Parenting Evaluations, Child Custody Evaluations, Forensic Custody Evaluations -- APA Guidelines for Evaluating Parental Responsibility
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) [1], 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. [3] 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 [4] (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. [5]

(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 [6] 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. [7] Sociologists, psychologists, and even real scientists by reason of their formal training tend to have little understanding of or appreciation for these legal concepts. [8]

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. [9] 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. [10] 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" [12] 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.) [14] 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 [15] 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. [17] 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. [18] 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, [19] 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. [21] 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! [22] 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. [23] 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). [24] 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. [26] 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. [27] Far too often, however, coming from a "healing profession" that tends to attract more liberal and empathetic types, [28] 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). [29] 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 [30] , 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. [31] 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). [32] Not a few MHPs occasionally (and a few regularly are known to) display egregious lapses of judgment by favoring litigants they personally like [33]. 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 [34], or who are friendly and cooperative with them [35], or who are more financially flush and timely pay them [36], 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. [37]

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. [38] 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.[39] 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. [40] 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.) [41] Because MHPs as such are untrained in analyzing legal evidence, under the pretext that they are doing "science" [42] 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. [43] 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 [44], 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. [45] 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. [46] 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) [47] and little in the MHP academic specialties or therapeutic work experience in the usual course renders them good decision-makers. [48] 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. [49]

(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), [50] MHPs have no more skill than the average man on the street to detect deception. [51] 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." [52] 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. [53]

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. [54] 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 [56] or AFCC [57], 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"). [58] It also serves to increase facility in writing reports [59], testifying in court [60], avoiding board complaints [61], 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). [62] The prevailing "wisdom" tends to be clubbish, perpetuated by group think and informal schmoozing in psycho-legal organization conferences, [63] frequently without scientific basis and unsupported by a consensus of research findings [64], 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. [67] Lawyer GALs usually get their appointments via cronyism with judges and other lawyers [68]; 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. [69]

The expertise is an illusion. [70] So are the benefits from these concepts. [71] 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" [72], 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. [73] (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. [75] 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. [76] So, based on MHPs' own admissions about what kinds of information will be relevant to their assessment of a parent's decision-making [77], 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 [78] 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. [79] 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 [81] 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. [82] The case can -- and usually will -- be derailed, even to the point of moving completely out of control. [83] Nothing about this process is enhanced by adding in an intermediary MHP, an information filter [84] who commences utterly ignorant of the facts, to gather garden-variety and other nonscientific information [85] 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 [86], 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. [87]

The expert in court is permitted to opine because he supposedly has unique particular knowledge that will be helpful to the court [88]; 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 [89] 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. [90] Frequently there is simply no scientific consensus at all on the issues presented [91], and yet the posture of expertise requires that the MHP to effect an arrogant derogation of popular common wisdom. [92] One might ask: if "what everyone knows" or popular belief or what seems "obvious" or "common sense" must be discounted by "the scientists" [93], 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. [94]

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. [95]

Psychologist MHPs tend to be trained to recognize and be rather publicly self-conscious [96] 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). [97] 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. [98] 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" [99] vis a vis pedophiles . [100] 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. [101] 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" [103], 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. [104] 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". [105] 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. [107] 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; [108]; 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 [109]; 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.) [110]

(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. [111] 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) [112] 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 [113], including a vague pretext to expertise via "clinical judgment" (guessing and gut feelings) [114] 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.) [115] 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 [116], 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. [117]

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". [118] 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 [119], 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). [120] 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." [121] 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. [122] 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 [123], 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." [124]

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. [125] 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. [126] 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. [127] 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. [128]

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. [129]

(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. [130]

(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. [131] At a minimum, all material and information used and considered (or just received or offered and not used) [132] 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. [133] 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. [134]

(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. [135] 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. [136] 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. [137] 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). [138] It's really not that hard. [139] 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. [140]

FOOTNOTES:

[A note about the footnotes regarding "ANONYMOUS LISTSERVE": the author of this article has spent nearly six years collecting and studying experienced and highly credentialed MHP's opinions in a number of different forums, including, inter alia, a private 200-300 member child custody listserve directly dedicated to custody evaluation issues, and has original documentation of all quotes provided herein. Typographical errors have been retained as-is. Additional quotations can be found here.]

1. "Guardian 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.
        In this attorney's experience, once a GAL is appointed, and especially once a forensic evaluator is hired (obviating the posturing that the GAL is necessary to determine or represent a child's best interests), the GAL and the GAL's lawyer frequently do little more than offer the occasional untrained and unqualified opinion or suggestion or demand, and hang out in the case indefinitely, churning hours, having communications back and forth with various players and collateral witnesses, meddling, exerting authority, attending hearings and depositions at whim, including subverting mediation processes which are supposed to be confidential, and generally accomplishing very little of value while running up huge fees. For a comprehensive exposition on the problems with GALs, see Ducote's article, infra, note 3.
        In various counties in Florida, appointment as a GAL is made from a crony list of the family court judge on the case, infra, note 68. Occasionally, a committed GAL will act assertively and with initiative on behalf of a child's actual interests, but this is rare -- not making waves, rubber-stamping the views of the evaluator and the judge's favored litigants, carrying out the agenda of executing waivers of the child's privacy rights, and generally not making any trouble guarantees further appointments.

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.

3. Numerous 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, infra.)
        See, e.g. Carol S. Bruch, Sound Research or Wishful Thinking in Child Custody Cases? Lessons from Relocation Law, 40 Fam.L.Q. 281 (2006); Margaret K. Dore, Court Appointed Parenting Evaluators and Guardians Ad Litem: Practical Realities and an Argument for Abolition, 18 Div. Lit. 4 (2006); Robert E. Emery, Randy K. Otto & William T. O'Donohue, A Critical Assessment of Child Custody Evaluations: Limited Science and a Flawed System, 6 Am. Psych. Soc. 1 (2005); Carol S. Bruch, Parental Alienation Syndrome and Alienated Children -- getting it wrong in child custody cases, 14 Child & Fam. L.Q. 381 (2002); Richard Ducote, Guardians ad Litem in Private Custody Litigation The Case for Abolition," 3 Loy.J.Pub.Int.L. 106 (2002); Margaret A. Hagen, Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of the American Justice System, Regan Books (1997), and and Jay Ziskin et al., Coping With Psychiatric and Psychological Testimony, infra, note 74.
        The foregoing articles can be accessed from links at "liznotes" http://www.thelizlibrary.org/liz/, Prof. Hagen's book is available at her website, and Ziskin's works are available at amazon.com and other booksellers.

4. See 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.
        [ANONYMOUS LISTSERVE COMMENT]: "If you look at the case law various jurisdictions, you'll find that a custody case doesn't automatically place the parent's mental health at issue...and privileged information isn't automatically accessible... see e.g., Freshwater v Freshwater, 659 So.2d 1206 (Fla. 3d DCA 1995); Leonard v Leonard, 673 So.2d 97 (Fla. 1st DCA 1996). (Florida doctorate-level MHP, May 3, 2004).
        [ANONYMOUS LISTSERVE RESPONSE]: "Not a custody case but how about a custody evaluation? Once the parties argue that one parent is less than in some ways, I think that the alleging parent is arguing that there is some screw loose. What does Freshwater and Leonard say?" (North Carolina doctorate-level MHP, May 3, 2004).

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).

9. 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:
        [ANONYMOUS LISTSERVE COMMENT]: "If you want the parents to cooperate, why not add a provision that they must go back to mediation or to a parent coordinator if they cannot come to an agreement. As long as the mediator or parent coordinator changes a reasonable fee, the financial incentives for the parents to cooperate is maintained (assuming each wants to avoid paying a mediator or parent coordinator) and there is a solution for persistent disagreements that is fair..." (Kansas doctorate-level MHP, October 24, 2005).
        More examples:
        [ANONYMOUS LISTSERVE COMMENT]: "...I never said that financial issues aren't relevant - of course there are parents who use their children for financial gain. What I said was that I'm not qualified to examine a parent's tax returns..." (California doctorate-level MHP, November 24, 2005).
        [ANONYMOUS LISTSERVE COMMENT]: "...issues of child support are totally separate from custody and parenting time determinations. Yet in one case... the attorney continually referenced the fact that I was 'failing to consider and give weight' to the fact that the father was $20,000 behind in child support... Fortunately, my appointment letter addressed that my role was separate from the financial issues... Indeed, I had not failed to give weight to the financial issues. I had totally ignored and disregarded them all along - because that's what I was required to do by law. Some attorneys will attempt to backdoor this issue; that is, they will claim that the child support arrearage represents a character flaw or defect - which might or might not be true. By the way, researching the literature about how fathers get so behind in child support yields some interesting claims on both sides of the issue." (Kansas doctorate-level MHP, February 12, 2006).

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.

12. 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 recommendations).
      [ANONYMOUS LISTSERVE COMMENT]: "Thanks, it is indeed interesting -- primarily for how seriously it muddles almost all of the relevant concepts -- psychological best interests, legal best interests, and the bases for judicial decision-making. Of course, conceptually confused articles can still be quite influential for all that." (Michigan doctorate-level MHP, September 21, 2005).
        Also compare Stephen P. Herman, et al., Practice Parameters for Child Custody Evaluation, Am. Acad. Child & Adol. Psychiatry (1997) with the Model Standards of Practice for Child Custody Evaluation, AFCC (Association of Family and Conciliation Courts) available at http://www.afccnet.org/.

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/

14. [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).
        [ANONYMOUS LISTSERVE RESPONSE]: "There is no training for wisdom, but it can be fostered by experience, reflection, and personal maturity. I think most judges want more than just a competent analysis -- they want sage advice." (Michigan 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.)

16b. [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).
        [ANONYMOUS LISTSERVE COMMENT]: "I think  the training a clinical psychologist gets, along with experience (and all the data we collect in CCE's), allow us to make meaningful observations about a person's behavior whether it is in a home or an office.  I have found that people are not very often "real" in their home environments, and sometimes act more artificially than in an office... (Ilinois doctoral-level MHP, May 19, 2007). Delusional.
        See more examples in companion article, Custody Evaluator Quotes.

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.

18. See 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
        [NOTSOANONYMOUS LISTSERVE COMMENT]: "We had a recent case where a psychologist was asked by a mother's lawyers to advise whether a child had been sexually molested by the father. She declared after interviewing the child (and not the alleged perpetrator, amongst others) that on the balance of probabilities the child's father had sexually abused her. Following this, another psychologist said the opposite. I made a strong stand on this, repeating something which I have often done here: "Child abuse is a crime to be investigated, not a condition to be diagnosed". Partly as a result, the issue has been referred to our Ethics Committee to see if we should even accept this kind of referral at all." (UK doctorate-level MHP, December 12, 2008).

19. [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).
        See more examples in the companion article, Custody Evaluator Quotes.
        What applies in the macrosphere also applies in the microsphere. For commentary generally on the difference between legal or political advocacy and scientific evidentiary standards, see Kyle D. Pruett, Social Science and Social Policy: Bridging the Gap, 45 Fam. Ct. Rev. 52 (2007). ("Science and advocacy play by different rules, employ different rules of evidence, and cater to different cultures. Advocacy is how we got things like Head Start. Science helped, but science could not do it alone, because science is by its very nature tentative about its findings. It is inherently skeptical and rigid about what we do know and what we do not know. Though it advances knowledge, that knowledge is perpetually incomplete. And that skepticism about the limitations of scientific data... is not the kind of enthusiastic endorsement that judges and lawyers like to hear.")
        (Interestingly, Pruett appears to be suggesting in his article ways to remain unimpeachably scientifically accurate while using manipulating language in order to move social policy and political positions, notably with respect to his focus on "fathering" -- and I'm not sure I care for the implications of that. Or perhaps he is advocating that scientists should seek to influence social policy. I'm not sure I care for the agenda'd implications of that either: "We have learned to stop talking about child development as a positive construct in and of itself, isolated from the lives of the children we are trying to improve. Nobody really knows what it means. It is a yawner... We now talk about the value of love and relationships in the first 3 years... Policy makers seem to appreciate, remember, and feel more compelled to act on these kinds of information.")
        [ANONYMOUS LISTSERVE COMMENT]: "...as Pruett points out, numerous times, GATEKEEPING refers to restricting the involvement of one parent's interaction with his/her child. Pruett points out that many woman are vastly more prepared (emotionally and behaviorally) for parenting a child at birth than are men. He notes a negative effect when well meaning mothers control how fathers interact with babies, as it often gives them the message that they are incompetent, or "assistant" parents. He notes that many men begin to withdraw from parental duties as a result. He also notes, Liz, that this is bad for children. What Pruett advocates for is for men to become active parent, in spite of many social messages that their greatest benefit to the child is that of breadwinner." (Doctorate-level MHP, April 10, 2006).

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.
        See, e.g., the practitioner who endorses "parental alienation syndrome" and went even further, concocting "malicious mother syndrome" hypocritically claiming in a judges' publication, after a negative Florida appellate decision condemning the exhorbitant costs of unnecessary MHP "investigating" in the runaway case Higginbotham v. Higginbotham, 857 So. 2d 341, 341 (Fla. 2d DCA 2003), that "more than a decade ago" he had been reviewing the field and calling for better science: Ira Daniel Turkat, On the Limitations of Child-Custody Evaluations, 42 Ct. Rev. 8 (2005), available on-line at http://aja.ncsc.dni.us/htdocs/publications-courtreview.htm. (Aw, come on Ira.)
        And see Janet R. Johnston, Introducing Perspectives in Family Law and Social Science Research, 45 Fam. Ct. Rev. 1 (2007). ("Despite these generally accepted guidelines, the problem remains that, in politically charged areas of divorce and child custody, too many social scientists and legal scholars are seduced -- wittingly or unwittingly -- into becoming advocates for political positions and social policies rather than being objective or balanced reporters of research findings... I have identified seven common techniques or strategies employed in the field that certain advocates use to destroy the standing of research data and researchers whose data they do not like, half of them at times found in peer-reviewed journals and used, at times, even by well-known and well-respected scholars. These I have named: (1) The Strawman, (2) Cherry Picking, (3) Leading Authority Declarations, (4) Scholarly Rumors, (5) Character Assassination, (6) Boycott the Researcher, and (7) Stalking and Hit Lists. Although I refer to these as techniques or strategies, I do not want to imply that they are always conscious, deliberate, or manipulative ploys. Rather, it is quite possible that those with strongly embedded frameworks for viewing and acting in the world will honestly construe other viewpoints in terms of their own using these or similar modes of cognitive distortion.")
        (Note that the Family Court Review, which is published as a scholarly journal, in the house organ of the AFCC, infra, note 50, a trade promotion organization.)
        [NOTSOANONYMOUS LISTSERVE COMMENT]: "It seems to me that part of the problem is that psychologists are given too much influence on decisions that require findings of fact. I often give conditional opinions in such circumstances. For example, I might say, "If the jury (or other fact finder) believes that X took place as alleged by the prosecution (or other party), then my risk assessment is as follows... If the jury believes the subject's account, then my risk assessment would be as follows..." I am usually very explicit that it is usually not my job, and often beyond my expertise, to tell the TOF whether or not an alleged event happened as claimed by one side or the other." (Arizona doctorate-level MHP, adhering to a very different paradigm in a criminal law case, March 24, 2007).

21. Many 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.
        [ANONYMOUS LISTSERVE COMMENT]: "I use a very detailed questionnaire. It is about 10 pages long asking for names, dates, events, past therapy, prior marriages, children, etc., etc. I do not provide a lot of space on my form. If the parent can be very succinct, they can complete the info on the form. If they tend to be obsessive, histrionic or narcissistic (sound like most parents involved in custody battles), they will need to write on the back pages of the questionnaire, or attach their written answers..." (California doctorate-level MHP, January 13, 2005).

22. "Important, 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].
        [ANONYMOUS LISTSERVE COMMENT (same MHP)]: "IMNSHO, I think the fact that we are appointed to give the Court as much information as possible trumps collateral protection beyond a written statement at the outset (and also on whatever form, if any is used to collect data) that the information provided by the collateral is not confidential..." (California doctorate-level MHP, March 17, 2007).

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."
          [ANONYMOUS LISTSERVE COMMENT]: "...We custody evaluators are appointed to do our own work, at least in interviewing and evaluating... I would think that part of my job would be to generate my OWN follow-up questions... don't know how any computerized questionnaire can do that... also a little troubled by the intent that evaluators "cut and paste"... interpretive language of any kind... into their reports... what "follow up" questions will pop up based on the parent's responses?... how would the evaluator-user justify, on the witness stand, why they chose to ask alienation questions... if neither parent has raised that as an allegation? ..." (California doctorate-level MHP, responding to the idea, September 10, 2006).
        [ANONYMOUS LISTSERVE COMMENT]: "...the section on "Differential Treatment of Parents" (about two-thirds through the sample report (at http://www.wpqonline.com/), under "Symptoms of Possible Mental Health Problems") seems to invite alienation claims if parent was not thinking of such claims, and seems to suggest strongly how to support such a claim if parent is thinking of it. It seems to me to be way too suggestive/leading. In effect: Now, parent, would you like to consider making a claim of PAS? If so, have you considered claiming that your child does X? How about claiming that your child does Y? And don't forget Z, have you considered that as possibly supporting a PAS claim? (This is assuming that the questions posed to the parent closely parallel the topics covered in this section of the report, and I suppose I could be wrong in making that assumption.)" (Ohio doctorate-level MHP, February 22, 2007).

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).
        [ANONYMOUS LISTSERVE RESPONSE]: "As I asked before, is there not a record on the computer used to get the medicaiton?  What could we conclude if there were cookies to several overseas pharmicutical supply websites?" (Florida doctorate-level MHP, February 22, 2007).
        [ANONYMOUS LISTSERVE RESPONSE]: "Data on a PC are not ordinarily privileged (unless they happen to be communications with therapists, lawyers, etc.). Without a privilege, they are subject to ordinary discovery if examining the data is likely to lead to relevant evidence. There is a general Constitutional right to privacy under prior interpretations of the 14th Amendment, but the threshold for overcoming it in legal discovery is ordinarily set very low. I'm given DVDs containing the contents of parents' PCs all the time by counsel for the other parent." (Michigan 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).
        [ANONYMOUS LISTSERVE COMMENT]: "I've had a co-worker who had an evaluee receive a report and then go out and murder their spouse and child and then kill themselves. Had a colleague who had a supervised visitation where the supervised parent lured the other parent to a storage unit (to allegedly split up some property) and shot the spouse and then themselves. Plenty of existing violence issues in each case, but no hint either would suddenly escalate like that; that's part of the nature of low frequency events -- hard to predict." (Texas masters level MHP, January 24, 2007).
        Also see Michael C. Seto, Is More Better? Combining Actuarial Risk Scales to Predict Recidivism Among Adult Sex Offenders, 17 Psych Assessment 156 (2005) (The use of multiple actuarial instruments does not improve ability to make predictions).

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).

27. Indeed 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".)
        Interestingly, MHPs do frequently refer to and profess to be applying all kinds of real or imagined presumptions and public policies as pretextual justification for their own personal preferences and biases (such as joint custody, or anti-relocation). The following example is telling, because the inquiring MHP, a prolific writer of custody literature, clearly does not understand what she is talking about, and yet is "researching" to write an article (that advocates for particular legislation or policy? or that purports to teach lawyers about presumptions in the law? See the end of this note.) The exchange should properly appall any judge who ever appointed a custody evaluator, thinking that he was getting an expert psychological opinion:
        [ANONYMOUS LISTSERVE REQUEST]: "We're working on an article on presumptions in custody cases. Can anyone point me to references advancing the arguments for or against this method of decisionmaking? I'm familiar with many of the arguments on both sides, but am looking for citations, articles, and stuff I can quote. If anyone has e-copies of anything they can send me back channel, I'd be most grateful." (California doctorate-level MHP, April 19, 2005).
        [ANONYMOUS LISTSERVE RESPONSE]: "What kinds of presumptions do you have in mind? Bio parent vs. other caretakers, established custodial environment vs. novel arrangement, involvement of both parents even when children clearly prefer to be with just one, "tender years," joint legal custody, joint physical custody?" (Michigan doctorate-level MHP, April 19, 2005).
        [ANONYMOUS LISTSERVE REPLY]: "...we are looking for material that either supports or refutes the idea of presumptions as a good approach to making decisions about children and families." (California doctorate-level MHP, April 19, 2005).
        [ANONYMOUS LISTSERVE RESPONSE]: "Aren't most legal presumptions reflections of societal beliefs and values (e.g., that blood ties matter more than psychological attachments, that maintaining continuity in child care arrangements is more important than tailoring them to subtly changing conditions, that fit parents should have control over contact with grandparents, that fit parents should have legal decision-making authority over their children) rather than factual commitments or problem-solving tools? Are you questioning the idea that society's values should be reflected in presumptions? If you say that all tables should be even and all decisions should be purely equitable and individualized, that would be a rather radical proposal." (Michigan doctorate-level MHP, April 19, 2005).
        [ANONYMOUS LISTSERVE REPLY]: "I guess that depends on what state one is in. Some presumptions are general... i.e. continuity of contact, while in some states presumptions have been proposed or enacted that are very specific. By the way, in CA, blood ties don't necessarily supercede psychological attachments. One can also differentiate general parameters (i.e. that children benefit from involvement by both parents) from some of the more detailed presumptions limiting judicial descretion that have been proposed. We're looking at the arguments on either side." (California doctorate-level MHP, April 19, 2005).
        [The entire exchange appeared to me to be somewhat akin to "researching" whether "laws" are a good thing, or whether medical diagnoses are a good thing, or the pros and cons of using one's time. The research on "presumptions" predictably culminated in an article by the original inquirer -- in this case co-authored with a lawyer who has worked as a GAL and the supervisory judge in the county in which the MHP works -- that argued against the use of presumptions in determining custody, i.e. policies that make more work for MHPs. (Also see discussions of cronyism, supra, note 1, and infra, note 68,]

28. Helen C. Harton, Gender, Empathy, and the Choice of the Psychology Major, 30 Teaching Psych. 1 (2003).
        The empathy and nonjudgmentalism is not unbiased, however. As a group, the MHPs do hold biases in favor of presumptions favoring father's rights positions (these foster more work for MHPs, particularly conflicted joint custody arrangements), and MHPs also carry all of the racial, religious, and gender biases of the culture they grew up in and their own backgrounds, as discussed infra. For this reason, use of MHPs in the court system has been boosted and supported by many father's rights organizations. See, e.g. the "S.P.A.R.C." website at http://www.deltabravo.net/custody/evaluator.php, the accused abuser defense techniques at http://www.allencowling.com/, and materials by Indiana family lawyer Kathryn Hillebrands Burroughs, Defending Accusations of Sexual Abuse in Divorce and Custody Cases, which apparently were prepared for distribution to other lawyers at a seminar, available at http://www.pennamped.com/CM/Custom/TOCResourceLinks.asp, all of which heavily push MHP involvement and various forms of alternate dispute resolution.

29. Tana 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 website http://tanadineen.com/COLUMNIST/Writings/custody.htm.
        Dineen is a problem in some respects in that she is spot-on when it comes to her analyses of MHP science and related issues, but she decidedly skews her focus toward an antagonism against women's rights-type therapists without similarly critiquing "the other side", and toward an overly heavy-handedly skeptical view of sex abuse and domestic violence accusations, without any indication of a balanced consideration of the many MHP abuses on "the other side". Margaret Hagen, supra, note 3, does the same thing. Skepticism to the point of being extreme can itself be almost religion-like and is inappropriate when what is at stake is only a sole versus joint child custody arrangement, not incarceration or a termination of parental rights.
        The works of both women (as well as others', e.g. Carol Tavris, e.g. Ira Turkat, supra, note 20b) lack adequate criticism of defense expert and bar misapplication of tentative memory research, as well as of nonsense such as "parental alienation" and "reunification" theories and therapies (after all, being "alienated" arguably also is a form of MHP "victimology" advocacy). It's unclear whether these substantial flaws are because of personal agendas (Hagen believes her own brother was falsely accused of sex abuse), because their initial works are about a decade old now and some things have changed (Dineen also hails from Canada which may trail behind the U.S. in psycho-legal trends), because neither of them considered what policies and practices move the big MHP divorce industry bucks, or because -- hailing from the MHP community themselves -- they have failed to see their own shared cultural biases with a majority of that community and how they themselves have been propagandized into a particular point of view. Or perhaps they simply catered to the father's rights and false-accusations defense crowd to make their books more controversial and marketable with the lay public. At any rate, there is much of value in the work done by both of these women; nevertheless, the hypocritical lack of balance -- the same failing that widely permeates the MHP child custody literature -- does need to be taken into account when reading them.
        [ANONYMOUS LISTSERVE COMMENT]: "We all love measurement. It does so much to enhance the perceived objectivity of what we do. But its effectiveness is diminished when we don't know what it is that we are measuring..." (New Jersey doctorate-level MHP, February 26, 2005).

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