lilienfeld, Pseudoscience in contemporary clinical psychology: What it is and what we can do about it. 51 Clin. Psych. 3 (1998). Also see Lynn Smith, "Putting a Spin on the Truth With Statistics and Studies" Los Angeles Times, June 6, 2001 ("Values, morality and religion fuel most debates about social issues, but people are more comfortable discussing numbers, researchers said. "Because of the supposed separation of church and state, we have a system that subscribes to an ideology of objectivity," said Judith Stacey, a USC sociology professor. "We're not supposed to argue from religion [or] from our personal values and impose it on others."). Also see S. O. Lilienfeld, et al., The scientific status of projective techniques, 1 Psych. Sci. Pub. Int. 27 (2000).
research exists which shows that custody recommendations made by MHPs result
in better child outcomes. See Shuman, What Should We Permit
Mental Health Professionals to Say About "The Best Interests of the
Child"?, infra, note 129.
reason for this has been decades of MHP lobbying and propagandizing to
the legislatures and legal community.
Zeng-yin Chen & Howard B. Kaplan, Intergenerational Transmission
of Constructive Parenting 63 J Marriage & Fam. 17 (2001) ("Numerous
research has documented the intergenerational continuity of parenting,
demonstrating that present-day parents tend to use similar parenting strategies
or practices that they themselves received in their childhood (see reviews
by Putallaz et al., 1998, and van Ijzendoorn, 1992). A noticeable trend
from this literature was its predominant attention to the intergenerational
continuity of abusive or harsh parenting. Belsky (1984) pointed out that
it was research inquiry into dysfunctional parenting, specifically, research
on child abuse, that shed light on the intergenerational transmission of
parenting for the general population." p.17). The article contains
an extensive bibliography of other research in accord.
74a. Jay Ziskin & David Faust, Coping With Psychiatric and Psychological Testimony, L. & Psych. Press, (1970, 1988, supplemented 1997 and 2000). "It is the aim of this book to demonstrate that despite the ever increasing utilization of psychiatric and psychological evidence in the legal process such evidence frequently does not meet reasonable criteria of admissibility and should not be admitted in a court of law, and if admitted, should be given little or no weight."
74b. Merck is a pharmaceutical company. Its diagnostic scheme was implemented for the dual purpose of inventing or defining nonmedical "diseases" that require treatment (drugs), and to qualify psychiatrists and later, psychologists, to receive medical insurance payments for treating non-medical issues.
75. See, e.g., Jane M. Ussher et al, Gender Issues in Clinical Psychology, Routledge (1992).
76. See generally, Hagen, Whores of the Court, supra, note 3, and Jay Ziskin et al., Coping With Psychiatric and Psychological Testimony, supra, note 74.
77. [ANONYMOUS LISTSERVE COMMENT]:
"I never have done home visits which confirmed what I already knew.
Usually I did them to check out some concerns/allegations and to collect
information that would not be available through other means (for example,
when there would be no testing done or light could not be shed on a particular
issue other than by checking out the home environment). I am not sure what
you mean by how I control for threats to validity in terms of conducting
a home visit versus having someone come to my office for interviews. I
follow standard procedures in either case which are explained in advance
to the parties and followed as consistently as possible with both parties."
(Doctorate-level MHP, July 27, 2005).
78. Supra, note 48.
79. The medical community appears to recognize this reality to an extent simply not seen among the MHP community. See e.g., the research by Glascoe and others: Frances P. Glascoe, Parents' concerns about children's development: prescreening technique or screening test? 99 Pediatrics 522 (1997) (" If systematically elicited, parents' concerns approach standards for screening tests and can be used to make reasonably accurate referral decisions."); Frances P. Glascoe & Paul H. Dworkin, The role of parents in the detection of developmental and behavioral problems, 95 Pediatrics 829 (1995); Frances P. Glascoe, It's not what it seems: the relationship between parents' concerns and children with global delays, 33 Clin. Pediatrics 292 (1994); Frances P.Glascoe, et al., The importance of parents' concerns about their child's behavior. 30 Clin. Pediatrics 8 (1991).
80a. [ANONYMOUS LISTSERVE COMMENT]: "Unless we can recognize whether it is conflict or abuse that has shaped the family prior to the divorce, the interventions that we make will not be effective. Hence, evaluators and courts need to set aside their assumptions that all cases before them are simply of warring parents - those that use their children to get at the other parent. Some cases may be this and more, that is, some cases may not just be one of conflict. Some may be cases of abuse..." (California doctorate-level MHP, March 19, 2005, citing to literature that struggles to distinguish between conflict-initiated violence and abusive violence.)
80b. [ANONYMOUS LISTSERVE
COMMENT]: "When two plausibly sincere parents describe radically different
families, we hear the Twilight Zone music playing in the background. They
each present their strengths and the other's deficits relative to their
vested sense of what the developmental and emotional needs of the children
are. Judges are stumped." (Tennessee doctorate-level MHP, November
81. [ANONYMOUS LISTSERVE COMMENT]:
"When a court refers a case to me they are essentially asking for
my OPINION. If I have an opinion that I think is derived from the application
of my readings, experiences and training about a particular case I will
express that OPINION. What the court chooses to listen to is, of course,
up to the court." (New York doctorate-level MHP, February 11, 2005).
82. [ANONYMOUS LISTSERVE COMMENT]: "CCEs seem to necessitate the following questions: (1) what are the parenting capacities of the competing parties? (2) what are the needs of the children? (3) what parenting arrangement amounts to the best fit between the available parenting capacities and the needs of the children?" (Michigan doctorate-level MHP, February 10, 2005). [ANONYMOUS LISTSERVE RESPONSE]: "It seems to me that capacity, needs, and fit leave a lot of room for making up our own subjective definitions or for expressing our idiosyncratic theoretical beliefs (all of which can have profound effects on peoples lives). To what in our specialized knowledge base do we refer for a consensually agreed-upon definition of these things and, if such does not exist, should our opinions be admissible about preferred custody plans?" (New York doctorate-level MHP, February 11, 2005).
83. Leslie Eaton, For Arbiters in Custody Battles, Wide Power and Little Scrutiny, N.Y.Times (May 23, 2004), available online at http://www.nytimes.com/.
84. See generally, Dore, Argument for Abolition, supra, note 3. Dore has described the intermediary GAL, parenting coordinator, and evaluator essentially as a "filter" standing between the evidence (and often the truth) and the trier of fact. The MHP gathers evidence, including indiscriminately, and including unreliable and irrelevant evidence, as well as evidence going to issues that were not even raised by the parties, filters it through the lens of the MHP's own biases, agendas, and mistakes, then feeds a processed mix of inextricably entwined fact, pseudo-fact, expert opinion, and personal opinion along with a dash of assumptions and values to the court, coupled with a recommendation to the court about what the court ought to think, find, determine, and order. And that unwholesome picture doesn't take into account refusal to disclose underlying data and the basis for opinions, distorted and illogical thinking, or outright occasional malfeasance. Finally, in order for the parties (those at least who are represented by competent counsel) to cross-examine and refute the many problems that may underly the MHP's own little mini-proceeding that is within the larger litigation (in which the MHP is investigator, interrogator, judge and jury rolled into one), itself requires what is in effect a subsidiary or ancillary "trial within a trial", often itself necessitating the involvement of additional counter-experts and reviewing experts, which hardly could be said to "simplify" anything for the court or the litigants. One has to ask: how has the judiciary become so incredibly snowed?
85. [ANONYMOUS LISTSERVE QUERY]:
"I am beginning a new project and I am interested in knowing what
factors each of you believes are important/relevant to assess in CCEs.
Part one of my new project is to look at parent and parenting factors.
So, I am interested in what specific factors you believe are important
to assess and how you assess each parent and/or parenting factor."
(North Carolina doctorate-level MHP, February 23, 2005).
86. [ANONYMOUS LISTSERVE COMMENT]:
"I want to state up front that I'm in the description-of-behavior
camp and avoiding-the-misuse-of-power-laden-labels, such as "syndrome,"
camp. Certainly, it can be made to look like we have discovered an identifiable-disease-pattern
that is misrepresented with imbued scientific power, in part due to biased
and limited samples. But where is the line drawn? It is also true that
'integration' of any relevant material is necessary when drawing conclusions
or formulating recommendations... For example: Your honor, father's personality
profile, comments from collaterals, and parent/child observations all point
to a rigid inflexible pattern of behavior, as compared to mother, that
the relevant literature refers to as authoritarian. True, we do not say
that father suffers from authoritarian syndrome, but that is the weight
of what we are saying..." (Pennsylvania doctorate-level MHP, January
87. [ANONYMOUS LISTSERVE COMMENT (with which there was virtually complete consensus by others who opined): "Is this a trick question? It seems very clear to me that if the kid enjoys band, and if attendance at band practice is a requirement of being in the band, then OBVIOUSLY any visitation should work around that, as opposed to the band practice working around the visitation." (California doctorate-level MHP, January 30, 2005).
88. While the Federal Rules of Evidence do not control state law child custody disputes, most states have enacted similar evidentiary rules, and the Federal Rules nevertheless are instructive as far as the theory of expert opining in the courtroom. See Fed. R. Evid. 702: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." From the notes of the advisory committee to the Federal Rules:
89. [ANONYMOUS LISTSERVE COMMENT]: "Wow. I just read ALL of the posts on parenting capacity instruments and the derivative posts into psychometrics and admissibility. Sheesh. All I wanted to know was what the questions were and what were the "right" answers. I do not want to have to buy all that stuff. And I do not know anyone who does custody evaluations. Except Gerry Koocher. Who maybe perhpas possibly might not want to lend me his tests. Now where was that Web site..." (Massachusetts doctorate-level MHP professor, April 6, 2002).
90. Johnston, Introducing Perspectives, supra, note 20, and see Bruch, supra, note 3.
91. [ANONYMOUS LISTSERVE COMMENT]:
"There will never be unanimity on this list about what direction the
sun comes up in the morning! But the STRONG majority of us favors the "scientifically
crafted" approach of Brother Jon's book and hold little regard for
the Bricklin instruments. They will not withstand a Daubert challenge and
thus have no probative value and thus are USELESS in a CCE." (California
doctorate-level MHP, January 13, 2005).
92. Like the notion that most of the time, babies and little children are happier and do better when they are cared for by their mothers. "This study investigated the impact of the abolition of the tender years doctrine on custody decisions in divorce cases. This doctrine supported the presumption that the mother is the more suitable parent for young children. In March of 1981, the Supreme Court of the State of Alabama found this doctrine to be unconstitutional. To assess the hypothesis that this ruling had a significant effect on custody related decisions, a sample of court records for divorce cases in an Alabama county was examined as representative of the state on a number of key variables. Overall, no significant differences were found on indicator variables for the comparisons before and after the ruling. There was neither an increase in custody grants to fathers nor an increase in custody requests by fathers." Laura E. Santilli & Michael C. Roberts, Custody decisions in Alabama before and after the abolition of the tender years doctrine, 14 L. & Human Behav. 2 (1990) [emphasis added].
these circumstances in which extrapolation and common sense might be okay,
even though research on point may not not exist:
[ANONYMOUS LISTSERVE COMMENT]: "IMO custody evaluators should determine relevance much as judges do -- by a blend of cost-benefit analysis and common sense." (Michigan doctorate-level MHP, January 19, 2007).
94. [ANONYMOUS LISTSERVE COMMENT]: "I would hope, in your hypothetical that both attorneys would actually be prepared to question the expert about all of the subjects you list. I believe that this is the role of the attorney and the way the system is supposed to work. It is not the expert's responsibility to compensate for poor lawyering. It is my understanding that it is not the role of the expert to tell the court the 15 questions the defense attorney should have asked." (Califiornia doctorate-level MHP, January 29, 2005).
95. For example, consider this passage from a biographical article in Columbia's Journal of the College of Physicians and Surgeons, on noted parent-infant attachment researcher who is frequently quoted in MHP literature on divorce and custody issues, particularly those pushing joint custody and father involvement, T. Berry Brazelton:
Peter Wortsman, Alumni Profile - T. Berry Brazelton: Babies' Best Friend, 16 P&S J. 2 (1996), available online at http://www.cumc.columbia.edu/news/journal/journal-o/archives/jour_v16n2_0024.html But it would appear that it was the mother of admitted "workaholic" Brazelton's own grown children, who, in his own words are "okay" -- and not Brazelton -- who was the hands-on parent in his family. This example is not to pick on the esteemed doctor particularly, but to illustrate a point. To those who would counter that background does not always bias professionals' perceptions, or interpretations, or work results, then what is it that MHPs believe they are evaluating vis a vis the unpaid "profession" of parenting? Is it not exactly that? How the children will end up based on their childhoods? Be this as it may, Brazelton's "smothering" mother appears on all measures of achievement to have raised at least one extraordinarily personally and professionally successful son.
Here's another example:
"I am also a divorced father and bring a personal perspective to my
professional life. I have shared custody of my children, and I've tried
to follow the guidelines I encourage in this book. I have seen what works,
and what doesn't. Like all parents, I have made mistakes and tried to learn
from them. Finally, I have talked with my own children about my professional
and personal observations, as well as their feelings and experiences."
Biography of Philip Stahl, Ph.D. (not in psychology), from his website
at http://www.parentingafterdivorce.com/books/parenting.html web-accessed
March 1, 2007.
[ANONYMOUS LISTSERVE COMMENT]:
"Liz, Your ability to offend is possibly your strongest skill. My
"Daddy" died when I was 16. The average Ph.D. takes about 30
units of research related coursework, not a couple of classes. Your example
of out of state practice is an example of psychologists thinking about
the law, a point that I conceded. As to extracurricular matters such as
raising a family, that has nothing to do with professional training. Your
response reflects your training as a lawyer. You vociferously advocated
for your position while demeaning a contrary position. You did not analyze
the factor of training separate from other factors such as family experiences,
age, professional history." (California doctorate-level MHP, May 2,
2005, who strongly pushes fathers' rights positions).
[ANONYMOUS LISTSERVE COMMENT]: "I
certainly recognize that, as ___ has asserted, the judge isn't "fooled"
into thinking that I am neutral and unbiased if I am hired to testify by
one side. However, that dilemma doesn't take away the critical importance
of maintaining as much real and perceived neutrality as possible when testifying..."
(New York doctorate-level MHP, March 7, 2006).
97. See the companion article to this one, Custody Evaluators: In Their Own Words, at this website at http://www.thelizlibrary.org/liz/custody-evaluator-quotes.html
two separate occasions, discussion on the anonymous listserve ensued regarding
gender bias in the context of making recommendations, and wondering about
the percentages of recommendations other evaluators made for primarily
mother versus primarily father custody. A number of evaluators apparently
believed that having made roughly equal recommendations for mother or father
custody illustrated their neutrality and lack of bias. This unfortunate
misperception of what would evidence "equality" is pervasive
in the MHP community, and an error made even by some lawyers. "Equality
before the law" does not mean an artificial "equality of outcome"
derived from disparate treatment; mothers and fathers rarely stand before
the law in equivalent positions. Notwithstanding changes over the past
few decades in the public discourse and cultural mythology, most mothers
remain their children's primary caregiver, and most fathers remain the
greater breadwinner. Reproduction itself is not gender-neutral; the populations
of mothers and fathers simply are not comparable on average, and an admission
that half of an MHP's recommendations go to primary father custody is an
admission of bias discounting mothers' experience, efforts, commitment,
and closer attachments with children.
99. Stephanie J. Dallam & Joyanna L. Silberg, Myths that place children at risk during custody disputes, 9 Sexual Assault Rep. 3 (2006). Richard Gardner's gems include such comments as "Older children may be helped to appreciate that sexual encounters between an adult and a child are not universally considered to be reprehensible act. The child might be told about other societies in which such behavior was and is considered normal. The child might be helped to appreciate the wisdom of Shakespeare's Hamlet, who said, 'Nothing's either good or bad, but thinking makes it so.' In such discussions the child has to be helped to appreciate that we have in our society an exaggeratedly punitive and moralistic attitude about adult-child sexual encounters." Richard A. Gardner, True and False Accusations of Child Sex Abuse, Creative Therapeutics (1992), at p.549.
100. See Stephanie J. Dallam, David H. Gleaves, Antonio Cepeda-Benito et al., The Effects of Child Sexual Abuse: Comment on Rind, Romovitch, and Bauserman (1998), 127 Psych. Bull. 715 (2001), responding to the claim by Rind and company, inter alia, that child sex abuse sometimes could be an innocuous or even positive experience, and in such cases should be referred to using the ostensibly non-value-laden terminology "adult-child sex". The Dallam et al. article can be accessed on-line at the Leadership Council Website at http://www.leadershipcouncil.org/docs/Dallam2001.pdf
[ANONYMOUS LISTSERVE COMMENT]: "These high
conflict, frequent flyers are likely to be destroying their kids. Someone
needs to make decisions for them since they obviously can't. Note the limited
scope of decision making authority in the SM or PC role. There is a problem
switching roles from therapist to SM or PC or whatever we call the decision
maker. See AFCC Guidelines For Parenting Coordination (available on their
website) which speaks to that point. One of the problems is that you move
from a confidential process to a nonconfidential one, and all that that
entails in terms of practical difficulties.Some 60%+ are likely to have
personality disorders." (Canadian doctorate-level MHP, December 24,
102a. [ANONYMOUS LISTSERVE FATHER'S DAY NEWS ARTICLE DISTRIBUTION]: "Sunday, June 19, 2005 6:01 AM CDT Nontraditional fathers strive to stay involved with kids despite challenges... WATERLOO -- This is the day to celebrate dads. Across the country, men are surrounded by their children..." (Doctorate-level MHP, June 20, 2005).
For a brief but decent overview of the "services" and history
(but omitting mention of the promotional role played by make-work MHP trade
organizations in pushing these ideas and convincing "courts"
that they want and need them), see Jessica Pearson, Court Services:
Meeting the Needs of Twenty-First Century Families, 33 Fam.L.Q. 617
103. [ANONYMOUS LISTSERVE COMMENT re a pending criminal case against one parent for tax evasion]: "I guess I'd wonder how we'd know that the parent is such a wonderful parent if he or she is lying all the time. The parent may be doing some admirable things in front of witnesses, but if you have uncovered a pattern of systematic misrepresentation in what the parent tells you, how can you rely on the parent's account of what he or she does when alone with the child. I'd wonder if the parent is also teaching the child to lie, or inducing the child to lie in the context of the custody dispute. As you said, though, the issues have to be relevant to parenting. This is another reason I don't review tax returns. In addition to the fact that I'm not qualified to judge how "kosher" they are, the base reate of people who cheat on their taxes is probably high enough that there are some wonderful parents who do it... and I have no expertise in determining if the parent is even doing anything illegal... If, on the other hand, the data reveals a consistent pattern of one parent misrepresenting information related to the custody dispute, it raises a lot of other concerns." (California doctorate-level MHP, November 23, 2005). [Query: what, in this context, would be "information related to the custody dispute" -- only evidence of a misrepresentation made directly to the custody evaluator on topics of the MHP's choice?)
104. Meddling with others' families is meddling with their very images of self. For one scholar's point of view on the disjunct between science and individuals' perceptions of their families, see Kerry Daly, Family Theory Versus the Theories Families Live By, J. 65 J. Marriage & Fam. 771 (2003). "...there is significant disjunction between the way that families live their lives and the way that we theorize about families. Using the metaphor of positive and negative spaces from the art world, I argue that there are many negative spaces in our theorizing -- everyday family activities that take up considerable time, energy, and attention but that are poorly represented in our theorizing about families."
105.The psych literature on custody itself is decidedly biased. Studies that do not support their theories tend to be ignored. For an example of a largely ignored study, see Daniel N. Hawkins, et al., Parent-Adolescent Involvement: The Relative Influence of Parent Gender and Residence, 68 J. Marriage & Fam. 125 (2006). The following quotes are from that study, which tends to disprove many pet MHP claims about joint custody, maternal gatekeeping, and post-divorce father involvement:
106a. [ANONYMOUS LISTSERVE COMMENT]: "Here are some examples of the things I look at... Collateral data on parent child relationship... what child has to say about relationship... initial response of child to learning of upcoming contact with parent, initial responses of child to initiation of contact with parent, responses of child to separation from parent. Observations of child-parent interactions in home environment and outside environment. Child centeredness of parent's home environment, given parent's type of residence and custody status. Parent's placement of child's needs, and interests over keeping to scheduled contacts with child. Given precursors, including court orders, parent's participation in child's life. Given precursors, parent's knowledge of child's likes, dislikes, preferences. Given ability, parent's willingness to alter lifestyle to accommodate child's needs... They lead to subjective opinions, but my reports contain citations of what I, or other saw, heard, observed to go with the opinion." (California doctorate-level MHP, June 13, 2006).
106b. [ANONYMOUS LISTSERVE COMMENT]: "Intuitively and clinically it makes sense to me in 50/50 custody situations to have children of latency age plus to have a 5/2-2/5 schedule as opposed to 7/7, that is, 5 days with Parent A, 2 days with parent B, 2 days with Parent A, 5 days with Parent B versus one full week with each parent. The 5/2-2/5 has the children living with, say Dad, on all Mondays and Tuesdays, let's say, Mom on all Wednesdays and Thursdays and to alternated Friday-Sunday one weekend with one parent and the other with the other parent. BUT I know of no research that supports this intuitive and/or clinical belief of mine. Do any of you have research that supports 5/2-2/5 vs. 7/7 (or that supports 7/7 being better than 5/2-2/5)?" (California doctorate-level MHP, October 5, 2006).
107. [ANONYMOUS LISTSERVE COMMENT]:
"If we view a "locked in" alternating weekend schedule as
a "3-3...," with four days left to build in, then: 1) dividing
the remaining four in half means we end up with a 5-5-2-2 - strike one;
2) dividing the remaining four into 3 and 1 means we end up with a 6-6-1-1
- strike two; and 3) keeping the remaining four together means we either
end up with 4-4-3-3 that doesn't alternate weekends, or a 7- 7 that flips
them..." (California doctorate-level MHP, January 19, 2007).
particular malady also seems to affect a lot of women judges.
Academic study appears to be of little help in creating perspective. Much
research exists indicating that on average, fathers in intact homes spend
far less time than mothers do in direct and indirect childcare. Recent
research, however, has been touting an increase in father's participation
but much of the research as designed appears to perpetuate the same lack
of understanding of what constitutes primary parenting.
See, e.g., W. Jean Yeung et al., Children's Time With
Fathers in Intact Families, 63 J. Marriage & Fam. 136 (2001), finding
that fathers in intact families spend 67% as much time on weekdays, and
87% as much time on weekends as mothers do doing childcare.
[ANONYMOUS LISTSERVE QUERY]: "I was recently appointed to
a case in which there is a quesiton about splitting up siblings (ages 2
and 3) rather than keeping them in home home. Instead of appealing to "conventional
wisdom", I'd like to familiarize myself with the research in this
area. I'd appreciate being pointed to such research/papers by those of
you who so kindly and often repeatedly share their bibliographies.""
(California doctorate-level MHP, February 13, 2005).
111. [ANONYMOUS LISTSERVE INTRO]: "I have been performing child custody evaluations in New Mexico for almost 20 years... Raising a stepdaughter has made me sensitive to many of the issues in divorce/custody cases. I have a good relationship with my stepdaughters father, and his mother..." (New Mexico doctorate-level MHP, February 23, 2006).
In the absence of research, MHP's speculations mislead as to the state
of their "expertise." There is no apparent requirement that self-styled
experts demonstrate a clear research foundation for their ideas or even
their own parenting ability prior to making proclamations about what is
good or bad for other people's children and families. Moreover, popular
trends, un-backed by research, and promoted by political activists, permeate
the MHP and lay literature, then the MHP recommendation-making, and finally,
William M. Grove & Paul E. Meehl, Comparative Efficiency of Informal
(Subjective, Impressionistic) and Formal (Mechanical, Algorithmic) Prediction
Procedures: The Clinical-Statistical Controversy, 2 Psych. Pub. Pol.
& L. 293 (1996). ("Despite 66 years of consistent research findings
in favor of the actuarial method, most professionals continue to use a
subjective, clinical judgment approach when making predictive decisions."
p.299. "Clinical experience is only a prestigious synonym for anecdotal
evidence when the anecdotes are told by somebody with a professional degree
and a license to practice a healing art." p.303) Available on the
web at http://www.tc.umn.edu/~pemeehl/167GroveMeehlClinstix.pdf
"Histories of medicine teach us that until around 1890, most of the
things physicians did to patients were either useless or actively harmful.
Bleeding, purging, and blistering were standard procedures, as well as
prescribing various drugs which did nothing. In 1487, two Dominican monks,
Kraemer and Sprenger (1487/1970), published a huge treatise, Malleus
Maleficarum, that gave details on how to reach a valid diagnosis of
a witch." Id., at 219.
is usually recognized by the MHP, e.g. Pickar, supra, note
66b, but only when convenient or desired. Compare
the following. The first two commentators are uninterested in acknowledging
past financial issues that have wreaked family havoc, and arguably bear
on character as well as explain motives and feelings of the parties; the
third is interested in supporting a father's request to relocate, and so
believes that it is within his province to gather and analyze data about
prospective financial matters:
117. [ANONYMOUS LISTSERVE COMMENT]:
"Perhaps a logical extension of this would be for parents to consider
items such as toys and clothes to belong to each parent and not the child
to be taken freely between homes. Obviously, this should not become
a problem with a cooperative parenting plan in place. However, when
the issue of parents fighting over underwear not being returned, or making
a child change back into the same clothes they were wearing when they
came, it helps me in formulating my recommendations regarding the necessity
for a parallel parenting plan." (Oklahoma doctorate-level MHP, March
118. Supra, note 26.
119. "Groupthink" is a theory initially posited by social scientist Irving Janis. It might have application to the way legal and psychological organizations have assumed the validity of the concept of therapeutic jurisprudence without considering the underlying precepts, or in fact whether it is accomplishing anything at all of value. Those within the group who are vested in its ideas are the least likely to see the dynamic. See generally, James K. Esser, Alive and well after 25 years: A review of groupthink research, 73 Org. Behav. & Hum. 116 (1998).
120. Cf, note 62, supra.
121. Bruch, Sound Research, supra, note 3, Emery, A Critical Assessment, supra, note 3, and see generally, note 66b.
[ANONYMOUS LISTSERVE QUESTION]: "...My
role is to facilitate communication between the parties and implement a
plan for helping the kids reunite with their father. My role was redefined
to be a parenting coordinator/parenting plan facilitator with a clear plan
for me to oversee that involved therapy for the boys, meetings between
boys and father and gradually increasing times for the kids to see father.
There is a GAL who has done two updates so far. There is also a therapist
for the two boys. At this point there have been a few meetings between
father and sons with myself and the therapist present. The problem with
the disinformation became abundantly clear in one of the sessions with
the boys and dad in which they asked him a lot of questions. dad was honest
but careful in his responses to the children. Of course my role is to do
the impossible, because the boys have made it abundantly clear that if
their father cares about him he would back off. At this point the children
are supposed to be attending therapy which has happened very erratically
and father has backed off and is being coached on staying in touch with
the boys in unobtrusive ways. I am thinking of taking on the role of providing
information to the kids because I don't think anyone else will do it-It
just feels so contrary to anything I've done or recommended before. Then
the therapist can be there to help them process the info. The court has
clearly ordered that the parents comply with my recommendations. Any ideas
will be appreciated. Has anyone seen this done in this kind of case?"
(Massachusetts doctorate-level MHP, June 4, 2005).
123. Or their waiver of possible avenues of vigorous objection to the apointment.
124. For an example of how background might influence the MHP's investigation, perceptions and conclusions, see Lisa D. Cromer & Jennifer J. Freyd, What Influences Believing Child Sexual Abuse Disclosures? The roles of depicted memory persistence, participant gender, trauma history, and sexism, 31 Psych. Women Q. 1 (2007). From the abstract: "Men believed abuse reports less than did women, and people who had not experienced trauma were less likely to believe trauma reports. Gender and personal history interacted such that trauma history did not impact women's judgments but did impact men's judgments. Men with a trauma history responded similarly to women with or without a trauma history. High sexism predicted lower judgments of an event being abusive. Hostile sexism was negatively correlated with believing abuse disclosures." The study at the University of Oregon found that "young men who have never been traumatized are the least likely population to believe a person's recounting of child sexual abuse." (News release, Believing child sexual abuse claims, U. Or. Univ. News, February 13, 2007, at http://www.uoregon.edu/newsstory.php?a=2.13.07-disbelievers.html)
125. [ANONYMOUS LISTSERVE QUERY]:
"My 8 year old son is complaining a lot about being bored in school,
to the point it seems to be affecting his overall happiness... I experienced
similar problems throughout elementary and high school.. Will talk with
the school but am seeking ideas to help him cope..." (Doctorate-level
MHP father, April 21, 2005).
126. It's far from far-fetched to consider bias stemming from sexual misbehaviors inasmuch as this is the single area which generates more complaints against MHPs than doing custody evaluations. See Pickar, On Being a Child Custody Evaluator, supra, note 13b, at 108.
127. [ANONYMOUS LISTSERVE COMMENT]: "The cloak of science very often does exactly that: Imbue what are value laden, subjective choices that reasonable people can disagree about with an air of objectivity and solidity that is, in my opinion, often deceptive. " (New York doctorate-level MHP, January 31, 2006).
128. Expect an insulted objection along the lines of "When you go to a doctor, he doesn't also take off his clothes." This arrogant and facetious analogy would be false, however. One about to undergo surgery certainly would be entitled to know if the surgeon had recently suffered nerve damage in his hand or had had five martinis at lunch. One suffering from an infection or in a weakened wounded state certainly would be entitled to know -- and have the opportunity to steer clear of -- a physician infected with a communicable disease or who simply did not believe in washing his hands. And finally, a litigant about to subject herself to a forensic examiner of her eyesight or hearing or broken arm would have every right and reason to question the physician's request that she take off her clothes, get on the table, and put her feet in the stirrups.
as it is to acknowledge, in an age and nation where expertise and excellence
are so venerated, child custody and other behavioral science experts generally
cannot reasonably demonstrate that their ability to make accurate pre-
or postdictions is any greater than that of an ordinary mind, or that their
expertise is more effective than that of another expert or a nonexpert."
Thomas M. Horner & Melvin J. Guyer, Prediction, Prevention, and
Clinical Expertise in Child Custody Cases in Which Allegations of Child
Sexual Abuse Have Been Made: I. Predicable Rates of Diagnostic Error in
Relation to Various Clinical Decisionmaking Strategies, 25, Fam. L.
Q. 217, 251 (1991), as quoted in Daniel W. Shuman, What Should We Permit
Mental Health Professionals to Say About "The Best Interests of the
Child"?: An Essay on Common Sense, Daubert, and the Rules
of Evidence, 31 Fam. L. Q. 551, 567 (1997). Shuman goes on to conclude
that "[L]aying the blame exclusively at the feet of mental health
professionals is misplaced. Perhaps the problem is not that psychologists
and other mental health professionals do not have empirically grounded
answers to these questions [about the "best interests of the child"]
necessary to resolve specific cases, but rather that the legal system has
chosen a standard based on the assumption that mental health professionals
do..." Id., at 569.
130. [ANONYMOUS LISTSERVE COMMENT]: "Once you have established a professional relationship with judges who often utilize your services, most of them are receptive to writing an Order that declares that the evaluation will be conducted in accordance with the policies and procedures outlined in your Statement of Understanding." (New Jersey doctorate-level MHP, May 3, 2004).
[ANONYMOUS LISTSERVE COMMENT]: "2
months ago, while serving as the Parenting Coordinator (PC) on a case,
one attorney called my office and wanted to depose me, before I submitted
my required report for a status update to the Court. They said it was a
courtesy call, offering me the professional courtesy of arranging for the
deposing and scheduling it without having to be subpoenaed. How thoughtful.
It was not cc'd to the other counsel however, so I wrote back and forwarded
the letter to opposing counsel. I received another letter from this attorney,
also not cc'd to opposing counsel and then the subpoena I requested...
When I got the subpoena, there were no arrangements to pay my fee beforehand,
so as time went by and nothing happened, I drafted a letter to the attorney
outlining me fees for depositions, which include certified payment at least
7 days prior to the deposition so I have time to prepare. I heard nothing
and he was shocked when I did not arrive..." (Arizona masters-level
MHP, October 25, 2006).
132. See, e.g., note 59, supra, in which a MHP describes his work as a "funnel" and "condenser" through which he selects "important" data.
glean an understanding of the issues and arguments involved in connection
with the release and disclosure of test data, see generally, Robert
E. Erard, Release of test data under the 2002 Ethics Code and the HIPAA
Privacy Rule: A raw deal or just a half-baked idea?, 82 J. Personality
Assessment 23 (2004), and Stephen Behnke, Release of test data
and APA's new Ethics Code, 34 Monitor Psych. 70 (2003).
refusal (individually or organizationally) to disclose test data, or otherwise
to render the obtaining of it cumbersome and expensive for litigants --
who properly are entitled to cross-examine them on what frequently are
inane conclusions ostensibly grounded on the data (and to prepare in advance
of trial to do so) -- is nothing short of an abomination.
primary reason expert testimony has been permitted in courts, notwithstanding
its various problems vis a vis hearsay and due process confrontation
rules is the belief of the non-expert judiciary in the probable reliability
and relevance of such testimony, coupled with the presumption that the
evidence on which the expert relies in forming his opinions not only would
not necessarily be within the ability of the trier of fact to analyze,
and/or also would be time-consuming and tedious to introduce into the court
proceedings. In the case of family court MHPs, these notions are absolutely
and dangerously false. The court's "gate-keeping" function (Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), reiterated
as to non-scientific witnesses -- which for the most part, these pseudo-scientists
are -- in Kumho Tire Co. v Carmichael, 526 U.S. 137 (1999)) is not
only not being exercised, it is being blatantly violated by the routine
appointment of MHPs in family law cases, and would be better exercised
by courts' flat-out refusal to do so barring extraordinarily rare and extenuating
circumstances, and notwithstanding ill-advised statutes and procedural
rules that permit them to do so (and which were themselves heavily lobbied
for by the MHP make-work industries).
136. [ANONYMOUS LISTSERVE COMMENT]: "In our court the jurists readily acknowledge that they almost always go with our recommendations, whether because the additional data tends to confirm it, they have learned to trust us, or they're ignorant/lazy. They rate "success" by whether the parties ever come back to court." (Doctorate-level MHP, April 11, 2002).
supra, note 71.
138. [ANONYMOUS LISTSERVE COMMENT]: "Actually, you're right, Liz: we do often do away with the lawyers, the judge, etc. The vast majority of these cases settle without ever going to trial after the evaluation is completed. And that's often a good thing... You are free to believe that a traditional courtroom adversarial process between parents through their counsel in which the children are never heard from and barely considered and in which an overworked judge (who is usually in family court because of a lack of seniority on the bench -- not any particular interest or experience in family law) occasionally looks up from his reading to listen to the lawyers' arguments is a better way to devise parenting plans for children -- but if you really want to uphold the great common law traditions, let's at least start using juries in all custody disputes, as they do in the Lone Star state. As for myself, I do think that many custody disputes need a different procedural approach than disputes over commercial property, which is how the courts acting on their own tend to treat children in the system..." (Michigan doctorate-level MHP, December 9, 2005).
139. [ANONYMOUS LISTSERVE COMMENT]: "...No question that court-appointed psychological experts provide fewer due process protections in their offices than litigants will get in the courtroom, but once the case goes to court, the experts are only offering their opinions. They have no legal authority and it's open season on their observations and conclusions. Their opinions need not be given any weight if the admitted evidence in the case differs from their factual understanding, if the criteria for their recommendations do not follow the law, or if the logic of their positions fails to hold up under cross-examination. The only thing interfering with due process at that point is poorly prepared lawyers and indolent judges." (Michigan doctorate-level MHP, December 9, 2005).
140. [ANONYMOUS LISTSERVE COMMENT]: "If in my custody matter (luckily I've never had one) an expert is going to be allowed to opine about where my children should live... I (and preferably the judge) should reasonably ask the following: Dr. before we allow you present your opinion, would you kindly present to the court the evidence that your discipline is in fact able to accurately identify best custody plans?" (New York doctorate-level MHP father, November 17, 2005).
-- an example of: Barbara A. Babb, An Interdisciplinary Approach to
Family Law Jurisprudence: Application of an Ecological and Therapeutic
Perspective, 72 Indiana L. J. 3 (1997) ("The focus of judicial
decisionmaking in family law needs to become how the state intervenes in
family life, rather than whether the state ought to intervene.")
Cite this article as: Elizabeth J. Kates, Reevaluating the Evaluators: Rethinking the Assumptions of Therapeutic Jurisprudence in the Family Courts, National Network on Family Law Policy research draft published at The Liz Library liznotes, http://www.thelizlibrary.org/liz/custody-evaluator-questions.html, accessed [date]. This webpage is still under construction and subject to revision. All versions are copyright 2007 The Liz Library.
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