Reevaluating the Evaluators: Rethinking the Assumptions of Therapeutic Jurisprudence in the Family Courts
Child Custody Evaluation, Parenting Evaluation, Parenting Plans…
Reevaluating the Evaluators:
Rethinking the Assumptions of Therapeutic Jurisprudence in the Family Courts
This article discusses the minimum disclosures every child custody evaluator (also known as "parenting evaluator" or "best interests" guardian ad litem or GAL) , or parenting coordinator (herein called a "mental health professional" or "MHP") [2a] should be required to make, responding satisfactorily and in full, before being appointed in any family law case to do a child custody evaluation — in fact before doing anything beyond answering a list of limited, detailed, specific, and narrowly-crafted questions the answers to which are directly within the MHP’s field of proved expertise. This format is being used to help illustrate a problem, and with another purpose in mind. That purpose is to call for a revolt altogether against the notion of "therapeutic jurisprudence" — which has been proved to do little to benefit children, much to benefit the divorce industry, much to complicate and pervert our family laws, much to erode fundamental rights and liberties, and much to harm the families who become trapped in the system. There are many problems, of course. But they are symptoms. Step one is to get the agent of most of them out of our family courts. The Emperor has no clothes.
There have been many calls for reform [2b], but for the most part, while they are admirable and well-documented intentions, they miss the boat; while they identify various problems and propose fixes in the system, they fail to identify and address the core reason the system is sick. Thus the proposals seek to treat only symptoms while failing to apply a cure to eliminate the disease.
Contrary to the public perception, and the perception that those seeking lucrative appointments in the court system wish to convey, a degree in some field of mental health does not qualify the individual to perform work that consists of open-ended investigating, evaluating, recommending, or decision-making about other persons’ families and children.  What originally commenced, and was thought to be a good idea as a judge’s assigment of fairly narrow tasks designed to streamline fact-finding and protect individuals’ therapy records  (e.g. asking a social worker to do a home study, e.g. asking a psychologist to opine on the possible effects on functioning of a party’s known or suspected personality disorder or state of depression when mental health already is at issue) has burgeoned into a free-for-all in which a panoply of MHPs make work and involve themselves in the family court system at enormous cost and detriment to the parties with expensive litigation-exacerbating processes, trials-within-trials, experts and counter-experts, and inevitable referrals to additional MHPs (often cronies) for all manner of alternate dispute resolutions and sometimes endless (and often utterly unproven) therapies. 
(1) Do you have a law degree or previous extensive experience as a law enforcement officer doing investigations, and if not, what qualifies you to do this work?
The milieu in which the MHP will be working is the justice system, in which litigants have certain rights of due process  and in which decisions made in connection with one issue can materially affect a litigant’s position as to seemingly unrelated issues in the same case, and in which milieu, inter alia, centuries of jurisprudence have honed certain concepts involving what constitutes reliable evidence, burdens of proof, and other legal aspects bearing on the ultimate resolution of a case.  Sociologists, psychologists, and even real scientistsby reason of their formal training tend to have little understanding of or appreciation for these legal concepts.
For example, MHPs frequently fail to appreciate how financial issues in a case, or even work and childcare schedules may affect motivation and litigant positions, and also fail to appreciate the impact their recommendations can have on other issues.  They not infrequently make recommendations that are practicably or legally unworkable, which fail to consider the lives and welfare of families as a whole, which burden rather than enhance family functioning, which exacerbate rather than alleviate parental conflict, and which are based on less-than-reliable or complete evidence or on their personal biases or agendas.  They often seem to not appreciate or understand that the parents are civil litigants who have not lost any of their legal rights (and indeed, they sometimes exhibit an astonishing lack of respect for parents in conflict with each other, and even the lawyers and judges in the cases.) [11a] They tend to be vested in protecting themselves, their paychecks, and their "behinds" as the first priority (contrary to the traditional definition of a "professional") [11b], and they often appear to lack even a rudimentary understanding of why they are present, posturing as having a broad authority and expertise they do not have, coupled with fuzzy ideas about what they are supposed to be doing and their "role". For example, some think the sum total of a custody case is something called "the psychological best interests of the child"  which aside from not being the custody decision-making standard in any state of the United States, is itself an undefined concept; others have opined that they are ‘the child’s voice"[13a] or the "eyes and ears" of the judge [13b]; and others behave as if rather than being just another witness in a case, they are tantamount to being the de facto judge (the court, by calling them in, presumably having admitted to incompetence beyond uttering administrative orders for their benefit at the parties’ expense, and handling case minutiae.)  And yet, they and their organizations have been instrumental in moving law and public policy toward a revolutionary deform of our family court systems for decades.
But it’s not just a forensic investigation or opinion. Save for the pretext of parens patriae  and the state’s interest in children’s welfare, the child custody evaluation appointment would be akin in another context to a court saying to an agent of the state:
"These two businessmen have a breach of contract case. There could be a negative impact on the local economy. Do an investigation and see if there are any other issues between the parties, or pertaining to either party. Check out how they run their businesses, and whether they could benefit from a reorganization, or a consultant, a receiver, or whether one or both of them are better suited to go into another line of work. See if you can figure out why they don’t trust each other and cannot seem to get along. Feel free to collect the parties’ medical records, financial records, maybe even therapy records; search their offices and homes; interview anyone who might have interesting information — employees, family, friends, customers, landlord, contractors. Then give me a report on whether there are any other matters they haven’t raised in this case pertaining to their business practices and future plans, any other problems with how they run their companies, and some recommendations… "
Aside from the open-ended free-for-all, central to the problem is that MHPs use evidentiary standards in their work that are far different from those in operation in the justice system. [16a] Clinicians often go with their gut feelings, [16b] whereas more academic-oriented Ph.D. types get bogged down in examining the xylem and phloem while ignoring the forest in their desire to apply to the case the latest psycho-pop ideas and the trendiest but often irrelevant (and sometimes misrepresented) new research, not infrequently cherry-picked to accord with where they want to go.  After gathering information by rote procedure, hit-or-miss, and at random, in a way that to a large extent is not specialized investigation pertinent to the case at hand or even goal-oriented (but which gives the impression of having conducted an "investigation"), when determining whether a fact is "proved" they do not use or appreciate standards such as "preponderance of the evidence" or even "clear and convincing evidence" and often operate from a presumption that civil proof of matters that might also be considered to be crimes must be "beyond a reasonable doubt" or to a certainty.  This is unfortunate because all too frequently, courts ask MHPs to investigate and opine on whether alleged events, such as abuse, occurred, including as threshold issues, without understanding that these individuals actually are unable to provide the court with a coherent answer to these questions,  and thus, their responses, even before the complications of chimings in by additional experts and "counter-experts" too often will be misleading rather than enlightening [20a], and unproductive as far as facilitating a usable legal finding enabling the litigation to move on. [20b]
Illustrating the nondirectional, goal-less sort of rote information collection designed to make it look like there is some kind of methodology ensuing (and wherever possible, quantitative methodology), with some kind of expertise behind it, are the MHP’s "standard" form "intake questionnaires" usually given to custody litigants. These are invariably absurd, burdensome, and highly intrusive fishing expeditions that in large part seek information unlikely to lead to the discovery of relevant matter in a particular case — and which would rarely be permitted by a court in legal interrogatories. But although the net is cast wide, it not infrequently is cast in the wrong direction. One well-known evaluator asks litigating parents how many hours a week their own father worked, what "nonromantic partners" influenced their lives, and details about their past "important" sexual relationships, as well as requesting names, telephone numbers, and other contact information!  Another’s parent questionnaire goes through a litany of requested medical details about the parents and children posturing in a way that seems to want to give naive individuals the impression that the "doctor" is akin to a physician, asking about such things as pregnancy vomiting, whether any of the subject children were premature and their birthweights, and the ages at which the various children were toilet trained.  The questionnaire of one "medically-oriented" evaluator who does this has about an inch of space for the parent to respond to a compound question about how often the parties disagreed with each other, what the nature of the disagreements were, how the parties resolved arguments in the marriage, and whether any arguments resulted in domestic violence (and no other questions about coercion and control, domestic violence, financial issues, or even the reason for the marital demise). Many evaluators also send out form questionnaires to "collaterals" (third party witnesses) that are no better, and which include among the questions asked, the soliciting of lay opinions such as "Based on your knowledge and observations of this family, what placement/custody/visitation arrangement do you believe is in the best interest of the child(ren)? Please explain your opinion."
MHPs are neither investigators [25a], nor do they have crystal balls [25b] any more than anyone else does to use to predict the future, whether that be risk assessment, or parenting capacity, or how well a child will do in an unknown situation. Confirmatory bias, logic errors, and other thought errors are rampant. They not infrequently will exaggerate doubt when that is unwarranted, or opine with certainty on other matters without basis for doing so, depending on their biases. [25c] For example, an MHP may readily express "doubts" whether a convicted batterer will continue to abuse, but express confidence that a child "needs a relationship" with the abuser.  When MHPs do apply presumptions going to public policy or a safety default regarding risk, they are applying presumptions that non-MHPs, such as a judge, also are equally or better able to apply, because the presumptions bear on legal decision-making, and are not about science.  Far too often, however, coming from a "healing profession" that tends to attract more liberal and empathetic types, when the matter is one that involves risk, MHPs err on the side of undue optimism and with a nonjudgmental compassion for all, e.g. in domestic violence and other abuse situations — and too frequently they do so erroneously.
In addition (and I believe this problem originates at least in part from a desire to preserve the aura or glamour of "expertise"), MHPs too often hunt for the unusual tangents, seeking evidence that demonstrates hidden facts (which, ostensibly, only the MHP could have discovered or recognized as valuable information). These are used to argue for counterintuitive recommendations (justifying the MHP’s participation in the case).  Some of the supposedly unseen parental defects (or strengths) are claimed to have been gleaned from psychometric tests which have not been normed on custody litigant populations, or which are misinterpreted  , or which do not yield information in any event that has been shown directly or indirectly to affect parenting (and which, therefore, offer little, if anything, scientifically accurate or relevant in this context), or which are tests that the MHP is simply not "expert" in administering or interpreting.  Because overt litigant history is obvious to everyone (and requires no expert to observe), MHPs frequently argue for discounting past circumstances and behaviors of the parties as predictive of the future (the very evidence that the justice system otherwise would likely find to be the most reliable).  Not a few MHPs occasionally (and a few regularly are known to) display egregious lapses of judgment by favoring litigants they personally like . It also is not uncommon for MHPs to lean in favor of litigants whose lawyer got them the appointment or who routinely sends them referrals , or who are friendly and cooperative with them , or who are more financially flush and timely pay them , rather than basing their decisions on relevant evidence going to the issue of child custody. (Every lawyer who has worked for any length of tme in the family law system has seen this, and knows that it’s not just expert "whores of the court" hired by one side who do this.) And many MHPs are just ideologically biased, outright. 
A divorce case is not experimental research. Nor is it therapy. Notwithstanding the careful checks and balances the justice system has in place for determining the relevance and reliability of evidence, MHPs by reason of their profession actually are untrained in assessing such evidence, e.g. determining whether hearsay evidence they receive is reliable.  The MHP forensic investigation is in no way comparable to, for example, a physician doing medical tests to "investigate" prior to opining on the cause of an injury or illness. Making matters worse, MHPs frequently will arbitrarily bias their own receipt of evidence by failing to interview individuals (such as family members) who would have the greatest personal knowledge of facts, considering these "collaterals" — often without even meeting with them — to be unreliable advocates for one side or the other, based, ironically, on nothing more than these individuals’ own proximity to the facts or one of the parties.  Instead they espouse preference for the opinions of "professionals" such as the family physician (who might see a child a total of five minutes a year) or a public school teacher (who rarely has any first-hand idea of a child’s actual home life.)  Because MHPs as such are untrained in analyzing legal evidence, under the pretext that they are doing "science"  and of a strained objectivity, they frequently fail to apply appropriate standards of probability, cumulative effect, or reasonableness (a legal concept they often do not understand) when weighing evidence, making judgments, or choosing what to "investigate" or what hypotheses to pursue.  They inject numerous iatrogenic effects into child custody cases, and this problem is well known — but the repeated self-interested proposals for fixes, which invariably are more MHP involvement ideas (shorter evaluations, private consultations, coachings, recommending mediations, parenting coordinations, etc. etc. etc.], or industry-initiated "trainings", ignore the underlying problem , which is that MHP involvement in the court system is an inherently flawed concept that does not fit within due process notions of evidence and oversight, and that MHPs simply do not belong in the court system except, perhaps, on rare occasion in a strictly defined and narrow forensic role to respond to specific inquiries within their realm of actual expertise.
Unlike the field of law (and very unlike the hard sciences), nothing about the mental health professions either naturally selects for or deliberately trains for good analytical thinkers and logicians (a primary goal of traditional law schooling), or provides experience in decision-making.  While individuals vary academically, the mental health professions also draw from a demographic population that tends to be overrepresented with bright curious "feeling types"; those who end up as counselors and practitioners, rather than full-time university researchers, have talents skewed more heavily toward verbal and interpersonal ability than math skills. Overall, they are not of the natural analytical (math and logic) caliber of students heading into the hard sciences.  MHPs in practice instead are trained to be "non-judgmental" in both clinical and forensic practice (to the extent the nonjudgmentalism is posturing, it’s de riguer posturing)  and little in the MHP academic specialties or therapeutic work experience in the usual course renders them good decision-makers.  By contrast, lawyers, judges, and even the less academically-oriented in the field of law enforcement have to issue-spot and make decisions, big and small, constantly and continuously in the course of their daily work. And while many lawyers become trained in continually taking different sides of issues and laying aside their personal biases in the representation of different kinds of clients, nothing in the MHP background in and of itself serves in this manner as a natural ongoing training in objectivity and neutrality. 
(2) What is your actual field of professional expertise, and what makes you expert in what’s good for other people’s children or how other people should live their lives?
Assessing and analyzing the evidence occurs concurrently with and after investigating. Contrary to the impression many of the lay public have about "psychological experts" (a result of several decades of trade promotion and public relations by organizations such as the APA and AFCC),  MHPs have no more skill than the average man on the street to detect deception.  Moreover, while they are not supposed to opine about witness credibility on the stand (this is a task within the province of the court’s trier of fact), it’s a virtual certainty that this kind of judgment nevertheless will be applied continuously throughout the course of any "forensic investigation."  At a later time it becomes virtually impossible accurately to tickle out from the MHP’s end product, his underlying decision-making leading up to in-court testimony and recommendations, i.e. how he applied credibility judgments on an ongoing basis throughout the process. 
Matters are made worse in that most MHPs have substantial deficits in their training and experience going to relevant psychological issues presented by a given case, especially non-psychologist MHPs. And most psychologists have leaned toward specialization in their own past practices, which also discounts their "expertise" as a know-everything generalist and means that for the most part they are little better than laypersons — a few courses in graduate school do not an expert make in substance abuse, domestic violence, parenting capacity (or even what constitutes "good parenting"), child sex abuse, family systems, psychometric testing, infant attachment, personality disorders, child development, breastfeeding, sibling relationships, child education, medical decision-making, communications, marital relations, and so forth.  In addition, child custody matters are not limited to these arguably psychological issues either. Decision-making in a child custody cases will turn on practical considerations such as a litigant’s job training, time-scheduling, other family members’ needs, and financial issues that impact family life, as well as the state’s custody decision-making factors, including some, such as "moral character", that MHPs typically are unable and unwilling to factor in to their analysis. [55a]
Moreover, having extensive experience doing child custody evaluations or parenting coordinations is itself fairly meaningless. [55b] This kind of experience provides training in things such as following practice guidelines and procedures (such as those promulgated by the APA  or AFCC , which themselves have been published in order to promote the trade practice and create the appearance that the many problems with these ideas, such as are identified in this article, can be addressed with regulations — and preferably "self-regulation").  It also serves to increase facility in writing reports , testifying in court , avoiding board complaints , and becoming familiar with what other evaluators like to do and think (such as gaining familiarity with customs in the practice or the prevailing views in trade literature about, e.g. attachment theory or relocation or domestic violence or parental alienation, whether right or wrong).  The prevailing "wisdom" tends to be clubbish, perpetuated by group think and informal schmoozing in psycho-legal organization conferences,  frequently without scientific basis and unsupported by a consensus of research findings , and defaulting to whatever positions are most likely to protect the MHP from liability [65a] or result in make-work for more MHPs. [65b] Experience in doing this work also enhances business contact networks and practice-building skill, as well as knowledge of general practice matters (such as fee setting and collections, and the sharing of intake forms and similar procedure and administrivia). [66a]
But doing lots of custody evaluations does not itself advance expertise in the underlying subject matter in which the MHP is supposed to be "expert". Neither does publishing lots of articles, whether those be the writeups of actual research, or soft essays in trade and legal journals.[66b]
Finally, the answers to the above question #2 as well as to the following questions are particularly important for lawyer and lay GALs, who also are being termed "MHPs" in this article. Even if they are trained investigators and legal system professionals, they not infrequently are far from "expert" about matters pertaining to children or marital or family life.  Lawyer GALs usually get their appointments via cronyism with judges and other lawyers ; often they are young and at the beginning of their careers (the judicial referrals are a way to build and sustain a new practice), and often, being fairly recently graduated from a lengthy and intensive course of academic study, perhaps supplemented with a few years of employment under sweatshop conditions as another lawyer’s associate, they are themselves without much in the way of childcare or parenting experience. Finally, once in a while (but too frequently), lawyer and lay GALs move into this relatively nonintellectual work (compared with legal practice) because they have particular social or political agendas. These issues are discussed at length in Dick Ducote’s excellent article, and also touched on in the related articles that can be found at the top of liznotes. 
The expertise is an illusion.  So are the benefits from these concepts.  The point of this article is not to denigrate any particular profession or individuals engaged in it, but rather, to point out the incurable defects in some really bad ideas. Currently, however, these ideas have become entrenched in practice in the family courts as "therapeutic jurisprudence" , so moving on to the next question…
(3) What is your own childhood family background?
There are many kinds of experience and expertise that will contribute to an individual’s decision-making impacting family life and children’s interests, and these are not limited to — or necessarily even primarily found in — the individual’s academic and professional training. Virtually all of us have families of some sort, and it’s fairly well-established in the literature that most of us get our basic ideas about what constitutes normal family life and what is "good" from our own experiences and based on our own values.  (Indeed the entire profession of psychology has a problem in this regard [74a] with "well-adjustedness" and its Merck DSM diagnostic scheme [74b], but that’s the subject for another article.) The point is that MHPs are not immune to or exceptions from this background biasing. And although some small minority of practitioners may be particularly wise, it is not their MHP academic or practice experience which should be credited for that. It’s their native intelligence, other life experiences, and childhood upbringing.  In fact, to the extent that MHPs have immersed themselves professionally for years with persons having all kinds of dysfunctions and problems, this experience, among other things, is as likely as not to have skewed their perceptions toward what’s less than healthy as being "average" or "normal", and to have created other biases.  So, based on MHPs’ own admissions about what kinds of information will be relevant to their assessment of a parent’s decision-making , it is imperative that the litigant-consumer’s attorney be able to assess the very same information that has influenced MHPs’ ideas about parental decision-making.
No other participant in the courtroom is brazenly professing to be an "expert" in the area of deciding what’s good for other people’s children and other people in their family lives. The judges and attorneys participate as experts in matters such as legal procedures, weighing evidence, advocating for (or in the case of a judge, judging) a parent’s position, both making continual decisions  based on the cases presented by the parents involved in the process and the application of law. And of course it is the litigants who themselves are the real experts on the facts, about the past, about themselves, about each other, about their family life and marriage, and about their own children.  Because the parents are in heated disagreement with each other (as are most litigants), it is assumed that the dispute and the high emotions will distort their objectivity or veracity (albeit not necessarily). [80a] The traditional justice system solution for this has been (as it is in all kinds of legal cases) open debate and advocacy. [80b] The relevant facts will be known to the parties or discovered through an orderly litigation process and properly brought by their lawyers as reliable evidence before the trier of fact; this will suffice to give the trier of fact a good picture and basis to see past the obfuscation of the circumstances and make a satisfactory decision based on the facts presented and in accordance with the law.
But now enter the MHP who professes to be the "expert" on what is in other persons’ family interests. This individual is in possession of none of the kinds of experience or broad knowledge of the facts that either of the parents or even, as the case progresses, the parties’ attorneys in the case will have, while also being permitted to pursue at whim if desired all manner of extraneous and often irrelevant tangents and theories not introduced into the case by the parties but which the MHP believes might bear on a child’s "best interests". Thus, under the pretext of "investigating," this individual will be deciding on his own what to investigate, and what issues should be raised in someone else’s civil court case, and drawing conclusions riddled with his personal biases and based on hypotheses drawn from experiential generalities and speculation.  The case can — and usually will — be derailed, even to the point of moving completely out of control.  Nothing about this process is enhanced by adding in an intermediary MHP, an information filter  who commences utterly ignorant of the facts, to gather garden-variety and other nonscientific information  culled in a pretense of doing investigation, in order to throw another version of common information into the pot, while pretending that the distortion created by this process, the MHP’s own weighing, judging, selecting, and summarizing of the often duplicative , unreliable, or irrelevant evidence is somehow adding "expertise." The reality is that there isn’t all that much of a decision to be made, and limited options — and when all is said and done, a custody schedule is as likely to be decided based on pragmatics such as the parents’ work schedules, or distance from each other as anything else. 
The expert in court is permitted to opine because he supposedly has unique particular knowledge that will be helpful to the court ; in the case of the MHP, that knowledge ostensibly is grounded in scientific research. Frequently, however, in the child custody area, there is no relevant specialized knowledge, and no good research, and the MHP conducts an "investigation" that is tantamount to a lot of cumbersome  smoke and mirrors justifying the expert’s involvement. Additionally, and to an extent that is just not found in most disciplines claiming to be grounded in science, the research literature in child custody and family sociology is fraught with misrepresentations, mistake, and activist propaganda.  Frequently there is simply no scientific consensus at all on the issues presented , and yet the posture of expertise requires that the MHP to effect an arrogant derogation of popular common wisdom.  One might ask: if "what everyone knows" or popular belief or what seems "obvious" or "common sense" must be discounted by "the scientists" , but there is in fact no scientific consensus on any alternative, then what are the real bases for the opinions of the MHP? To the extent the MHP has biases and preconceived ideas or agendas as might anyone else, those biases not only will tend to strongly influence the MHP’s thinking and conclusions, but in this situation ferreting them out also is not only fair game but mandatory in a way it otherwise would not be for another kind of system participant. Again, no one else in the system is posturing as "a neutral expert" in resolving these kinds of issues, and bias in the case of others (such as a judge whose decision-making history also is far more public) has remedies built into the system (due process) to preserve fairness. 
For the foregoing reasons then, depending on the particular circumstances of a case, it would be appropriate to consider the answers to such questions as: whether the MHP as a child had issues involving the absence of or abuse by one of his parents, the relationship the MHP had and has with his own father and mother, and whether any negative issues are ongoing and still causing distress, and whether the MHP has particular longings or regrets over things he imagines he missed such as an absent parent or a lack of siblings, or alternatively whether he carries a picture of what’s healthy and normal based on his own circumstances, whatever they may have been; whether the MHP grew up in an intact or widowed or divorced home; whether the MHP has siblings, and if so the nature of his past and current relationships with them; whether the MHP had his own mental health issues stemming from his family of origin, perhaps even things that instigated his pursuing a major in psychology in college; what was the MHP’s grades and performance in elementary and secondary school (a copy of the MHP’s high school transcript at a minimum is required to lend perspective to what the MHP might consider acceptable or unacceptable achievement), whether the MHP had medical or academic problems as a child, which could color his beliefs as to how these non-psychological issues should be handled; whether the MHP had doting or absent grandparents and extended family, and his feelings about that and whether he misses them or carries a particular picture in his mind of what these relatives mean; whether the MHP came from a religious home or a family with a certain cultural background and whether he carries that as a default of good or bad, or even whether he tends to "overcorrect" in his attempts to not let his own personal belief systems color his thinking, and whether or not he even is able to identify when he does this. 
Psychologist MHPs tend to be trained to recognize and be rather publicly self-conscious  about acknowledging their own biases, but unfortunately many times this only results in absurd overcorrecting to the point at which they are in fact unable to exert common sense to make decisions or judgments that comport with generally accepted ideas about what is normal or healthy, or even what’s realistically workable for the everyday lives of the individuals in question (except, of course, if those ideas have been placed into the popular discourse by the trade associations themselves, or happen to serve the MHP’s own agenda).  An example would be the many MHPs who think that half of their recommendations "ought" to be for father custody in order to demonstrate a lack of gender bias.  Another example would be the extreme "sex-positive" (that’s a euphemism) liberalism of many MHPs that comports with neither parents’ belief systems, a more extreme example being the sort exhibited by the late Richard Gardner, the inventor of "parental alienation syndrome"  vis a vis pedophiles .  Another would be the perception that most custody litigants in high conflict cases must be mentally ill or personality disordered in some way, a handy alibi to obscure additional unnecessary or ongoing conflict and issues that themselves were created by incompetent advisors, decision-makers, and therapeutic jurisprudence engineers.  Yet another would be the lack of respect and defensive biasing that too many male and career-oriented female MHPs exhibit toward mother-infant attachments and stay-home primary caregivers, and a biasing toward what is more unusual and politically trendy, for example, a stay-home father. [102a] To the extent his "expertise" is not in fact grounded in science, the MHP deflects serious criticism of and inquiry into that reality by posturing as if it does not matter anyway because somehow he is the "expert" of ordinary life too — educated, visionary, sophisticated, and broad-minded — justifying the substitution of his judgment over that of presumably provincial and flawed ordinary others, and the provision of his "services" for "therapeutic jurisprudence" to "families". [102b]
Some of this sort of unwillingness to acknowledge the average custody litigants’ choices, history, and ideas of "normality", and busy-body sort of inclination to rearrange or engineer their and their children’s lives according to the MHPs’ own value systems is simply indefensible; other of it may be a good thing in a clinician who needs to be either educational or nonjudgmental about a clinical patient. But none of it does much to recommend the MHP as an investigator/decision-maker with regard to other persons’ real everyday lives, assessor of the past choices they have made, and recommender of how their future lives "should" be lived.  Of course, sometimes MHPs just have out-and-out agendas or biases that they recognize and acknowledge which they refuse to correct for under the posture that they know better, because they are the "expert".  And in this, the risk is high that what are merely their personal values and preferences will falsely parade as in some way grounded in science. [106a] (A common example would be the MHP who has taken a shine to an arbitrary particular custody scheme, such as the 5-5-2-2 idea [106b], or Wednesday night overnights, and tends to apply it formulaically as being in a child’s best interests in case after case with different circumstances notwithstanding that there is absolutely no research basis supporting this preference.  More examples: the MHP who, because of his own family experiences and values, such as his own mother having worked, or who is still angry paying an ex-wife alimony, thinks that a mother who stays home with children is lazy and ought to be out working in the real world; the MHP who resents that she herself had to work after her baby was born and therefore so should the litigant who is before her; ; the childless MHP who thinks that because a mother has been employed full-time since the child was born she could not possibly have been the primary caregiver and thus it must be the father or the daycare institution ; the MHP whose father died serving in the military and fails to disclose his visceral reaction to the idea of any kind of childhood relocation, as well as anything else that in his mind takes Daddy away from a child; the MHP who herself was the only child of two older, highly verbal and doting parents, and who has no concept at all of sibling attachment or any realistic sense of the extent of one-on-one parent-child involvement in a family with four children and two harried time-stressed middleclass working parents.) 
(4) What is your own family, marital, sexual and relationship history as an adult?
And now the protests have reached a screaming pitch… But consider: if this role is as it’s professed to be, a fact-finding function based upon the review of evidence, in furtherance of a subsequent recommendation- or decision-making end result, why is there a problem? Consider the kinds of intrusive questions asked of some potential jurors. Unlike MHPs, jurors aren’t even present voluntarily, aren’t getting paid the big bucks to serve, and are subject to at least some controls (however imperfect) over extremism, bias, mistake, and flat-out stupidity in that we require them to serve in panels of multiples and to achieve some kind of consensus.  The MHPs here are posturing, quite possibly without any basis to be doing so, as family and child-rearing experts, and to the extent they factor various subjects into their ultimate opinion, implicitly also are representing themselves (at least until confronted in cross-examination on the stand)  ipso facto to be experts in the multiple academic fields of scholarship that might be relevant to a given custody case (assuming there are experts at all). An appropriate decision might include factoring in everything from the assessment of a school system, to the relative value of different extracurricular activities, to the impact of domestic violence or child sexual abuse, to whether it’s more important for a child to have weekly visitation with his father than to live with a mother who has to move with her new spouse and other children to another locale. The MHP is basing his claimed overarching generalist expertise about nearly everything he subjectively feels himself competent to consider , including a vague pretext to expertise via "clinical judgment" (guessing and gut feelings)  on the presumed existence of actual science or higher knowledge being applied in there somewhere, i.e. an expertise in the vast spectrum of sociology and psychology research, each study of which creeps in tiny increments toward what often is an inconclusive big picture. (See, e.g. the Myths and Facts pages at the liz library.)  There are inevitable gaps. No one is an expert at everything. No one can gain experience working in everything; there just isn’t that kind of time ("jack of all trades, master of none"). And those gaps will be filled in with something other than expertise.
Any given psychologist or other MHP is no more any expert on any particular aspect of psychology or sociology than every general practitioner is expert in orthopedic surgery or neurobiology, or every securities lawyer is expert in constitutional law. However, child custody (someone else’s family, someone else’s life) arguably encompasses (if indeed "expertise" is required) a mind-boggling possible array of knowledge fields , each one of which is a separate area of study and specialization. And once the MHP is involved in a case, once the MHP is qualified, there is little that can be done to stop the MHP from considering and opining on all manner of subjects that have nothing to do with the MHP’s actual expertise, save for the most obvious and gross of violations. 
In addition, there is inevitable bias as those with research expertise in particular aspects of the different fields, default to a lens of seeing concerns impacting their particular specialty as being of paramount importance in "the process".  Moreover, to the extent the MHP seeks to learn about other areas of specialization and discipline through papers and talks provided by cohorts who summarize the states of the research in their own pet fields at conferences and in books and articles (often speciously), the MHP, who is no better and arguably worse in some respects at ferreting out B.S. and groupthink truisms in his own circles than other persons, really has no good way of recognizing (if he even has the inclination or interest to do so) when and to what extent the "presenters" and article writers in other academic areas are biased toward their own importance, or toward advancing "the trade" if not toward advancing particular research agendas (their own professional exaltation or ideological agendas or the work promotion agendas and commercial interests of their organizations or the research grant-providers).  Moreover, unlike research in the fields of hard science, which at least is more vigorously documented, debated and advanced, there is far too much in the way of "think pieces" and agenda’d soft essays in the psych literature, posturing as "science."  And unlike the way forensic experts are used to respond to narrow inquiries made in court in other areas of the law, the typical child custody evaluation ("do an evaluation") is fabulously ill-defined and potentially unlimited in nature and scope.  What all this is leading up to is that, notwithstanding the posturing as "expert," in reality, the MHP is not close to "expert" as to the vast portion of what the MHP is busily doing, and moreover the MHP is applying the very same biases and agendas to his decision- or recommendation-making that any non-"expert" would be under such circumstances, but is acting under the dangerous and misleading guise of opining as a neutral expert who somehow really knows something others don’t.
So far from these topics being off-limits, any MHP seeking appointment in a court case needs to fully inform the parties prior to their consent , of information about the following kinds of potentials for bias and agenda: whether the MHP has been married or divorced, and how many times, and under what kinds of circumstances, and how the MHP currently feels about those events; whether, if divorced, the MHP went through litigation over custody or property, and such details as whether the MHP had problems paying or receiving child support, as well as the custody arrangements of the MHP’s own children and how these worked out and everyone’s feelings about them; the MHP’s own personal experience taking care of and spending time with children, within and without the scope of "parenting", and with regard to parenting, whether that was parenting as a primary caregiver, married or single parent, with or without household and third party help, or as a working parent or stay-home parent, and for how many children, and for how long, and the outcomes from all of that; i.e. how much time has this person actually spent caring for children on his or her own, and how well did this person’s own family systems function, and is this person in fact an "expert" in creating a functioning family and raising happy, healthy, successful children with good outcomes, nay "best" outcomes, thoroughly well-adjusted and having reached the very pinnacles of their innate potential. Of high importance in evaluating the qualifications of the MHP would be ascertaining such background information as the current ages and family situations of the MHP’s own children (if the MHP has children), and what their relationship currently is to the MHP and their other parent, and, if the children are substantially grown or adults, how they turned out — perhaps even contacting them for verification. The MHP is, after all, posturing as an "expert." 
All this isn’t to say that any particular family situation is necessarily a good or bad kind of thing, but we want to know, indeed are entitled to know this information, not only to assess qualifications, but also to consider the biases that will fill in the gaps in the scientific swiss cheese.  Some kinds of things, of course are of more assessment importance, such as whether the MHP divorced a spouse of many years and fought alimony, or seethes in anger over his or her own custody outcome, or hasn’t seen her grown daughter in five years, or cheated on a spouse, or laid or had laid against him or her any allegations of child abuse.  For example, if an issue in the instant custody case is one parent’s use of pornography, the MHP’s own beliefs, use of (even addiction to), and feelings about pornography and sex should be openly provided and considered.  If the disagreement between the parents is about religion and whether certain practices are harming the child, or about presumptions (such as the benefit of biological fathers or religious schooling) that may be grounded in religious beliefs, then it should be mandatory for the MHP to detail his or her own religious beliefs, because these are strong and irrational biases, none of which are about anything scientific or "expert." Ditto exploring such issues as S&M, homosexuality, domestic violence, and so forth. 
In case the question is rearing again into your mind about well what about the judge or the lawyers and their backgrounds, I remind you again that none of these individuals is posturing as a know-it-all family expert seeking to circumvent the system of jurisprudence and fact-finding with its due process checks and balances that have been honed over centuries in order to voluntarily (and for a fat fee) inject himself or herself into someone else’s family case, decide what issues should be addressed in that case, and tell them what’s in their child’s better interests and how to live their very lives based on his or her own peculiar values and investigations of facts that were not even necessarily introduced into evidence in the case by either of the parties, all the while pretending that there’s "science" involved in all this rather than snake oil. 
(5) Disclose in detail all prior contacts of any kind which you have had with any of the parties, experts, judge(s), or lawyers in this case, or the associates, family members, friends, or disclosed therapists of any of them in either a professional or social capacity.
Again, this goes to bias. See the discussion above. It’s sad that this question even has to be included, but there seems to be rampant ethical incompetence on the part of too many MHPs and family lawyers, and the incestuous referral feeding among MHPs, lawyers and judges only exacerbates it. 
(6) Why do you want to be appointed in this case, and…
In connection with exploring this question: the MHP should be required to disclose prior to appointment under what conditions he or she would stop working, withdraw from the case, not provide a report, refuse to attend a deposition, refuse to disclose all data (including testing data) upon request, or refuse to testify.  At a minimum, all material and information used and considered (or just received or offered and not used)  by the MHP in making his or her recommendations, should be immediately disclosable upon the completion of his or her report and preferably on an ongoing basis, without requiring the issuance of a subpoena or the obtaining of a court order, or the hiring of a receiving psychologist.  And everything should be disclosed simultaneously to both parties. This is the justice system here, and everything on which that MHP bases any opinion should be freely and readily disclosed in full without the usual game-playing, ass-covering, or expertise-mystery-making. Moreover all raw data, notes, and materials should be automatically turned over to the parties as a matter of course, preferably on an ongoing basis, but in any event at the time a report is completed and before it is admitted into evidence in any way, without even requiring a request, either directly to the parties or (at their choice) to the lawyer who works for them as their agent. 
(7) What do you perceive your role to be if you are?
We don’t do decision-making based on secret evidence or permit investigative free-for-alls under the guise of expertise or any other pretext in the United States of America.  To the extent the judicial community likes to make referrals for custody evaluations, parenting coordinations, GALs, and other alternate dispute resolution practices in the hope of palming off work, taking themselves out of the decision-making hotseat, easing their work schedules, or clearing their dockets (as they similarly have done in pushing for a variety of helper general magistrates and hearing officers and special masters — the subject of another article), that’s simply an inappropriate delegation of work.  It’s an inappropriate delegation to the very detriment of "the people" who employ them as government agents, and, moreover it’s behavior that would not be put up with in more respected areas of law with more sophisticated litigants (such as business disputes). Ironically, in the overall, this delegation of work does not serve to accomplish the above judicial goals: it’s counterproductive, and it has not been demonstrated to reduce litigation and judicial dockets a whit, and certainly not reduce costs or simplify matters. Rather, the evidence is contra.  Finally, the reality is that judges make these decisions without MHP assistance in all of the cases in which the parties have just as many difficult custody issues but simply cannot afford all of the "expertise". (There is no correlation between the parties’ assets and the complexity of the case, such as might occur in cases warranting fancy forensic accounting and similar financial expertise.)
To the extent the legal community that represents financially flush litigants enjoys the additional work and fees that come from complicating and prolonging cases, as well as the mutual back-scratching business referral thing, that’s simply unethical and perhaps it would be stopped if judges and litigants got wiser to it. To the extent that anyone with otherwise good intentions actually has bought into the voodoo of expertise, or it’s crept up on them unwittingly as the "industry" has grown, or has become habituated to automatically appointing or seeking the appointment of MHPs without really thinking much about it, it’s time to do a regroup and rethink. And to the extent anyone else has a sincere and laudable goal of actually reducing and simplifying litigation, or just doing what in the overall actually will benefit children and families, it’s time to recognize that these ideas just don’t work. The solution lies in enacting laws that are fair, sensible, simple to implement, and based in the realities of people’s lives and good science (not special interests).  It’s really not that hard.  Nor is the decision-making really that hard.
Hiring the MHP in a family law case is not like the hiring of a forensic expert to determine how many feet the car slid with the brakes on, or whether a particular medicine caused a patient’s illness. It usually does not expedite cases, reduce costs, simplify litigation, help children, result in better judicial decision-making, or result in better child-rearing outcomes. The bottom line is that at best it’s unnecessary — there are just not that many possible custody choices to choose from in the usual case, and a good custody decision is not that difficult to make. Somehow that happens in the many, many cases that either are settled early on by the parents themselves, or are decided by a judge when neither litigant has a big financial pot for these helping professionals to party down on.
It’s time we stopped pretending. 
[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).
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/
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).
[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/.
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, note37. 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 discussedinfra. 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 websitehttp://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 and visitation schedules to accomplish this while avoiding liability for placing children into situations in which detriment too obviously or easily can be proved to be the direct result of the arrangement.
Does such an outcome actually require so much concerted (and expensive) investigation and contemplation to come up with? No, it does not. Is it that difficult to ascertain who was a child’s historical primary caregiver, who is the more competent parent, where the child would be happier spending the bulk of time, whether Dad should have the additional overnight a week he wants, whether Mom really needs to relocate for her job, or — if the recommendation probably is going to be some version of "joint custody" anyway — whether the parents’ schedules and the child’s life work better on the 5-5-3-3 plan or with a rotating every other week schedule? No, it is not.
The posture of science is only required in order to justify an outcome that does not seem to make readily apparent sense. Few (if any) of the considerations that actually will move the final decision-making have anything to do with "science." It may well have to be "all about science" to the extent a trial court is diverted away from relevant matters off on a tangent about whether an initial evaluator (who arguably should not have been involved in the case in the first place) properly analyzed a psychometric test and similar, but the custody evaluator’s investigation and recommendations — and the court’s final decisions — actually will have little to do with anything scientific. Even if the custody evaluation reviewers are arguably more scientific in certain ways in order to counter the initial evaluator’s opinions, the "crafting of scientific custody evaluations" remains a posture ignoring that it was inappropriate in the first place to burden a litigant who disagrees with the recommended arrangement with a second opponent in court arging for what are, at the core, his own personal preferences. And as to this opponent, the litigant is faced with having to hire a reviewer with ostensibly more scientific expertise to litigate the tangential side case because the first MHP was presumed to have grounded his opinions in science, thereby shielding them from ready criticism inside an armor of unwarranted wisdom and credibility.
[ANONYMOUS LISTSERVE COMMENT]: " In the March/April National Psychologist, Jeffrey Barnett opines that delegating tasks to clerical/administrative staff such as test administration and/or scoring may be unethical. While I would not condone someone’s secretary giving or scoring a Rorschach, I don’t necessarily see a problem with something like the MMPI-2, assuming the professional has actually trained the nonprofessional. What do others think? What do others do?" (Missouri doctorate-level MHP, March 29, 2007).
[ANONYMOUS LISTSERVE RESPONSE]: " I know of no evidence that psychologists have better clerical accuracy than anybody else. My money would be in the other direction." (Doctorate-level MHP, March 29, 2007).
32. [ANONYMOUS LISTSERVE COMMENT]: "The research on pre-separation and post-separation involvement is complex. Pre-separation involvement may or may not be predictive of post-separation involvement. It’s mediated by quality of the relationship, dynamics at the time of separation, how the parenting tasks were divided during the marriage, whether Dad was never involved or withdrew as the marriage ended, whether Dad is "activated" more into the parental role by the events of the divorce vs. withdrawing, and a host of other situational factors." (California doctorate-level MHP, August 8, 2006, speculating).
There are more examples in Custody Evaluator Quotes.
33. The author personally has consulted in numerous cases in which MHPs consciously and deliberately favored the litigant they preferred for strictly personal reasons. In some cases, MHPs, most often GALs, engaged in secret friendships, including sexual relationships with one of the parties to a custody case; in others, personal relationships were more tenuous (e.g. a relationship with a litigant’s family member or close personal friend, consultant, or attorney). In one incredible case, an undisclosed MHP consulting for the father’s attorney simultaneously was observed spending the night at the home of the presiding judge (and kissing her goodbye in the driveway the next morning), and on another occasion, driving the automobile of the court-appointed custody evaluator, who in turn also was a friend and former client of the same judge on the case. In another case, an MHP acting as court-appointed evaluator re-entered the case a year after performing an initial evaluation to consult with the father and his lawyer.
Unconscious bias that influences decision-makers against litigants has been documented by research in numerous legal contexts. See, e.g., Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161 (1995). Also see generally D. Michael Risinger, et al., The Daubert/ Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 Cal. L. Rev. 1 (2002). On the phenonenon of bias that comes through in the use of biased forensic research, see D. Michael Risinger & Michael J. Saks,A House with No Foundation, Issues in Sci. & Tech. U. Tex., Oct 9, 2003.
34. Even in larger metropolitan areas, it is very difficult to avoid the reality that cross-referrals are rampant, that lawyers seek the appointment of MHPs they know and like and have worked with in the past, and that MHPs in turn make referrals to lawyers who send them work. Family lawyers are especially susceptible as a specialty to this kind of marketing because unlike business lawyers who might retain clients for many years, or personal injury lawyers who might obtain referrals from physicians or insurance agents, the sources of referrals in family law are more limited, and client relationships tend to be short-term, one-shot matters that occur at unpleasant times in the clients’ lives. Because of the MHPs’ injection of themselves into the family law milieu, and because a number of roles get filled by both kinds of professionals (eg. mediation, GALs), multi-professional organizations of family lawyers and MHPs are common, both locally and on a national scale, such as the AFCC (Association of Family and Conciliation Courts). While cross-networking in other kinds of businesses sometimes can be as beneficial and useful to the consumer as the service provider, in the family law context this has some unique drawbacks, and therefore is not akin to the cross-referrals that might take place between a financial advisor or accountant and an estate planning lawyer, or a real estate agent and a title company. The difference — and the danger — is obvious in the cross-referral system in the context of litigation that involves a relationship between a lawyer for one side of a dispute and a forensic evaluator who is purporting to be an unbiased neutral. Currently, however the kinds of existing or prior business or personal relationships with a party’s attorney that would disqualify a judge from hearing a case are not necessarily considered sufficient to disqualify an MHP appointed in a case in a "quasi-judicial capacity" as an ostensible "neutral" evaluator. Part of the reason for this is the MHP posturing of being "scientific" and, being in the mental health field, in some way better able to recognize and overcome the kinds of biases and errors of thinking that plague ordinary common folk.
35. [ANONYMOUS LISTSERVE COMMENT]: "We here in LA, in current practice, stand on the shoulders of a wonderful group of evaluators who made sure that OUR requirements, as well as the Court’s expectations, are in the order. Because of that, the expectations re the parties’ cooperation, release of records, and counsel’s responsibilities as well as those of the evaluator are spelled out – not least of which is that we don’t produce reports or testify unless we have been paid." (California doctorate-level MHP, June 24, 2006).
[ANONYMOUS LISTSERVE COMMENT]: "You can ask these people to participate, but we can’t make them cooperate… when one of them is unwilling to test or be interviewed, I simply make the statement, ‘Mr. Jones respectfully declined to participate’… I’ve reviewed reports where the evaluator has gotten really snippy over a step-parent’s unwillingness to cooperate, and made all sorts of assertions about their personality… " (Florida doctorate-level MHP, May 26, 2006).
36. [ANONYMOUS LISTSERVE COMMENT]: "I also offered that despite not being paid I would, as a respect for the Court, provide my report and seek payment afterwards – the judge in no uncertain terms admonished the client who has failed to pay. Subsequently that parent, through counsel, has objected to my report, and to my charges… The judge will be hearing both sides shortly. I suspect that I will be paid by order of the court, and I suspect that the judge is allowing that parent full reign to exercise their right to object, but that in the end that parent only does him/herself further harm…" (Florida doctorate-level MHP, July 28, 2005).
37. Compare these pleased and credulous, even excited, reactions to Sanford Braver’s relocation study, which conveniently was released just in time to be used in the MHP amicus brief in the California Supreme Court LaMusga case, and was repeatedlymisrepresented as finding harm to children when "parents" relocate, thereby providing an apparently longed-for expedient citation to "research" useful in making an argument against custodial mothers’ relocations:
[ANONYMOUS LISTSERVE COMMENT]: "J Fam Psych, must read… The new issue of Journal of Family Psychology is now in print. It is a special issue on psychology & law. Anyone who does relocation CCEs needs to get the two articles on relocation. Kelly & Lamb summarize the divorce effects & child developmental research on young children and applies it to the relocation issue. Braver et al. present their data on college students’ adjustment for those whose divorced parents relocated (either parent) one hour or more away vs. divorced parents who both stayed in the home community." (Colorado doctorate-level MHP, June 23, 2003).
[ANONYMOUS LISTSERVE RESPONSE]: "Has anyone been able to pull these up yet on the APA site?" (California doctorate-level MHP, June 27, 2003).
[ANONYMOUS LISTSERVE RESPONSE]: "I printed out the Braver et al article today (for free!) they charge for separate articles (11.95..ouch!) probably time to get on board with the online subscriptions services (overdue, actually…)" (California doctorate-level MHP, June 27, 2003).
[ANONYMOUS LISTSERVE RESPONSE]: "FROM WEBMD HEALTH ~ Post-Divorce Move Can Be Bad For Kids Children of divorced parents who moved away from the non-custodial parent can be more unhappy and unhealthy than others…" (California doctorate-level MHP, June 28, 2003).
With the negative and doubting reception for a new study finding harm to children from domestic violence perpetrated only against their mothers:
[ANONYMOUS LISTSERVE COMMENT]: "…The study was conducted by researchers at the Harborview Injury Prevention & Research Center in Seattle. They believe evidence of domestic violence is important in making custody decisions because children who have been exposed to their mothers’ abuse by an intimate partner are also more likely to be victims of abuse themselves…" (New Jersey doctorate-level MHP, August 11, 2005).
[ANONYMOUS LISTSERVE RESPONSE]: "If there was no mention of DV in the divorce file, then how did they know the father had a known history of DV… The next step would be to see how these cases developed post-decree, such as continued litigation, incidents of DV and such… and how did the children do in both groups post-decree…" (Florida doctorate-level MHP, August 11, 2005).
[ANONYMOUS LISTSERVE RESPONSE]: "I’d like to see the study. Anyone seen the actual study? If so, let me know and I will go thru it w/ a fine tooth comb 🙂 Thanks." (California doctorate-level MHP, August 12, 2005).
38. Or even whether it is admissible.
[ANONYMOUS LISTSERVE INQUIRY]: "[I]s the collateral section of the report inadmissable due it being hearsay? The objecting attorney is saying that it is unfair to his client b/c the collateral is not present in the court and cannot be questioned directly about what he or she said." (Doctorate-level MHP, December 29, 2005).
For discussion of this issue presented to MHPs, see Mark J. Ackerman & Andrew W. Kane, Psychological Experts in Divorce Actions. 4th ed., Aspen Pub. (2005), 2006 Supp.
39. Compared with psychologists, diagnosing physicians are trained in and do develop experience in continual decision making, as do lawyers and judges. Even so, a recent article discusses how flawed and fraught with error phsician’s decisions can be. SeeJerome Groopman, What’s the Trouble? How doctors think, New Yorker (January 29, 2007), web-accessed January 27, 2007 http://www.newyorker.com/fact/content/articles/070129fa_fact_groopman
[ANONYMOUS LISTSERVE COMMENT]: "I believe intruding into people’s lives and interrogating people’s family, friends and neighbors to get ‘collateral testimony’ does IRREPARABLE harm. I believe interrogating children to testify for or against their parents does IRREPARABLE harm. I do CCEs because the other available options (like a snap judgment by a family court mediator, or certain inflexible legal presumptions) probably do even more harm. A testable hypothesis, to use ‘scientific’ lingo. Where’s the proof that CCEs do better than ‘other available options” like jury trials? Not that I’m a fan of jury trials, but I believe ‘common sense’ trumps ‘science’ most every time… and I can expand on that belief in a rational way. (New York doctorate-level MHP, April 1, 2002).
40. [ANONYMOUS LISTSERVE COMMENT]: "Collateral witnesses are problematical. The evaluator never has time to adequately assess the witness and decide based on evidence what weight to give his or her statements. Alignments and distortions abound." (California lawyer, January 11, 2003).
[ANONYMOUS LISTSERVE COMMENT]: "The problem with this concept for CCEs is that it ignores the private nature of the family, and the desire of most family members to maintain a facade or all but their most intimates. Many things that happen within the secret realm of the family are not known outside that realm. Moreover, if the corroboration is based on second hand reports rather than actually witnessing events, it is more reflective of the tribal warfare alignments than of truth. Triangulation could rapidly become a 21st Century version of compurgation, with about as much validity. Ditto for accounts within a polarized family in which each faction has a party line." (California lawyer, January 12, 2003).
41. Ackerman, Psychological Experts, supra, note 38, p.183 ("Collateral contacts. The use of collateral contacts in the custody evaluation is important. Generally speaking, it is appropriate to obtain information from objective collateral contacts. Such contacts include school records, legal records, police records… Testimonials from relatives of a parent generally are of little value. However, if a relative of a parent is willing to provide negative information about that parent, it is generally weighed in the evaluation process.")
[ANONYMOUS LISTSERVE ASSERTION]: "One area of inquiry should be the contact that the parents have had with the teacher(s), i.e., both, if only one, which one, how frequent the contact has been, how responsive each parent has been to any notes sent homes and problems that the teacher(s) saw, which parent (or whether both) came to back-to-school night, teacher-parent meetings, etc." (New Jersey lawyer, December 8, 2004).
[ANONYMOUS LISTSERVE COMMENT]: "Teachers provide a valuable source of descriptive data on the child’s development. We are looking for relatively unbiased sources of how the child is doing with a variety of developmental tasks and domains. Today, I interviewed a teacher who showed this is a child with a "difficulty temperament" (a` la Hetherington; Block; Rutter) in contrast to the parents fairly Pollyannish description. Data is salient & critical re parenting plan issues since data decided to relocate to Texas and want the child for all of the summer, at age 8. I can’t think of a case with a school age child where teacher data would not be potentially valuable." (Colorado doctorate-level MHP, May 10, 2005). (An opinion to be formed based on another, hearsay, opinion?)
42. [ANONYMOUS LISTSERVE COMMENT]: "For this reason, I am very careful to not obtain private therapy records. Instead I schedule a consultation with the therapist to review only what is directly relevant to my evaluation." (Oklahoma doctorate-level MHP, August 19, 2006).
[ANONYMOUS LISTSERVE RESPONSE]: "Doesn’t that beg the question of how you determine that which is ‘relevant’? I assume you can’t rely on the therapist to determine what is relevant to YOU and refuse to disclose the rest. As an attorney I’m extremely hesitant to permit my adult client to authorize evaluators to communicate with the adult clients’ therapists. It generally burns the client-threapist relationship thereafter and often results in information from a therapist about the non-patient spouse based on subjective (sometimes distorted, either by the patient OR by the therapist) information from the patient that doesn’t provide much useful information about either parent." (California lawyer, August 19, 2006).
[ANONYMOUS LISTSERVE COMMENT]: "I often find that therapists have become advocates for their patients and cannot be trusted to be objective or to give me all relevant information while leaving only what’s irrelevant and not leaving out what’s unfavorable to the patient… Therefore I almost always request the file (and sometimes billing records too). My authorization form and cover letter say repeatedly that "your entire file from cover to cover" is being requested, but it’s clear most times that what I get has been cherry-picked anyway. It’s been fun on occasion to ask a therapist why they say their patient has no problems which could copmromise parental competence when the file is full of documented serious functional impairments and contains a serious diagnosis… Fishing? Maybe so, but I’ve caught some really big ones this way." (Missouri doctorate-level MHP, August 19, 2006).
[ANONYMOUS LISTSERVE RESPONSE]: "There’s more than one way to "catch ’em." I’m always amazed at the issues I ask about that the parent’s therapist had no idea existed, or have heard from such a distorted perspective that it’s ridiculous… If that’s the kind of therapist I’m talking to, that often becomes pretty obvious in the interview. Of course, if there is an issue as to the mental health of a parent (beyond the usual BS), I’ll request more records rather than less." (California doctorate-level MHP, August 19, 2006).
[ANONYMOUS LISTSERVE RESONSE]: "Far too many therapists seem to become reckless advocates for their patients…Where health insurance is involved, therapists have been disciplined as a result of discrepancies between statements made by them in reports to insurance companies and statements made by them in documents that come to light in custody litigation… If [California lawyer, supra] is correct that litigants can refuse to authorize their therapists to disclose information to evaluators, [she] should pitch this concept in NY and some other jurisdictions in which (1) litigants are routinely ordered to sign any release forms requested by the evaluator and in which (2) evaluators are specifically instructed to draw a negative inference if the release of information is not authorized…" (New Jersey doctorate-level MHP, August 19, 2006).
43. The process is a floundering expedition reminiscent of the children’s story about the six blind men and the elephant, only with a self-conscious awareness of that blindness by the MHP who attempts to avoid this problem (or perhaps obscure this fact) by using rote investigation practices gleaned from other MHPs (none of which have been demonstrated by any research to result in better child custody recommendations or child well-being outcomes) but which facilitate a posture of setting about a task knowingly and competently. Considerable confusion exists in the MHP community about when discretion should or should not be exercised (the danger of bias versus the entitled application of their assumed expertise and "clinical judgment"). See, for examples, the quotes in companion article, Custody Evaluator Quotes.
While how-to literature abounds, and "aspirational" practice guidelines have been promulgated (infra, notes 56 and 57), the authors of teaching manuals in this newly invented field, still under construction and much growth, appear to be designing their systems as they go along, as the "specialty" develops, talking from their hats, and often with little to no more practical experience than many of their audience. After all, there is very little science going on here. So the MHP functions in a milieu (the legal system) in which he is lost and unfamiliar, yet posturing as authoritative. There is much casting about for decision-making pegs on which to hang recommendations so that they appear to be grounded in expertise, and much incompetent discussion of law without evidence of any competent grasp on its broad underlying precepts. It is a problem that boils down to an arbitrary reinvention of what needed no fixing by those without understanding or appreciation of where they are functioning, or what is at stake, or (hardly clones of Jefferson or Madison), without the education or talent for such a pretentious government-making endeavor: the abdication and replacement of a justice system with rules, evidence, procedures, and checks and balances that were centuries in the making and honing.
See generally, e.g. Ackerman et al., Psychological Experts (2005), supra, note 41, at p.164. ("As part of the information-gathering stage, the evaluator decides which tests and other instruments to administer, what collateral information to gather, and whom to interview. At this point, the tests and other instruments are administered and scored, the individuals are interviewed, and collateral information is gathered… The second step of the evaluation is the processing stage. During this stage, all the information gathered through interviews, tests, or collateral sources is synthesized and processed by the examiner. It is the examiner’s responsibility to score and interpret all the tests administered. This information is then integrated with information obtained through interviews and supporting documents. The examiner should separate the more important information from the extraneous or irrelevant material…")
Investigator, goal setter, case strategizer, de facto decision- (recommendation- ) maker, and advocate presumed to be scientifically superiorly correct… all rolled into one. Imagine the shrieks that would ensue if judges arrogated to themselves all of this authority
[ANONYMOUS LISTSERVE COMMENT]: "…the hypothesis testing approach focuses the subsequent questions, quite possibly leading to confirmatory bias, and then is disavowed as "evidence." Rogers has advocated that the examiner obtain all the relevant data, without prior hypotheses, to avoid premature channeling of the investigation." (Doctorate-level MHP, February 18, 2006).
44. See, e.g. Robert B. Silver, Position Statement on Child Custody Evaluations, Assn. Fam. L. Professionals (2006), included in materials presented at the 15th Annual Conference for Mediators and Arbitrators, Orlando, Florida (August 24-26, 2006) and lobbied to participants, including lawyers and judges.
45. See generally, Ludy T. Benjamin, Jr., A History of Clinical Psychology as a Profession in America (and a Glimpse at its Future), 1 Ann. Rev. Clin. Psych. 1 (April 2005); Jean L. Pettifor, Ethics: virtue and politics in the science and practice of psychology, Canadian Psych. (Feb 1996); Robyn M. Dawes, House of Cards: Psychology and Psychotherapy Built on Myth, Free Press (1994); David Lee, An evaluation of prescribed learning outcomes in clinical psychology supervisor training, Leeds D. Clin. Psych. Prog. (2005).Also see (interesting read, a mixed bag, re the author’s take on the state of the profession of psychology in general), Nicholas A. Cummings, The APA and Psychology Need Reform, presentation to part of the panel of Psychology Needs Reform, "APA Presidents Debate the 10 Amendments", APA Convention, New Orleans, August 12, 2006, available online at http://www.drthrockmorton.com/APAneworleans.pdf.
46. Compare the undergraduate courses and academic record needed and other admissions requirements to get into a graduate program in the hard sciences or medicine, or even law with the requirements to enter a graduate psych program that is comparably ranked.
[ANONYMOUS LISTSERVE NONSENSE]: "Here is a math trick so unbelievable that it will stump you. Personally I would like to know who came up with this and why that person is not running the country. 1. Grab a calculator. (you won’t be able to do this one in your head) 2. Key in the first three digits of your phone number (NOT the area code) 3. Multiply by 80 4. Add 1 5. Multiply by 250 6. Add the last 4 digits of your phone number 7. Add the last 4 digits of your phone number again. 8. Subtract 250 9. Divide number by 2 Do you recognize the answer?" (California doctorate-level MHP, February 15, 2007). (Perhaps it’s not intuitive to every non-math-major, but why this works nevertheless is something that a presumably interested doctorate-level "scientist" should have been able to recognize in a few minutes by setting up and reducing a junior high school algebra equation; not getting "stumped and amazed" when values are assigned to x and y, y being a number with four digits, in the equation 10,000x + y). [More from the same mavin…]
47. Supra, note 28.
48. I am not referring here to just the ability to think and choose, the cognitive function that is studied under the auspices of the field of psychology and, when dysfunctional, treated by assisting the patient to learn "decision-making skills," but to the advanced development of a professional practice necessity: the ability to render ongoing, continuous, rapid, and competent decisions after swiftly taking in and recalling details, including decisions that must be made on less than a comfortable amount of available information, even when they may require relatively complex considerations, and made on behalf of others, under high-stakes, high risk circumstances that may immediately and sometimes unalterably affect those others’ fortunes and lives. MHPs (save for, perhaps the guy talking down the jumper from a building), just don’t usually work this way. And yet, as teaching "decision-making skills" attests, it is a skill, and continually exercising a skill is what strengthens that skill.
Everything that is done with human thought is by definition a province of the field of psychology; that is not the same as the particular skill being one that is constantly heavily taxed in the practice. For example, a psychological researcher might study aspects of high musically or artistically talented individuals, or provide therapy for a best-selling novelist needing to overcome "writer’s block" or a singer needing to overcome stage fright, but that does not ipso facto mean that the researcher necessarily shares those talents or has developed them in himself — or himself would be able to get on the stage and perform well. The same is true of decision-making skills. Some talk therapies are characterized by slow, seemingly endless ruminations and contemplations in which the clinician gently directs and prods. Some work involves collaboration, mediation, and "getting input" from multiple parties. Neither research, nor forensic or clinical evaluations are typically rushed, and they usually permit time for much information-gathering, pursuing of dead-end tangents, hypothesis generation, deliberation, second-guessing and rethinking. By contrast, the law enforcement officer needs to make veritable life-or-death snap decisions at times in the field. Judges and lawyers also engage in a similar rapid-fire analysis — which may include a considerable unseen "decision tree" of what-ifs to sift through prior to what looks to others to be "shoot from the hip" decision-making in a fast-paced trial or negotiation (but usually is not). The speed and accuracy that is demanded itself necessitates development of the ability to rapidly grasp underlying concepts, remember important details, understand the big picture, apply principles to facts in light of a goal, and see alternatives. The legal system, in which lawyers and judges are making these kinds of repeated judgement calls would grind to a complete halt were every "objection, hearsay" subjected to the sort of deliberation MHPs appear to exercise in their analyses of information where the ultimate decision to be made (custody) itself is pragmatically limited to very few alternatives, usually each with benefits or detriments that are just not all that obscure and difficult to discern. Good decision-making, with speed, under pressure, and still considering all important alternatives and facts, e.g. the emergency motion, the time deadline, is not a skill that characterizes the practice of psychology in any of its forms. By the same token, concerted thought, logical thinking, and in-depth analysis also are skills constantly in use in the practice of law, e.g. analyzing a case strategy, researching and writing a brief, or — for a judge in a bench trial — making final rulings following what might be a very complex case.
While MHPs market their opinions even where there is no research science to support them, as presumably a deeper and more thorough, implicitly mistake-free analysis conducted by a uniquely strong mind, as a rule, this is misrepresentation and not what is happening in practice. Many — and perhaps more — mistakes and bad decisions are made, and no research has shown MHPs’ custody recommendations, when implemented, to be more workable or creative, or to achieve preferable results for either parents, children, or families as a whole — on any measure — than the decisions made by judges — or by children’s primary caregivers. In fact, slow deliberations have not themselves been shown to result in general in better decision-making when the parameters are clear. (Malcolm Gladwell, Blink: The Power of Thinking without Thinking, Little, Brown (2005); Kathleen M. Eisenhardt, Making Fast Strategic Decisions in High-Velocity Environments, 32 Acad. Mgmt. J. 3 (1989).)
49. In fact the reverse. Usually hailing from a clinical background that has immersed the MHP in a skewed population of individuals with various and sundry personality, mood, and thought "disorders", and other problems that have brought them into therapy, the MHP is likely to develop an altered outlook as far as what the ordinary individual perceives to be "normal" as well as what behaviors accord with community standards and values.
Cf, Joel A. Dvoskin, Presidential Column: An Editorial by Joel Dvoskin, Div. 41 President, 27 Am. Psych-L. Soc. Newsletter 2 (Winter, 2007). (Commenting on forensic experts in criminal cases: "Let me state my case in short: There is no such thing as an objective expert witness… we are human beings. We come to each and every case with pre-existing values, learning histories, experiences, and prejudices, some of which are beyond our awareness… Second, we do this for a living. (Some of you may cling to the belief that money has no effect on you, but if I paid you enough… Third, most of us want to be praised. There is a plethora of research to support the proposition that people will almost always do more of what brings them praise. To pretend that we are immune to this apparently core human characteristic is self-serving and indefensible. Fourth, we are biased by the fact that the case gets initially "sold" to us by lawyers, many of whom are skillful and persuasive advocates of their client’s point of view… I know that we are not supposed to talk about these things. With a wink and a nod, we all claim to be objective arbiters of wholly truthful opinions…")
50. See Dawes, House of Cards, supra, note 45. The website of the American Psychological Association is at http://www.apa.org/, and the Association of Family and Conciliation Courts is at http://www.afccnet.org/. Although managed care issues and the explosion of numbers of MHP graduates are not mentioned, one nevertheless does not have to squint to read between the lines of the AFCC’s own published history, the below excerpt from the version web-accessed December 15, 2006, athttp://www.afccnet.org/about/history.asp:
"The first AFCC conference was held on Saturday, September 7, 1963, in Los Angeles. Conciliation counselors and judges from six counties in California gathered to talk shop… Interest in court-connected services spread beyond California… AFCC’s founding members had a different focus from those working in family courts and court services today. The job title for many court service employees was "marriage counselor." The work of the counselors focused on reconciliation between husbands and wives. Conference programs and Review articles emphasized the role of the court as a provider of short-term marriage counseling services and the use of husband-wife agreements to resolve marital disputes to promote reconciliation… By the early 1970s… Family court services were beginning to turn their attention to helping couples end their marriages with a greater sense of dignity and self-worth and with less trauma to themselves and the children… AFCC members and courts continued to lead the way in developing new services… The 1980s: The Mediation Explosion… Publications and pamphlets such as Parents Are Forever and Guide for Stepparents were being developed and offered for sale… Separated and divorcing parents were becoming a new constituency… By the mid-1980s, family court service programs were feeling the strains of the economy, and AFCC membership leveled off. The use of custody evaluations, overshadowed by the advent of mediation, was reemerging as custody disputes were becoming more complex and high-conflict… AFCC entered the 1990s, its growing membership was being professionally challenged by increasingly difficult family issues… The challenges posed by high-conflict families were front-and-center issues for most courts, and AFCC members led the way in developing new processes and techniques for working with these challenging family members. AFCC continued to serve as a catalyst for the dissemination of information through conferences, training programs, publications, and videotapes. Parenting coordinators, domestic abuse, mediation-arbitration, supervised visitation, custody evaluation, and child protection and dependency mediation…"
Hardly looks like the AFCC did much but initiate the explosion of therapeutic jurisprudence that preceded… the "increasingly difficult family issues."
For a recent example of this type of organizational trade promotion (and brainwashing of future lawyers and judges), see Forrest S. Mosten,The Potential of the Family Law Education Reform Project for Family Lawyers, 45 Fam. Ct. Rev. 1 (2007) ("Family lawyers are dependent on referrals from other professionals servicing our family law clients. These professionals belong to professional organizations that are committed to educating their members to better serve families during divorce. Once the FLER Report is circulated to these groups and their members, support should be forthcoming as confidence in the product of family lawyers can only increase if our referral sources believe that our newest colleagues are receiving more relevant and practical training as early in their careers as possible.")
For more insight into the history of California’s strange conciliation courts, see Meyer Elkin, Conciliation Courts: The Reintegration of Disintegrating Families, 22 Fam. Coordinator 63 (1973). The concepts of both marital conciliation, rejected as law but not as public goal, and community property in California, originally come from Spanish law.
The criminal bar has been somewhat more cautious than the family bar in embracing the notion of therapeutic jurisprudence.See, e.g., Morris B. Hoffman, The Drug Court Scandal, 78 N.C. L. Rev. 1437 (2000), Mae Quinn, Whose Team Am I on Anyway? Musings of a Public Defender about Drug Treatment Court Practice, 26 N.Y.U. Rev. L. & Social Change 37 (2000), Peggy F. Hora, et al., Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System?s Response to Drug Abuse and Crime in America, 74 Notre Dame L. Rev. (1999), and Gary Morse, An Argument Against the Creation of Mental Health Courts, St. Louis Post Dispatch (September 30, 1998).
51. The only groups with superior lie detection skills seem to be some unusually talented (and far from all) law enforcement officers such as police officers and secret service agents who have been described as "super lie detectors". See Samantha A. Mann, et al., Detecting true lies: Police officers’ ability to detect suspects’ lies, 89 J. Appl. Psych. 137 (2004). Also see Aldert Vrij, et al., Rapid Judgments in assessing verbal and nonverbal cues: Their potential for deception researchers and lie detection,18 Appl. Cognitive Psych. 283 (2004) (Those who make rapid judgments also may be more able to detect lies than those who deliberate). An earlier study found no difference in skill between ordinary clinical psychiatrists and forensic psychiatrists in detecting lying. See Paul Ekman & Maureen O’Sullivan, Who can catch a liar? 46 Am. Psych. 913 (1991).
Research continues in whether lie detection skills can be taught, with only minimal success thus far. See Samantha Mannet al., Looking Through the Eyes of an Accurate Lie Detector, 7 J. Credibility Assessment & Witness Psych. 1 (2006). Meanwhile, Ekman and his cohorts appear to have developed a commercial interest in doing lie detection skill "trainings", so it is unclear whether there is a vested interest in finding particular research findings. (The Ekman Group website is at http://www.ekmangrouptraining.com/publications.html). Their claims appear to have become controversial. See Charles F. Bond & Ahmet Uysal, On Lie Detection "Wizards", 31 L. & Human Behav. 109 (2007) (disputing the claims of Ekman and O’Sullivan to have discovered "29 wizards of deception detection") and Maureen O’Sullivan, Unicorns or Tiger Woods: Are Lie Detection Experts Myths or Rarities? A Response to On Lie Detection "Wizards" by Bond and Uysal, 31 L. & Human Behav. 117 (2007).
Be all this as it may, and notwithstanding the rather meager and uncertain state of the science in the field, some MHPs believe they have, or can develop, both the skills as well as the right to be making these kinds of assessments. See, e.g. Austin,Guidelines for Utilizing Collateral Sources, infra, note 52. (Of course judges and lawyers are no better at detecting deception. But that reality only serves to bolster the need for conscientious adherence to evidentiary rules and sound logic in applying them, rather than relying on "experts".)
[ANONYMOUS LISTSERVE QUERY]: "Anyone familiar with a book Credibility Assessment by Yuille and is it worth $231? It apparently is the basis of the assertion in the recent program brochure by ACFP: ‘a growing body of research indicates accuracy in evaluating truthfulness can significantly improve with training that combines knowledge and skills. Presenters will review the skills required to conduct such evaluations.’…" (Colorado doctorate-level MHP, March 11, 2007).
[ANONYMOUS LISTSERVE RESPONSE]: "If they have figured out how to tell if people are telling the truth I should think it would be worth more than $231 and these people would have been on Dateline!" (Vermont doctorate-level MHP, March 11, 2007).
[ANONYMOUS LISTSERVE RESPONSE]: " I’d love to see that research. The empirical information I’ve run across is not anywhere near so rosy on the ability train people to be better lie detectors. There’s lots you can do to make people *think* they are better lie detectors, but I don’t think that’s exactly what you’re going for…" (Texas doctorate-level MHP, March 11, 2007).
[ANONYMOUS LISTSERVE RESPONSE]: "Go to Google – here’s a site that has some of his former students… judge for your self http://www.ekmangrouptraining.com/index.html" (Florida doctorate-level MHP, March 11, 2007).
[ANONYMOUS LISTSERVE RESPONSE]: "Rosy? It is an evil pantload and totally scary. But ya gotta love the high end webpage. That is as corporate and glossy as it comes… The reason this is so awful and enraging is that it emboldens people to think they can actually tell if someone is being truthful. The irony is that truly innocent people are more at risk of failing such analysis or even giving false confessions because there is no possible way to distinguish anxiety, humiliation, umbrage, etc., from deciet. All this training does is produce investigators who are frequently wrong but never uncertain." (Tennessee doctorate-level MHP, March 11, 2007).
[ANONYMOUS LISTSERVE RESPONSE]: "This is not Reid and Associates material. There is a substantial body of research in this area that has produced positive results and has been published in peer reviewed journals such as Law and Human Behavior." (California doctorate-level MHP, March 11, 2007).
52. See generally, William G. Austin, Guidelines for Utilizing Collateral Sources of Information in Child Custody Evaluations, 40 Fam. Ct. Rev. 2, 177 (2002) (In this how-to-manual for custody evaluators, the author, a Colorado practitioner, describes his recommended techniques to assess the credibility of collateral sources, containing such rules of thumb to "clean up the data" as "…the credibility of collateral sources is proportional to the degree of nonalignment… with the primary parties." p.180. Therefore, we are to presume that grandma who sides with the litigant who is her child isn’t credible, whereas grandma who sides with her inlaw (and who may be a vicious liar with ulterior motives for doing so) is more credible; that the neighbor who lives across the street, has seen all of the family members interact for years, and thus has aligned with the spouse she believes to be the nicer (and more functional and deserving) parent is not very credible, whereas the neutral physician, who does the annual well-child checkup and has seen the child and perhaps one of the parents at a time on a handful of other occasions for five minutes a pop, is nonaligned and thus credible (albeit severely limited in what he knows outside of the child’s medical record); and finally, that the ostensible friend of the mother (or neutral GAL or neutral third grade teacher) who is having the undisclosed close friendship with the father, is credible because she appears for all intents and purposes to be opining in favor of a party she is not aligned with. The author repeatedly has encountered the latter sort of collateral witness in a number of cases. Custody evaluators missed these problems every single time, and plain old detective work uncovered the relationship.)
Interestingly, and whether right or wrong, MHPs do not seem willing to embrace common-sense assumptions under other circumstances which might directly facilitate appropriate custody decision-making. See Custody Evaluator Quotes, Speculation and Assumption When that Suits the Agenda, but Always a Posture of Requiring Hard (and Flawless) Research When it Doesn’t,
But cf, note 103, infra. (Direct evidence of a party’s credibility is not necessarily considered at all if the subject matter is determined by the MHP to be something not within the MHP’s expertise, or not about veracity in statements made directly to the MHP, or — arbitrarily — just not relevant in the MHP’s opinion to parenting.)
53. The MHP assessment of credibility problem is substantial. Not only is the MHP posturing as investigator and quasi-judge, but the MHP also is deciding what issues should be brought into the case, and what evidence should be sought and used in connection with those issues. Assessing credibility is the task of the trier of fact. State and federal laws strictly regulate this function. Consider, from Florida’s Evidence Code: "Character evidence; when admissible.– (1) CHARACTER EVIDENCE GENERALLY. — Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion…" Fla. Stat. 90.404 (2006).
Also see, on a related issue going to the litigant’s right of confrontation, Jeffrey S. Badgley, Using Medical Literature on Direct Examination to Win the "Battle of the Experts", 77 Fla. Bar J.. 5 (2003). (The article discusses Florida law relating to the use of medical literature during direct examination of the medical expert at trial.)
[ANONYMOUS LISTSERVE COMMENT: "The primary rationale for the psychologist nondisclosure privilege is to promote justice" (p. 100). "Court appointed independent evaluators, who protect the objectivity, fairness, and integrity of the testing process, perform a valuable truth-seeking function for the court" (p. 118). Seeking truth in courtrooms is a vital interest that outweighs the overly zealous need to discover information in a single case. Justice for all outweighs the needs of a single case." Handing test answers to test takers or their attorneys violates the court’s rational means of ascertaining the truth" (pp. 125-126)… Kaufmann, P. M. (2005). Protecting the objectivity, fairness, and integrity of neuropsychological evaluations in litigation. Journal of Legal Medicine, 26, 95-131." (Wisconsin doctorate-level MHP, March 3, 2007). ORWELLIAN, especially considering:
[ANONYMOUS LISTSERVE COMMENT]: "My rant is that if we’re going to force people to do this–to hire experts to review test data–and prevent them from due process, then we should not be using test data…the use of secret evidence went out in 1641 when parliament abolished the Star Chamber… well, except for the secret evidence used against enemy combatants in the… never mind… the "substantial harm or misuse or misrepresentation of the data or the test" mentioned in section 9.04 has the word "substantial"… what exactly does that mean… and does "substantial harm" outweigh a loss of due process?… honestly, I think this has more to do with test publishers than any concerns about "substantial harm"…" (Florida doctorate-level MHP, March 2, 2007).
[ANONYMOUS LISTSERVE FOLLOWUP]: "And… while I’m at it… I’ll add this… As many of you know, there are evaluator-type folks out there who have some "difficulties" with testing issues… I’ve come to know this through the amount of review work and consultation I’ve done over the years… some of those "difficulties" are absolutely scary… and sometimes, the "difficulties" are down right incompetence… or even worse… I’ve seen too many cases where the evaluator’s "difficulties" with testing issues are only brought to light after one side hires an expert to review the case… and the "difficulties" are on both sides of the case, not just on the side hiring the expert… and these "difficulties" drastically alter the picture the evaluator offered the Court… Evaluators should not be allowed to hide really crummy work behind section 9.04… as a bunch of appellate courts have said, "cross-examination is the greatest legal engine created to discover the truth"… On another note…can someone please given me a reality-based example of how a parent was "substantially harmed" by an attorney looking at test data?…" (same Florida doctorate-level MHP, March 2, 2007).
54. [ANONYMOUS LISTSERVE REQUEST]: "My apologies if this has been recently covered, but I am looking for some cites on how a parent’s depression (long-term major) effects the children. I searched the archives and came up empty – except for a post from ___ saying that there is research on depression and parenting." (Louisiana masters-level MHP, June 13, 2001).
[ANONYMOUS LISTSERVE COMMENT]: "…when I evaluate a family with children younger than 10 or so, I retain (and pass on the cost of) a child psychologist. While I know a great deal about child development, the affect of divorce on children, etc., I am not a child psychologist,,," (Wisconsin doctorate-level MHP, February 11, 2007).
55a. [ANONYMOUS LISTSERVE COMMENT]: "…nudity in a strict Southern Baptist home is different from in a nudist colony member’s home… infidelity is different in typical marriages but a standard practice in marriage where swinging is practiced…and "German Shepherds gone wild" becomes a different issue in a marriage where that type of stuff was practiced… The issues associated with parenting and stuff like that we can address… the morality issues associated with that, however, are stuff we don’t deal with…" (Florida doctorate-level MHP, July 19, 2005).
Compare the foregoing with: "For purposes of shared parental responsibility and primary residence, the best interests of the child shall include an evaluation of all factors affecting the welfare and interests of the child, including, but not limited to… The moral fitness of the parents." Fla. Stat. 61.13 (2006) [emphasis added]. If facts and judgment have been a nullity wherever the MHP has perceived an issue of "morality" how can any ultimate recommendation by the MHP ever comport with the statutory requirements? It cannot. What weight would have been accorded morality factors had they been included, and how might the addition of ignored factors have affected the mental decision-tree is unknown.
(And what is the MHP doing anyway, applying custody factors and making ultimate recommendations? This was supposed to be about expertise… not adjudication, i.e. applying the law to the facts. But I digress.)
The traditional police power of the state includes the sovereign power to regulate matters affecting the health, welfare, safety, and morals of the people. (On the general subject of the state’s inherent police power, from which its authority to render custody decisions is derived, see Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American Government, Columb. U. Press (2005), and for a summary and simple overview, see Ridgway K. Foley Jr., Police Power: Sovereignty’s Sledgehammer, 25 Freeman 11 (1975).)
The morality factor has another interesting aspect vis a vis MHPs’ reluctance to engage in this consideration. At times MHPs and courts will opine in essence that the "morality" merely describes a kind of subject matter (e.g. adultery, or lying) but unless there is something about that subject matter that "affects the welfare and interests of the child" the factor is not relevant. Research has made few direct and definitive connections, however, between particular custody subfactor attributes of parents and child wellbeing, which means that extrapolation and speculation is needed to move from one to the other. Therefore adultery — which arguably could cause the breakup of a family, indicates selfishness and disloyalty, and usually involves lying — typically is ignored as mere morality (and "we don’t go there."). But woe to the parent who lies or exaggerates to the MHP in the course of the evaluation — that kind of lying (to a perfect stranger to whom no duty of loyalty is owed) is not infrequently considered to be demonstrative of a lack of parenting capacity necessary to raise an honest citizen (as well as bad judgment). (And it pisses off the MHP, i.e. is taken personally.) On the other hand, using this same threshold rationale, popular "public policy" custody factors that have an even more tenuous link to any scientifically demonstrated childrearing outcomes, such as "friendly parent", readily ought to be discarded too by the MHP. They are not of course. And that is because of bias. This has nothing to do with science. (Or good logic.)
55b. Leonard Bickman, Practice Makes Perfect and Other Myths about Mental Health Services, 54 Am. Psych. 11, 13, (December 1999). Also see Leonard Bickman The Death of Treatment as Usual: An Excellent First Step on a Long Road 9 Clin. Psych. Sci. & Prac.195 (2002), and Ebling, Who Are the Marital Experts?, infra, note 81. Also see Raven C. Lidman and Betsy R. Hollingsworth, The Guardian ad Litem in Child Custody Cases: The Contours of Our Judicial System Stretched Beyond Recognition, 6 Geo. Mason L. Rev. 255, 276(1998).
56. The current American Psychological Association (APA) Guidelines for Child Custody Evaluations are available online athttp://www.apa.org/practice/childcustody.html The APA Guidelines are in the process of being revised as "Guidelines for Evaluating Parenting Responsibility, May 2007 draft is available at http://forms.apa.org/practice/gepr/GEPRforReview.pdf). [Comments are being solicited; see http://forms.apa.org/practice/gepr%5D
57. The Association of Family and Conciliation Courts (AFCC) Model Standards of Practice for Child Custody Evaluation are available online at http://www.afccnet.org/pdfs/Model%20Stds%20Child%20Custody%20Eval%20Sept%202006.pdf
58. The existence of widespread problems is acknowledged, but the problems are framed as involving incompetent or unethical — and educable — practitioners, not those arising because of a hopelessly incompetent process that is not suited to the job for which it is used. See, e.g., Mary Johanna McCurley et al., Protecting Children From Incompetent Forensic Evaluations and Expert Testimony, 19 Forensic Evaluations 277 (2005).
[ANONYMOUS LISTSERVE COMMENT]: "One big problem with the proposed standards is that there are too many of them and they are too detailed. How many of us (be honest) really do every one of these things in every eval we do? If these standards really do become the standard of care–as specifically intended–then we will have to or risk various sanctions and other negative consequences. Someone said the proposed standards would be a boon to bottomfeeders, but I don’t think so. They would be a boon to those (myself included) who do review work and give rebuttal testimony about how other professionals didn’t measure up to the standards. Until now, I have usually told retaining attorneys I’m better used as a confidential trial consultant than a rebuttal witness because the eval really wasn’t so bad. Armed in the future with these standards, I could probably shoot down almost every eval I review. Do we really want that?" (Missouri doctorate-level MHP, October 21, 2005).
[ANONYMOUS LISTSERVE RESPONSE]: "I won’t respond further on the issues re argument style; I think that there are differences in both priorities and goals here. Perhaps there are geographical differences invovled in these discussions as well, as I live in a state in which the legislature – which knows little or nothing about CCE and is in the grip of political advocates – has begun to "manage" CCE’s. Similar efforts are under way in other states, in different formats, but with the commonality of being highly politicized processes not run by people in the area. I think it is inevitable that we will be judged by some standard; the issue is who is going to set that standard. I’d much rather that this be influenced by AFCC than by the "angry Mom’s" or "angry Dad’s" clubs." (California doctorate-level MHP, October 24, 2005).
59. [ANONYMOUS LISTSERVE COMMENT]: "What I found I really hated was the actual writing in the beginning of the report (rough draft). I discovered that with another report in hand (for word accessibility only- I’m over forty) I could dictate the bare bones part and then the fine tuning was much easier since I didn’t have to stare at a blank page. Worked for me…" (California doctorate-level MHP, December 8, 2005).
[ANONYMOUS LISTSERVE QUERY]: "The reports that I have read that quote or cite research pick certain aspects of the research to quote – leave out other pertinent studies – fail to cite any studies for other, key issues in their reports. They are confusing to the lay reader and, at times, misleading. How do you cite the research w/o creating a monster of a report that still reads well?" (Doctorate-level MHP, February 20, 2006).
[ANONYMOUS LISTSERVE COMMENT]: "I dictate the body of the report over some period of time. After the report is transcribed I start the editing process. As I edit I begin to formulate impressions about the most important data in the case. I use these impressions to write a conclusion section that first tries to tell a story about the most important aspects of this family’s situation. Depending on the issue at hand I may also summarize findings that answer specific evaluation questions (eg. about nine main and other minor issues in relocation cases). As I am writing the conclusion I also look for weaknesses or omissions in my data collection. This may lead to brief follow-up interviews as necessary (these are usually done by phone but can be done in person depending on the issue). Depending on the case I may also summarize findings that I believe support different parenting plans (eg. equal custody, shared custody, primary to mother, primary to father, shared legal, sole legal). Then I write a summary paragraph of the most important findings. In short, I view my report as a kind of funnel or condenser of the most important data." (California doctorate-level MHP, February 20, 2006).
60. [ANONYMOUS LISTSERVE QUERY]: "I am the treating psychologist for a child and the parents and have been subpoenaed to testify. Initially I thought I would be a percepient witness not an expert. However in reviewing the the following (below), it seems to me it says I can charge my expert fees if asked to give my opinion. Am I understanding this correctly? The subpoena came without tender of fee or mention of fee. Do I need to ask the atty…" (California doctorate-level MHP, December 31, 2004).
[ANONYMOUS LISTSERVE RESPONSE]: "If you end up testifying, you should be paid for your time as an expert witness (you’re an expert if you offer any professional opinions about your patient). Prior to testimony, you should be clear with everyone about the limits of your possible testimony. Since you have not conducted a comprehensive forensic evaluation you must not offer opinions about what the court should do re: parenting time, custody, etc. You may competently testify about the child’s clinical status…" (Michigan doctorate-level MHP, January 1, 2005).
[ANONYMOUS LISTSERVE ADVICE]: "In a strict sense I would agree with ___’s philosophy of restricting your answer to the question that is being asked of you, or stating you are unable to answer the question per se, or in the form asked. Certainly one can say, ‘I cannot answer that with a yes or no, but I can explain my answer to your question.’ " (California doctorate-level MHP, February 12, 2007).
Also see, e.g., James N. Butcher, Preparing for Court Testimony Based on the MMPI-2 Guide, 2nd Edition, available on-line at http://www1.umn.edu/mmpi/documents/courttestimony.pdf
61. [ANONYMOUS LISTSERVE COMMENT]: "In these case, individual psychopathology appears to be minimized in order to avoid provoking a complaint that is supported by various litigious political groups (e.g., the False Memory Syndrome Foundation; Battered Women’s advocates; perhaps others I’m not thinking of now) . Some of my colleagues – mhps and lawyers – are bemoaning the difficulty of getting strong expert opinions to the courts when experts live in fear of frivolous complaints and misuse of the complaint process supported by such groups… I have seen these factors at work in two kinds of situations. One, where weaker recommendations are seen as a necessary risk management strategy; the other where "complaint anxiety" covertly biases data interpretation." (New Jersey doctorate-level MHP, March 21, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "…the over the top reaction by the stepparent to the point of making a "threat". I believe there’s a lot of huffing and puffing but I also believe a Bd complaint is a possiblity… I don’t want the case to be thrown out because I’m accused of bias. That’s why I ask if there is something I need to do. If mums the word so be it. If there is something I need to do to keep the case "kosher" please let me know…" (California doctorate-level MHP, April 10, 2005).
62. [ANONYMOUS LISTSERVE REQUEST]: "I would very much appreciate it if any of you would forward on to me any strong references (including studies) about custody plans per age and stage of development of the child." (Louisiana masters-level MHP, June 15, 2001).
[ANONYMOUS LISTSERVE RESPONSE]: "Funny you should bring this up! Joan Kelly is putting a one-day presentation on 6/27 titled "Devloping Effctive Parenting Plans Using Child Devlopment & Divorc Research" here in the S.F. Bay Area…" (California doctorate-level MHP, June 15, 2001).
[ANONYMOUS LISTSERVE COMMENT]: "Joan Kelly, PhD will be doing a half-day training in Santa Fe, NM titled, "Using Child Development Research to Develop Age-Appropriate Custody and Visiting Arrangements," Friday, February 28…" (New Mexico doctorate-level MHP, January 20, 2003).
[ANONYMOUS LISTSERVE REQUEST]: "Kelly, J. B. (1982). "Divorce: The Adult Experience." In B. Wolman & G. Stricker (Eds.), Handbook of Developmental Psychology. New York: Prentice-Hall. I need the page numbers for the chapter…" (Minnesota masters-level MHP, January 26, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "Joan Kelly has made the point (in her 2000 article as well as at afcc-cal) – that…" (California doctorate-level MHP, February 27, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "Read the article by Lamb and Kelly (1998) and the response by Solomon and the response back by Lamb & Kelly. If will give you a good over view of the Research… To ensure the continuity of each parent’s relationship with his/her child and the child’s security and comfort when parents live in separate homes, as noted by researchers Lamb and Kelly (1998), the parenting schedules created for children younger than 2 or 3 years old should involve more transitions, rather than fewer… The concept of location-engendered stability (i.e., one home, one bed), typically, has been over-emphasized for infants and toddlers…" (Florida doctorate-level MHP, May 27, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "According to Kelly’s data that she presented in Sonoma, most of the violence in separating couples is common couple violence, not true battering. Most of them will, as you state, end up with some form of custody, but they aren’t necessarily batterers…" (California doctorate-level MHP, November 20, 2005)
[ANONYMOUS LISTSERVE QUESTION]: "…what is the current thinking with regard to overnights for very young children? Articles by Kelly and Lamb (2000), Warshak (2000), and Solomon and Biringen (2001), as summarized by Marsha Pruett in FCR Essays on Overnights and Young Children indicate that there is a divided opinion as to the benefit of the "more transitions, more shared time" approach v. critical nature of a child’s secure attachment to a primary caretaker approach." (ILlinois doctorate-level MHP, April 11, 2006).
[ANONYMOUS LISTSERVE COMMENT]: I do agree that Johnston and Kelly’s article is ‘the’ article to utilize when testifying and/or attempting to describe the issue in one’s report…" (Oklahoma doctorate-level MHP, August 9, 2006).
[ANONYMOUS LISTSERVE COMMENT]: "Just wanted to give an update, for those of you who either weren’t at the recent AFCC-CA conference (or whom I didn’t talk to about this at the conference!). Well, after talking to a few participants (including ___, ___ and ___) as well as to Joan Kelly and Jan Johnston…" (California doctorate-level MHP, February 13, 2007).
There are more examples in Custody Evaluator Quotes
63. [ANONYMOUS LISTSERVE QUERY]: "A client would like to read some material on appropriate custodial time sharing options as affected by the child’s age. Suggestions?" (California doctorate-level MHP, February 15, 2007).
[ANONYMOUS LISTSERVE RESPONSE]: "How about the Arizona Model Parenting Time Plans available at: http://www.afccnet.org/pdfs/Arizonaparentingplan.pdf " (Nevada doctorate-level MHP, February 15, 2007). (AFCC, yet again…)
[ANONYMOUS LISTSERVE RESPONSE]: "Also good is "Planning for Shared Parenting: A Guide for Parents Living Apart," published by the MA chapter of AFCC." (Missouri doctorate-level MHP, February 15, 2007).
To the extent there is a lack of basis for expert opinion — essentially, with regard to all of the MHP’s opinions that amount to little more than the informal collection over time of arbitrary colleague consensus, i.e. the culture and mythology of the profession — the MHP’s testimony should be barred from the courtroom. It now would be in Florida if such "data and facts relied on" were to be brought out on direct examination in court. See generally, Linn v. Fossum, 894 So. 2d 974 (Fla. 1st DCA 2004), rev. 31 Fla. L. Weekly S741 (Fla. Nov. 2, 2006). The Florida Supreme Court stated "We therefore hold as a matter of law that under the Florida Evidence Code an expert is not permitted to testify on direct examination that the expert relied on consultations with colleagues or other experts in reaching his or her opinion."
64. For example, the MHP community’s general accession to political rhetoric such as a child’s "need for two parents" or the custody factor the friendly parent doctrine, neither of which are grounded in any kind of science of the sort in which the MHP is supposed to be "expert" in opining in court on what is in the best interests of "this child." No "expertise" is required here, and any judge is equally — and easily arguably more — capable of applying law, public policy, political ideology, or even his own unscientific personal preferences to the facts and evidence of a case.
65a. [ANONYMOUS LISTSERVE INQUIRY]: "What I am asking is: what do you, the evaluator do, if your conclusion is that the evaluee is dangerous? This question is not a debate as to the validity of the findings. It’s about what you guys do in the real world when you are very concerned about the safety of others. Has anyone felt they had a duty to warn?" (Alabama doctorate-level MHP, January 23, 2007.)
65b. [ANONYMOUS LISTSERVE COMMENT]: "I don’t want anybody telling me what specific language to put in my reports. First, it was managed care flyspecking our every clerical move. Now it’s our own professional groups?" (Michigan doctorate-level MHP, October 21, 2005).
66a. [ANONYMOUS LISTSERVE REQUEST]: "I received this from Mr. __ and wondered if anyone on the listserv was able to direct me to someone in Missisippi who might be able to look into his case. He is correct, I get many a day – but this was somehow more compelling…" (Massachusetts doctorate-level MHP, January 9, 2005). [An entire lengthy email, written to this PAS-proponent MHP, complete with identification of the litigant father and other family members, as well as the gory details of his case were posted to the listserve. The MHP was criticized on the list for the indiscretion, but noted that referrals went out to Doug Darnall, Richard Warshak, and other PAS-finding specialists. So much for "confidentiality".]
66b. For a typical example of what is meant by "soft" (and I do not mean to pick specifically on Pickar, but his article happens to be handy), see Pickar, On Being a Child Custody Evaluator, supra, note 13a, who writes:
"While there has been an increasing number of published articles and books on ethical and scientific approaches to conducting child custody evaluations (Kuehnle, Greenberg, & Gottlieb, 2004; Martindale & Gould, 2004; Medoff, 2003)…"
And the articles say… what? The sentence contains many references but actually says nothing. Including irrelevant references is a way to lend the appearance that the opinions of the author that follow are based on them. This kind of thing is more common than not in the prolific psych practitioner publication world. Another:
"Many other serious issues which affect the health, welfare, and safety of children frequently arise in conducting CCEs, requiring the MHP to have specialized knowledge in the areas of child sexual abuse (Hewitt, 1999; Kuehnle, 1996), domestic violence (Bow & Boxer, 2003; Johnston & Roseby, 1997), child or parental alienation (Gardner, 1992; Kelly & Johnston, 2001), and substance abuse (Schleuderer & Campagna, 2004)…"
That "serious issues" might arise in a child custody case is not news, and it goes without saying that if an MHP is posturing as an expert in the matter, then he really ought to be one. The sentence appears to have been included mostly to pad the "bibliography of resources" that commonly is appended to these kinds of psych literature articles. It’s filler, neither opinion, nor analysis, nor discussion, and of the sort that would be criticized if placed in an undergraduate term paper. And another, this one, ironically, giving the horrible anti-scientific advice to just follow along with the group think that permeates the cross-pollinating literature, just accept secondary opinions in yet other literature doing the same kind of thing:
"Finally, rely on the wisdom of others. There is a rapidly emerging research base regarding children’s adjustment to divorce (Hetherington & Kelly, 2002; Kelly & Emery, 2003) and developmentally appropriate parenting plans (Bauserman, 2002; Kelly & Lamb, 2000; Pruett, Ebling, & Insabella, 2004) which can assist the evaluator in formulating appropriate custody recommendations."
A "rapidly emerging research base" saying what? Is it coming to a consensus on anything? Within the lists of citations are similar crap, e.g. Richard Gardner, e.g. the Kelly & Lamb article, among others, as well as the very flawed Bauserman meta-analysis. These kinds of "peer-reviewed" papers are not research, not scholarship, and not credential for any posture of expertise. This is what is passing for "science."
67. Supra, note 1.
68. _____________. An entire internet blog has been devoted to the subjects of cronyism and churning in the court system. See"Overlawyered" at http://www.overlawyered.com/family_law/. Also see Carole Bell Ford, The Women of CourtWatch: Reforming a Corrupt Family Court System, U.Tex. Press (2005).
70. See generally, for discussions of this issue, Bruch, Sound Research, infra, note 3; William T. O’Donohue and A. R. Bradley,Conceptual and empirical issues in child custody evaluations. 6 Clin. Psych. Sci. & Prac. 310; Scott O. Lilienfeld, Pseudoscience in contemporary clinical psychology: What it is and what we can do about it. 51 Clin. Psych. 3 (1998). Also see Lynn Smith, "Putting a Spin on the Truth With Statistics and Studies" Los Angeles Times, June 6, 2001 ("Values, morality and religion fuel most debates about social issues, but people are more comfortable discussing numbers, researchers said. "Because of the supposed separation of church and state, we have a system that subscribes to an ideology of objectivity," said Judith Stacey, a USC sociology professor. "We’re not supposed to argue from religion [or] from our personal values and impose it on others."). Also see S. O. Lilienfeld, et al., The scientific status of projective techniques, 1 Psych. Sci. Pub. Int. 27 (2000).
71. No research exists which shows that custody recommendations made by MHPs result in better child outcomes. See Shuman,What Should We Permit Mental Health Professionals to Say About "The Best Interests of the Child"?, infra, note 129.
And see generally, Peter Ash, et al., Relitigation after contested custody and visitation evaluations, 14 Bull. Am. Acad. Psych. & L. 323 (1986), and Janet R. Johnston, Developing and testing group interventions for families at impasse. Final Report submitted to the Statewide Office of Family Court Services, Administrative Office of the Courts, Judicial Council of the State of California, San Francisco (1999). Studies indicate that parents who are subjected to the forced and artificial arrangement of their families by third party evaluators have two to two and a half times the rate of relitigation of parents who do not undergo the custody evaluation process. The direction of "causation" is unclear — more litigious parties may skew the group of those who end up with third party evaluators — but what is fairly clear is that the most benign characterization of the findings is that the MHPs aren’t helping cut down on the relitigation rate.
While a number of researchers purport to have found relitigation rates lower following mediated decisions, or (primarily in early studies) in joint custody arrangements, not one of these studies appears to have corrected for (in the first case) the reality that negotiated agreements are not as legally amenable to modification as court orders, or (in both cases) that couples who achieved accord in mediation, as well as those who voluntarily chose early joint custody arrangements were already relatively more amicable couples. An example of an "earlier" study would be the master’s-level research often cited in father’s rights papers, Shanon J. Alexander, Protecting the Child’s Rights in Custody Cases, F.S.U. Fam. Coordinator (October 1977) ("better results for joint custody than sole custody… relitigation rate for joint custody was half that for sole custody (16% vs. 32%).")
72.The reason for this has been decades of MHP lobbying and propagandizing to the legislatures and legal community.
[ANONYMOUS LISTSERVE CALL TO ARMS]: "There is a new bill in the California state legislature which will be of some interest and concern to all of us who do custody evaluations, especially California psychologists. The bill prohibits the use of psychological testing in custody evaluations unless the court grants "a motion for a mental or psychological examination of a parent only for good cause shown…" (California doctorate-level MHP, February 23, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "…The legislator is sponsoring this bill on behalf of women’s rights groups, who think that parental alienation is diagnosed too frequently through the use of psychological testing…" (California doctorate-level MHP, February 23, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "This bill appears to prohibit considerably more than psych testing… "Controversial, nonscientific labels, such as parental alienation syndrome, parental alienation, or alienated child, are specifically excluded as allowable diagnoses and for court use." (California doctorate-level MHP, February 23, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "I am responding from a strategic and tactical point of view. In addition to being a forensic psychologist, doing CCE, I am also legislative chair of the Florida Psychological Association. In my experience…" (Florida doctorate-level MHP, February 23, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "I’ll go ahead and forward this to her if that’s ok with you. the annual Legislative and Advocacy day is coming up mid-March, altho I’m guessing they’ve already selected the legislation they want psychologists to discuss with legislators… do you know how far along this bill is in the legislative process… I think CPA’s stand in general is to strongly oppose any bill that limits psychologists’ scope of practice…" (California doctorate-level MHP, February 23, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "Perhaps a letter from those of us who write and teach about use of psychological tests in CCEs might be useful?…" (North Carolina doctorate-level MHP, February 23, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "I agree also and think a letter from professionals that know testing is a great idea. It seems that if the legislature wants to "do something" perhaps advocating for required continuing education of so many hours in order to allow people to use the tests…" (Kansas doctorate-level MHP, February 23, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "I also agree that letters might be useful. however, impacting the legislature must be a coordinated act… Contact the folks in California who are opposing this bill and find out their strategy… aren’t there folks on this list active in AFCC, Caflifornai AFCC or the Calif Psych Association and if so, can y’all tell us if your orgs are getting active in this thing… or know about it and what their strategy might be. Please remember that while we might bring science to the table the real change agent has to be poltical science…" (Florida doctorate-level MHP, February 25, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "…you’re absolutely right about this being ‘political science’; from what Larry said, this bill may have only recently been introduced…which means it has a long way to go before any final vote. I’m a chapter rep to CPA Board and I’ll be forwarding the info to the folks up there who review bills…" (California doctorate-level MHP, February 25, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "Perhaps our CA mandatory annual 4-hr DV training requirement would best be divided with at least half the time devoted to the use of psych tests in CCE’s…" (California doctorate-level MHP, February 25, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "My bet is that folks went through that these folks were psych tested And also the issue of alienation was raised. That an organized group advocated for legisltation and the bill was introduced. Thus far, in aniticpation of just this session of the legislature, I have reviewed over 1000 bills being introduced into the Florida…" (Florida doctorate-level MHP, February 25, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "…this bill is about considerably more than testing. If we focus only on testing in our response and ignore the rest of the bill, we will be handing a massive victory to those promoting it. PART of their agenda may be about testing, but if it were ALL, or even mostly, about testing, they would not have changed the term "evaluator" to "investigator," nor prohibited the other aspects of a "psychological examination"…" (California doctorate-level MHP, February 25, 2007)…
73. Cf, Zeng-yin Chen & Howard B. Kaplan, Intergenerational Transmission of Constructive Parenting 63 J Marriage & Fam. 17 (2001) ("Numerous research has documented the intergenerational continuity of parenting, demonstrating that present-day parents tend to use similar parenting strategies or practices that they themselves received in their childhood (see reviews by Putallaz et al., 1998, and van Ijzendoorn, 1992). A noticeable trend from this literature was its predominant attention to the intergenerational continuity of abusive or harsh parenting. Belsky (1984) pointed out that it was research inquiry into dysfunctional parenting, specifically, research on child abuse, that shed light on the intergenerational transmission of parenting for the general population." p.17). The article contains an extensive bibliography of other research in accord.
Also see, re "relationship between married individuals’ experiences in their family of origin and patterns of marital adjustment", Ronald M. Sabatelli & Suzanne Bartle-Haring, Family-of-Origin Experiences and Adjustment in Married Couples, 65 J. Marriage & Fam. 159 (2003).
Also see, re grandparent and extended family relationships, Margaret M. Mueller & Glen H. Elder Jr., Family Contingencies Across the Generations: Grandparent-Grandchild Relationships in Holistic Perspective, 65 J. Marriage & Fam. 404 (2003) ("Family relationships do not occur in isolation but rather are embedded within greater systems of family ties…We find multiple dimensions of grandparents’ involvement with their grandchildren to be associated with (a) whether the grandparents knew their own grandparents when they were young, (b) the grandparent’s perceptions of contact and closeness with the target grandchild, and (c) nuances in the relationships of grandparents with the parent generation.")
For a discussion of how personal values play out in practice, see Marc J. Ackerman & Melissa C. Ackerman, Child custody evaluation practices: A 1996 survey of psychologists, 30 Fam. L.Q. 565 (1996). The authors surveyed 201 custody evaluators from 39 different states, finding that while there was a lack of appreciation among the evaluators for domestic violence, much decision-making weight was given to the theory of "parental alienation".
74a. Jay Ziskin & David Faust, Coping With Psychiatric and Psychological Testimony, L. & Psych. Press, (1970, 1988, supplemented 1997 and 2000). "It is the aim of this book to demonstrate that despite the ever increasing utilization of psychiatric and psychological evidence in the legal process such evidence frequently does not meet reasonable criteria of admissibility and should not be admitted in a court of law, and if admitted, should be given little or no weight."
74b. Merck is a pharmaceutical company. Its diagnostic scheme was implemented for the dual purpose of inventing or defining nonmedical "diseases" that require treatment (drugs), and to qualify psychiatrists and later, psychologists, to receive medical insurance payments for treating non-medical issues.
77. [ANONYMOUS LISTSERVE COMMENT]: "I never have done home visits which confirmed what I already knew. Usually I did them to check out some concerns/allegations and to collect information that would not be available through other means (for example, when there would be no testing done or light could not be shed on a particular issue other than by checking out the home environment). I am not sure what you mean by how I control for threats to validity in terms of conducting a home visit versus having someone come to my office for interviews. I follow standard procedures in either case which are explained in advance to the parties and followed as consistently as possible with both parties." (Doctorate-level MHP, July 27, 2005).
[ANONYMOUS LISTSERVE QUERY]: "The father in one of my custody evaluations is a regular viewer of adult porn online. The mother claims that he is addicted… He claims that his daughter has no knowledge of his porn habit, and that he does not do it during their visits. He is seeking more visitation time, including overnights… looking for references to find out if there is any research on pornography use, vis a vis custody…There are some other allegations that the mother makes about the father, and vice versa, but these are typical he-said/she-said things…" (Doctorate-level MHP, July 19, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "I like to do home visits from after school to after dinner. Generally this time period shows a wide range of behaviors in the household… I spend most of my time on a home visit with the child(ren). The kids generally love to show off their room, their toys, their home, their friends, etc. I have never found the kids to constricted when I show up to their home in my jeans and sneakers, ready to follow their lead…" (New Jersey masters-level MHP, February 8, 2005).
78. Supra, note 48.
79. The medical community appears to recognize this reality to an extent simply not seen among the MHP community. See e.g., the research by Glascoe and others: Frances P. Glascoe, Parents’ concerns about children’s development: prescreening technique or screening test? 99 Pediatrics 522 (1997) (" If systematically elicited, parents’ concerns approach standards for screening tests and can be used to make reasonably accurate referral decisions."); Frances P. Glascoe & Paul H. Dworkin, The role of parents in the detection of developmental and behavioral problems, 95 Pediatrics 829 (1995); Frances P. Glascoe, It’s not what it seems: the relationship between parents’ concerns and children with global delays, 33 Clin. Pediatrics 292 (1994); Frances P.Glascoe, et al., The importance of parents’ concerns about their child’s behavior. 30 Clin. Pediatrics 8 (1991).
80a. [ANONYMOUS LISTSERVE COMMENT]: "Unless we can recognize whether it is conflict or abuse that has shaped the family prior to the divorce, the interventions that we make will not be effective. Hence, evaluators and courts need to set aside their assumptions that all cases before them are simply of warring parents – those that use their children to get at the other parent. Some cases may be this and more, that is, some cases may not just be one of conflict. Some may be cases of abuse…" (California doctorate-level MHP, March 19, 2005, citing to literature that struggles to distinguish between conflict-initiated violence and abusive violence.)
80b. [ANONYMOUS LISTSERVE COMMENT]: "When two plausibly sincere parents describe radically different families, we hear the Twilight Zone music playing in the background. They each present their strengths and the other’s deficits relative to their vested sense of what the developmental and emotional needs of the children are. Judges are stumped." (Tennessee doctorate-level MHP, November 17, 2005).
[ANONYMOUS LISTSERVE RESPONSE]: "In nearly all kinds of law, opposing litigants postulate two radically different points of view. Judges make decisions. They do not get stumped. We have hundreds of years of decision-making guidelines, precedent, substantive law, procedural law to prevent this and to assure the highest possible chance of the correct decisions, from who carries burdens of proof, to certain kinds of presumptions, to how much evidence carries the burden of proof, along with appellate courts to review these." (liz, November 17, 2005).
81. [ANONYMOUS LISTSERVE COMMENT]: "When a court refers a case to me they are essentially asking for my OPINION. If I have an opinion that I think is derived from the application of my readings, experiences and training about a particular case I will express that OPINION. What the court chooses to listen to is, of course, up to the court." (New York doctorate-level MHP, February 11, 2005).
[ANONYMOUS LISTSERVE RESPONSE]: "I respectfully disagree with your understanding of what it is that court seeks from you. In my opinion, the court is not seeking your opinion; rather, the court is seeking your EXPERT opinion. [Martindale has written that the] defining attributes of an expert opinion relate not to the credentials held by the individual whose fingers type the words or from whose mouth the words flow; rather, the requisite characteristics relate to the procedures that were employed in formulating the opinion and the body of knowledge that forms the foundation upon which those procedures were developed. If the accumulated knowledge of the expert’s field was not utilized, the opinion expressed is not an expert opinion. It is a personal opinion, albeit one being expressed by an expert.’" (New Jersey doctorate-level MHP, February 11, 2005).
Cf, Rachel Ebling & Robert W. Levenson, Who Are the Marital Experts? 65 J. Marriage & Fam. 130 (2003). (Newly married and newly divorced individuals for whom marriage held strong positive or negative meanings were more accurate than professionals — counselors, clinical psychology graduate students, marital therapists, and marital researchers — in assessing the quality of others’ relationships. "Neither professional training nor personal experience was associated with the ability to predict divorce.")
82. [ANONYMOUS LISTSERVE COMMENT]: "CCEs seem to necessitate the following questions: (1) what are the parenting capacities of the competing parties? (2) what are the needs of the children? (3) what parenting arrangement amounts to the best fit between the available parenting capacities and the needs of the children?" (Michigan doctorate-level MHP, February 10, 2005). [ANONYMOUS LISTSERVE RESPONSE]: "It seems to me that capacity, needs, and fit leave a lot of room for making up our own subjective definitions or for expressing our idiosyncratic theoretical beliefs (all of which can have profound effects on peoples lives). To what in our specialized knowledge base do we refer for a consensually agreed-upon definition of these things and, if such does not exist, should our opinions be admissible about preferred custody plans?" (New York doctorate-level MHP, February 11, 2005).
83. Leslie Eaton, For Arbiters in Custody Battles, Wide Power and Little Scrutiny, N.Y.Times (May 23, 2004), available online at http://www.nytimes.com/.
84. See generally, Dore, Argument for Abolition, supra, note 3. Dore has described the intermediary GAL, parenting coordinator, and evaluator essentially as a "filter" standing between the evidence (and often the truth) and the trier of fact. The MHP gathers evidence, including indiscriminately, and including unreliable and irrelevant evidence, as well as evidence going to issues that were not even raised by the parties, filters it through the lens of the MHP’s own biases, agendas, and mistakes, then feeds a processed mix of inextricably entwined fact, pseudo-fact, expert opinion, and personal opinion along with a dash of assumptions and values to the court, coupled with a recommendation to the court about what the court ought to think, find, determine, and order. And that unwholesome picture doesn’t take into account refusal to disclose underlying data and the basis for opinions, distorted and illogical thinking, or outright occasional malfeasance. Finally, in order for the parties (those at least who are represented by competent counsel) to cross-examine and refute the many problems that may underly the MHP’s own little mini-proceeding that is within the larger litigation (in which the MHP is investigator, interrogator, judge and jury rolled into one), itself requires what is in effect a subsidiary or ancillary "trial within a trial", often itself necessitating the involvement of additional counter-experts and reviewing experts, which hardly could be said to "simplify" anything for the court or the litigants. One has to ask: how has the judiciary become so incredibly snowed?
85. [ANONYMOUS LISTSERVE QUERY]: "I am beginning a new project and I am interested in knowing what factors each of you believes are important/relevant to assess in CCEs. Part one of my new project is to look at parent and parenting factors. So, I am interested in what specific factors you believe are important to assess and how you assess each parent and/or parenting factor." (North Carolina doctorate-level MHP, February 23, 2005).
[ANONYMOUS LISTSERVE RESPONSE]: "What I assess depends somewhat on the case information. Of course ruling out major dysfunction goes without saying. We probably all assess mental status like we breathe. Sometimes I assess things that I assess because I have the tools to assess them. Sometimes I don’t assess things I would like to assess because I don’t have the tools. A mind-reading machine would be nice for instance. Maybe we should think about having parents wear a parent cam for a few days to get a more representative sample of parenting behavior…" (Texas doctorate-level MHP, February 25, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "I’m in the same boat as DeClue (2002) in that I’ve not found anything that’s empirically validated on effective parenting behaviors. There’s lots of theory, but little facts…" (Texas doctorate-level MHP, Febryart 26, 2005).
[ANONYMOUS LISTSERVE QUERY]: "I have a question as to what factors an evaluator can consider, or not consider. I know there is broad lattitude. Most states list best interests factors to consider. Also, usually a phrase is included such as "and any other relevant factors." My question really concerns this – can an evaluator consider/measure a factor that appears relevant, but case law prohibits the judge from considering?" (Colorado doctorate-level MHP, June 10, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "…clearly both the current AFCC model standards… cover obtaining information from outside sources… is obtaining police records… evaluating or investigating?… what’s wrong with psychologists (or any other MH professional) doing checks of available records… I hearken back to a comment months ago from ___ about hesitation to look in a parent’s refrigerator at a home visit… My rule is do a complete and thorough evaluation…" (Texas doctorate-level MHP, January 23, 2006).
[ANONYMOUS LISTSERVE QUESTION]: "I faxed both attorney’s about this request and simply stated that it is not my responsibility to ask any parent to sign a release for their own medical records because the other parent/attorney feels I should see it… the court order pertains to situations in which I DESIRE data but in this situation I AM NOT asking for the father’s medical records you and your client are, therefore it is not my responsibility,etc… Ok!, why am I hesitating in just asking the father to sign a release form because his ex-wife feels there is important data to be seen in the records…" (Oklahoma doctorate-level MHP, January 23, 2006).
86. [ANONYMOUS LISTSERVE COMMENT]: "I want to state up front that I’m in the description-of-behavior camp and avoiding-the-misuse-of-power-laden-labels, such as "syndrome," camp. Certainly, it can be made to look like we have discovered an identifiable-disease-pattern that is misrepresented with imbued scientific power, in part due to biased and limited samples. But where is the line drawn? It is also true that ‘integration’ of any relevant material is necessary when drawing conclusions or formulating recommendations… For example: Your honor, father’s personality profile, comments from collaterals, and parent/child observations all point to a rigid inflexible pattern of behavior, as compared to mother, that the relevant literature refers to as authoritarian. True, we do not say that father suffers from authoritarian syndrome, but that is the weight of what we are saying…" (Pennsylvania doctorate-level MHP, January 29, 2005).
[ANONYMOUS LISTSERVE QUESTION]: "Dr. Who notices that among the findings of fact issued by the Court is a statement that is inaccurate, very damning of one of the parties… realizes that the only possible source for this error is a document written by him. The contents of the document became known to the Court when counsel for one of the parties misguidedly asked Dr. Who to read aloud the document during cross-examination… Does Dr. Who owe a duty to somehow right this wrong? …it appeared that the mistake may have affected the Court’s decision… Dr. Who has heard nothing further of the matter… Clearly, the "wronged" party’s attorney in Dr. Who’s case dropped the ball somehow. Is this scenario that unusual? If the court mischaracterizes an evaluator’s opinions or recommendations to the degree that clearly erroneous findings of fact are issued and the attorneys take no action, can/should the evaluator take it upon him or herself to do something? If so, what?" (Indiana doctorate-level MHP, November 22, 2006).
Also see infra, note 106a.
87. [ANONYMOUS LISTSERVE COMMENT (with which there was virtually complete consensus by others who opined): "Is this a trick question? It seems very clear to me that if the kid enjoys band, and if attendance at band practice is a requirement of being in the band, then OBVIOUSLY any visitation should work around that, as opposed to the band practice working around the visitation." (California doctorate-level MHP, January 30, 2005).
88. While the Federal Rules of Evidence do not control state law child custody disputes, most states have enacted similar evidentiary rules, and the Federal Rules nevertheless are instructive as far as the theory of expert opining in the courtroom. SeeFed. R. Evid. 702: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." From the notes of the advisory committee to the Federal Rules:
"There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952). When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time. 7 Wigmore § 1918.
89. [ANONYMOUS LISTSERVE COMMENT]: "Wow. I just read ALL of the posts on parenting capacity instruments and the derivative posts into psychometrics and admissibility. Sheesh. All I wanted to know was what the questions were and what were the "right" answers. I do not want to have to buy all that stuff. And I do not know anyone who does custody evaluations. Except Gerry Koocher. Who maybe perhpas possibly might not want to lend me his tests. Now where was that Web site…" (Massachusetts doctorate-level MHP professor, April 6, 2002).
91. [ANONYMOUS LISTSERVE COMMENT]: "There will never be unanimity on this list about what direction the sun comes up in the morning! But the STRONG majority of us favors the "scientifically crafted" approach of Brother Jon’s book and hold little regard for the Bricklin instruments. They will not withstand a Daubert challenge and thus have no probative value and thus are USELESS in a CCE." (California doctorate-level MHP, January 13, 2005).
[ANONYMOUS LISTSERVE RESPONSE]: "…Despite their limitations, the Bricklin instruments at least have some empirical support… This will make me real unpopular on this "scientific" list but it still must be said: Beyond the MMPI-2 and MAYBE the MCMI-III there is no test or other procedure we use in custody evaluations which would pass scrutiny of a ‘fundamentalist’ academic psychologist (say, for example Lillienfield) and enjoy truly general acceptance in the broad field of Psychology. I say we should aspire to be scientific, and support efforts to improve the empirical foundations of our work, but avoid scientism at all costs. Intemperate and unjustified sweeping negative opinions such as ___’s risk harm to our field and to the children and courts we are trying (very imperfectly) to help." (Doctorate-level MHP, January 13, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "I believe that IF evaluators refer to "the research" they should provide citations within the body of their reports and full references at the conclusion of their reports. In this way, those who wish to investigate the accuracy of the evaluators’ summaries of what "the research" says can start by going to the cited research. A check on the cited research, in turn, often leads the inquisitive reader to research that has yielded conflicting data." (New Jersey doctorate-level MHP, December 18, 2005).
92. Like the notion that most of the time, babies and little children are happier and do better when they are cared for by their mothers. "This study investigated the impact of the abolition of the tender years doctrine on custody decisions in divorce cases. This doctrine supported the presumption that the mother is the more suitable parent for young children. In March of 1981, the Supreme Court of the State of Alabama found this doctrine to be unconstitutional. To assess the hypothesis that this ruling had a significant effect on custody related decisions, a sample of court records for divorce cases in an Alabama county was examined as representative of the state on a number of key variables. Overall, no significant differences were found on indicator variables for the comparisons before and after the ruling. There was neither an increase in custody grants to fathers nor an increase in custody requests by fathers." Laura E. Santilli & Michael C. Roberts, Custody decisions in Alabama before and after the abolition of the tender years doctrine, 14 L. & Human Behav. 2 (1990) [emphasis added].
93. Compare these circumstances in which extrapolation and common sense might be okay, even though research on point may not not exist:
[ANONYMOUS LISTSERVE COMMENT]: "…Even though empirical data are not at our fingertips (and we, as experts, should, therefore be very cautious), it seems inconceivable to me that a jurist would not be able to conclude that children benefit when they are able to spend leisure time with their parents and that harm can come to the relationship between children and the do-your-homework parent if that parent’s time with the children is spent in non-leisure activities and the other parent’s time with the children is spent in leisure activities. An expert might be able to apply psychology’s knowledge base to the explanation of the foregoing conclusion, but cold, hard data will not be found." (Doctorate-level MHP, November 7, 2006).
with these circumstances in which the same MHP apparently feels that extrapolation and common sense are not okay, even though research on point might exist, because the research likely is flawed:
[ANONYMOUS LISTSERVE COMMENT]: "…I would be quite distrustful of any research that one might find. Fathers who are turned on by pornography depicting father-daughter sexual interactions are not likely to say so (even to a researcher). Thus, the only ones likely to be subjects in such research will be the ones who have been detected, charged, and convicted. A disproportionate number of those whose viewing of such pornography was detected will be molesters.." (the same Doctorate-level MHP, August 19. 2006).
(Why could a jurist — or MHP — not similarly reasonably conclude, using common sense, that it’s not in a girl’s interests to be in the custody of a father who is into father-daughter pornography? Regarding either example, the question arises why either situation requires an expert opinion.)
[ANONYMOUS LISTSERVE COMMENT]: "IMO custody evaluators should determine relevance much as judges do — by a blend of cost-benefit analysis and common sense." (Michigan doctorate-level MHP, January 19, 2007).
94. [ANONYMOUS LISTSERVE COMMENT]: "I would hope, in your hypothetical that both attorneys would actually be prepared to question the expert about all of the subjects you list. I believe that this is the role of the attorney and the way the system is supposed to work. It is not the expert’s responsibility to compensate for poor lawyering. It is my understanding that it is not the role of the expert to tell the court the 15 questions the defense attorney should have asked." (Califiornia doctorate-level MHP, January 29, 2005).
95. For example, consider this passage from a biographical article in Columbia’s Journal of the College of Physicians and Surgeons, on noted parent-infant attachment researcher who is frequently quoted in MHP literature on divorce and custody issues, particularly those pushing joint custody and father involvement, T. Berry Brazelton:
"His mother, a dynamic woman well ahead of her time (the first woman elder in the Presbyterian Church and founder in 1940 of the first abortion clinic in Texas), was somewhat overpowering when it came to child rearing, pushing hard and all but smothering Dr. Brazelton’s younger brother. ‘She was so intense,’ Dr. Brazelton recalls with a shake of the head and a hint of sadness clouding his smile. ‘Gosh, how can passion turn so sour! I knew back then that I wanted to be the kind of person who could help change that passion into something more positive, to help parents pull back and realize that they didn’t have to control their kids."
Peter Wortsman, Alumni Profile – T. Berry Brazelton: Babies’ Best Friend, 16 P&S J. 2 (1996), available online athttp://www.cumc.columbia.edu/news/journal/journal-o/archives/jour_v16n2_0024.html But it would appear that it was the mother of admitted "workaholic" Brazelton’s own grown children, who, in his own words are "okay" — and not Brazelton — who was the hands-on parent in his family. This example is not to pick on the esteemed doctor particularly, but to illustrate a point. To those who would counter that background does not always bias professionals’ perceptions, or interpretations, or work results, then what is it that MHPs believe they are evaluating vis a vis the unpaid "profession" of parenting? Is it not exactly that? How the children will end up based on their childhoods? Be this as it may, Brazelton’s "smothering" mother appears on all measures of achievement to have raised at least one extraordinarily personally and professionally successful son.
Here’s another example: "I am also a divorced father and bring a personal perspective to my professional life. I have shared custody of my children, and I’ve tried to follow the guidelines I encourage in this book. I have seen what works, and what doesn’t. Like all parents, I have made mistakes and tried to learn from them. Finally, I have talked with my own children about my professional and personal observations, as well as their feelings and experiences." Biography of Philip Stahl, Ph.D. (not in psychology), from his website at http://www.parentingafterdivorce.com/books/parenting.html web-accessed March 1, 2007.
Stahl is a well-known political activist and "trainer" in custody evaluation work. His website biography begins "I’ve spent the last 20 years of my professional life working with children and families of divorce. In more recent years, it has become a near-exclusive practice, as I have been a therapist, child custody evaluator, mediator, Special Master, researcher, author, and trainer in the field. I have actively participated with the Association of Family and Conciliation Courts (AFCC) and the American Psychological Association (APA) and local inter-disciplinary committees of professionals in trying to promote a better understanding of how divorce affects children and families and to learn what parents can do to help their children adjust in a healthier way to divorce…"
[ANONYMOUS LISTSERVE COMMENT]: "Liz, Your ability to offend is possibly your strongest skill. My "Daddy" died when I was 16. The average Ph.D. takes about 30 units of research related coursework, not a couple of classes. Your example of out of state practice is an example of psychologists thinking about the law, a point that I conceded. As to extracurricular matters such as raising a family, that has nothing to do with professional training. Your response reflects your training as a lawyer. You vociferously advocated for your position while demeaning a contrary position. You did not analyze the factor of training separate from other factors such as family experiences, age, professional history." (California doctorate-level MHP, May 2, 2005, who strongly pushes fathers’ rights positions).
[ANONYMOUS LISTSERVE PRECURSOR]: "I just haven’t noticed higher abilities in hypothesis testing among psychologists or other mental health professionals. I realize that you have to take a couple of courses in research and statistics to get a graduate degree (in most fields). It doesn’t seem to translate into skills in decision-making across the board. E.g. the recent thread on the Kansas custody evaluation and Virginia side trip. Some very off thinking and relevant point missing.
One might take arguments similar to that you have made and point out that psychologists just aren’t trained as investigators when it comes to obtaining information outside of psychological data (police officers are better.) And that lawyers are better trained at issue spotting and weighing information. And that judges have more experience decision-making.
I also point out that mental health training does not provide actual information and experience relevant to many of the issues that ought to be considered in a custody determination. For example, the financial aspects. For example, educational opportunities. For example, what it’s like to actually be a parent with day-in and day-out responsibility for children, how the home is run, the pragmatics of life. An unwed childless 28-year-old Ph.D. just out of school probably hasn’t a clue — and I for one see this lack influencing unworkable recommendations.
I also point out that skill in testing and coming up with psychological diagnoses does not qualify anyone ipso facto to translate that into parenting ability or even to understand with what kind of or which parent a child’s best interests is most likely to be fostered. There is very little translating dsm diagnoses into parenting abilities and child outcomes, especially when neither parent is perfect and foibles and personality defects have to be weighed…" (liz, May 2, 2005).
96. [ANONYMOUS LISTSERVE COMMENT]: "I certainly recognize that, as ___ has asserted, the judge isn’t "fooled" into thinking that I am neutral and unbiased if I am hired to testify by one side. However, that dilemma doesn’t take away the critical importance of maintaining as much real and perceived neutrality as possible when testifying…" (New York doctorate-level MHP, March 7, 2006).
[ANONYMOUS LISTSERVE RESPONSE]: "Appearances matter. We should strive to avoid even the appearance of a conflict, to reduce any suspiciousness which the Court may have because of being retained by one side to critique the work of a colleague who probably was appointed by the Court..Substance matters. We are human and we are subject to role induction just like anyone else. Without intending to, without knowing, and without ever being asked to, a trial consultalt easily can develop biased perceptions and can lose objectivity. I agree with Heilbrun that no one can be expected to reliably "alternate" between that and the objectivity required of a testifying expert…" (Missouri doctorate-level MHP, March 7, 2006).
[ANONYMOUS LISTSERVE RESPONSE]: "If you guys are getting distracted by all kinds of dissonant voices in your heads, I suggest you up the Risperdol. Meanwhile, back in the real world, courts operate on common sense principles and not on any assumption that each side’s witnesses have undergone extensive psychoanalysis, cognitive-behavioral conditioning, self-hypnosis, Imago therapy, or other heavy duty intervention to purify and purge their consciousness and motives of any scintilla or speck of desire to give the customer (i.e., the retaining attorney) what he wants. No other profession I know of–and certainly not the legal profession–shares some psychologists’ naive conceit that any such purgative process is likely, possible, or effective." (Michigan doctorate-level MHP, March 7, 2006).
97. See the companion article to this one, Custody Evaluators: In Their Own Words, at this website at http://www.thelizlibrary.org/liz/custody-evaluator-quotes.html
98. On two separate occasions, discussion on the anonymous listserve ensued regarding gender bias in the context of making recommendations, and wondering about the percentages of recommendations other evaluators made for primarily mother versus primarily father custody. A number of evaluators apparently believed that having made roughly equal recommendations for mother or father custody illustrated their neutrality and lack of bias. This unfortunate misperception of what would evidence "equality" is pervasive in the MHP community, and an error made even by some lawyers. "Equality before the law" does not mean an artificial "equality of outcome" derived from disparate treatment; mothers and fathers rarely stand before the law in equivalent positions. Notwithstanding changes over the past few decades in the public discourse and cultural mythology, most mothers remain their children’s primary caregiver, and most fathers remain the greater breadwinner. Reproduction itself is not gender-neutral; the populations of mothers and fathers simply are not comparable on average, and an admission that half of an MHP’s recommendations go to primary father custody is an admission of bias discounting mothers’ experience, efforts, commitment, and closer attachments with children.
WHERE DOES THIS MISTAKEN THINKING COME FROM? HOW DOES IT GET PERPETUATED? The prolific MHP advocacy in favor of father’s rights by MHPs such as Kyle Pruett, Ross Parke, Richard Warshak, Sanford Braver and others, the federal government’s funding of Fatherhood Initiatives in the hope of boosting anti-welfare child support collections, the make-work agendas of the APA and AFCC et al., all set aside, it comes from gullibility and personal agendas in the legal community. This confusion over what constitutes a lack of gender bias, among other mistaken beliefs (MHP’s expertise in making child custody determinations, for example) has been perpetuated for years by the MHP community — either deliberately to promote notions of shared parenting which foster increased MHP work in the legal system, or ignorantly. The legal community inexplicably — or perhaps because at any given time any member might be an advocate for the father in a case — has not called them on it in their literature or in their lobbying and promotion. Thus, it is common to see the most amazing drivel (misstatements of legal theory as well as misrepresentations of the state of the research) published by MHPs even in the most scholarly legal journals, astonishingly regularly getting the nod from legal editorial boards who would never stand for the low quality in an article by a lawyer.
See, e.g., Barry Bricklin, Getting Optimum Performance from a Mental Health Professional, 29 Fam.L.Q. 7, 14-15 (1995) ("When humans are left alone, with no outside force to watch over them, a natural pecking order emerges… If a group of children is left unattended, fairly soon the stronger children will have access to all of the best swings… The only way to prevent this is to have some adult interfere, and put in place a decision process as to who has access to what. In other words, the only way to ensure equality is to have some coercive police-like force in operation to prevent natural forces from asserting themselves. Equality is purchased at the expense of liberty.") [emphasis added]
This implies a misunderstanding of the notion of "equality under the law." And it works a subtle propaganda in favor of joint custody father’s rights social engineering. Nothing about the need for a decision-maker ever implies that those access decisions must manipulate and engineer an artificial equality of outcome. Would the adult mediating a dispute over children’s toys between a group of boys who had forcibly taken away the dolls of a group of smaller girls, either to taunt them or because the boys had broken theirs, insist that the girls may not have all of their dolls back, but must share? Of course not.
Was this deliberate? You decide. The commentary all about "equality" followed nonsequitoriously after a paragraph about (and under the subheading of) an exposition ostensibly about "Test Security vs. Due Process" — as an explanation of the notion of "due process." What is such confused and confounded thinking doing in an article in the ABA Family Law Quarterly?
[One might ask why Bricklin et al. and similar are being published in the first place in one of the country’s most esteemed legal journals. An Editor’s Note to the volume explained the hesitation at publishing MHP articles. and provided a weak rationale for proceeding. The choice set an unfortunate precedent for the law, legal journals, and in particular, the ABA’s Family Law Quarterly over the following decade (see note 102b, infra), which increasingly featured more MHP articles, most of no better scholarship,e.g. the faux scientific risk assessment model for relocation cases in William G. Austin, Relocation Law and the Threshold of Harm: Integrating Legal and Behavioral Perspectives, 34 Fam.L.Q. 63 (2000) ("Relocation cases are likely to be litigated only when there are two very involved parents" and similar unsupported statements, such as "The scientific basis for the model is derived from several research literatures" followed by a cf to nothing having anything to do with the "model" and requiring the sort of extrapolations that routinely are criticized as unsupported or speculation when… oh say, when liz makes them..) Also see, in the same unfortunate volume, a similarly problematic article, Richard Warshak, Social Science and Children’s Best Interests in Reolcation Cases: Burgess Revisited, 34 Fam.L.Q. 83, 89 (2000).]
99. Stephanie J. Dallam & Joyanna L. Silberg, Myths that place children at risk during custody disputes, 9 Sexual Assault Rep. 3 (2006). Richard Gardner’s gems include such comments as "Older children may be helped to appreciate that sexual encounters between an adult and a child are not universally considered to be reprehensible act. The child might be told about other societies in which such behavior was and is considered normal. The child might be helped to appreciate the wisdom of Shakespeare’s Hamlet, who said, ‘Nothing’s either good or bad, but thinking makes it so.’ In such discussions the child has to be helped to appreciate that we have in our society an exaggeratedly punitive and moralistic attitude about adult-child sexual encounters." Richard A. Gardner, True and False Accusations of Child Sex Abuse, Creative Therapeutics (1992), at p.549.
100. See Stephanie J. Dallam, David H. Gleaves, Antonio Cepeda-Benito et al., The Effects of Child Sexual Abuse: Comment on Rind, Romovitch, and Bauserman (1998), 127 Psych. Bull. 715 (2001), responding to the claim by Rind and company, inter alia,that child sex abuse sometimes could be an innocuous or even positive experience, and in such cases should be referred to using the ostensibly non-value-laden terminology "adult-child sex". The Dallam et al. article can be accessed on-line at the Leadership Council Website at http://www.leadershipcouncil.org/docs/Dallam2001.pdf
101. [ANONYMOUS LISTSERVE COMMENT]: "These high conflict, frequent flyers are likely to be destroying their kids. Someone needs to make decisions for them since they obviously can’t. Note the limited scope of decision making authority in the SM or PC role. There is a problem switching roles from therapist to SM or PC or whatever we call the decision maker. See AFCC Guidelines For Parenting Coordination (available on their website) which speaks to that point. One of the problems is that you move from a confidential process to a nonconfidential one, and all that that entails in terms of practical difficulties.Some 60%+ are likely to have personality disorders." (Canadian doctorate-level MHP, December 24, 2005).
[ONE OF THE RESPONSES]: "I am surprised that any "highly contentious" couple that has been to court 32 times would be willing to be in couple therapy. Your friend is frustrated that he can only help them to ‘grow,’ and I wonder what the goals of the therapy have been up to now. Many contentious, divorced parents are not willing to be in the same room with each other, or to even look at each other, much less talk to each other. If this couple is still willing to meet and participate in therapy it makes me wonder if maybe they are not quite finished with the marriage. I can’t imagine any positive goal that could be met with them in therapy." (North Carolina masters-level MHP, December 24, 2005).
102a. [ANONYMOUS LISTSERVE FATHER’S DAY NEWS ARTICLE DISTRIBUTION]: "Sunday, June 19, 2005 6:01 AM CDT Nontraditional fathers strive to stay involved with kids despite challenges… WATERLOO — This is the day to celebrate dads. Across the country, men are surrounded by their children…" (Doctorate-level MHP, June 20, 2005).
102b. For a brief but decent overview of the "services" and history (but omitting mention of the promotional role played by make-work MHP trade organizations in pushing these ideas and convincing "courts" that they want and need them), see Jessica Pearson, Court Services: Meeting the Needs of Twenty-First Century Families, 33 Fam.L.Q. 617 (1999).
(By 2001, the Wingspread Conference sponsored by the American Bar Association Family Law Section and the Johnson Foundation, held in Racine, Wisconsin September 8-10, 2000, between MHPs and the legal industry, cut the ribbon on this reconstruction of family courts and due process. The conference was reported in the Family Law Quarterly, as well as written about in the AFCC house organ, Family Court Review. Almost like incest now, isn’t it. See Andrew Schepard, Editorial Notes, 39 Fam. Ct. Rev. 139 (2001) and Editor’s Note and High-Conflict Custody Cases: Reforming the System for Children — Conference Report and Action Plan, 34 Fam.L.Q. 589 (2001).
103. [ANONYMOUS LISTSERVE COMMENT re a pending criminal case against one parent for tax evasion]: "I guess I’d wonder how we’d know that the parent is such a wonderful parent if he or she is lying all the time. The parent may be doing some admirable things in front of witnesses, but if you have uncovered a pattern of systematic misrepresentation in what the parent tells you, how can you rely on the parent’s account of what he or she does when alone with the child. I’d wonder if the parent is also teaching the child to lie, or inducing the child to lie in the context of the custody dispute. As you said, though, the issues have to be relevant to parenting. This is another reason I don’t review tax returns. In addition to the fact that I’m not qualified to judge how "kosher" they are, the base reate of people who cheat on their taxes is probably high enough that there are some wonderful parents who do it… and I have no expertise in determining if the parent is even doing anything illegal… If, on the other hand, the data reveals a consistent pattern of one parent misrepresenting information related to the custody dispute, it raises a lot of other concerns." (California doctorate-level MHP, November 23, 2005). [Query: what, in this context, would be "information related to the custody dispute" — only evidence of a misrepresentation made directly to the custody evaluator on topics of the MHP’s choice?)
104. Meddling with others’ families is meddling with their very images of self. For one scholar’s point of view on the disjunct between science and individuals’ perceptions of their families, see Kerry Daly, Family Theory Versus the Theories Families Live By, J. 65 J. Marriage & Fam. 771 (2003). "…there is significant disjunction between the way that families live their lives and the way that we theorize about families. Using the metaphor of positive and negative spaces from the art world, I argue that there are many negative spaces in our theorizing — everyday family activities that take up considerable time, energy, and attention but that are poorly represented in our theorizing about families."
105.The psych literature on custody itself is decidedly biased. Studies that do not support their theories tend to be ignored. For an example of a largely ignored study, see Daniel N. Hawkins, et al., Parent-Adolescent Involvement: The Relative Influence of Parent Gender and Residence, 68 J. Marriage & Fam. 125 (2006). The following quotes are from that study, which tends to disprove many pet MHP claims about joint custody, maternal gatekeeping, and post-divorce father involvement:
"The results of this study support a gender system view of parenting, as parent gender, compared to parent residence, was found to be the stronger dimension underlying parent-adolescent involvement. In terms of involvement frequency, mothers tend to be more involved than fathers, and even nonresident mothers engage in as wide a range of activities with children as do most resident fathers. Moreover, in the multidimensional scaling analysis, parent gender accounted for approximately 95% of the variance between parent categories in patterns of involvement. Macrostructural, normative, internalized, and even biological aspects of the gender system may allow, encourage, or sanction mothers to participate in a wide range of activities and forms of communication with their adolescent children, irrespective of living arrangements."
"Nonresident fathers showed slightly lower levels of involvement when their adolescents did not live with their biological mothers, supporting previous work that suggests a pattern of mothers pulling nonresident fathers into parenting (Harris & Ryan, 2004), rather than gatekeeping to limit contact with the adolescent."
106a. [ANONYMOUS LISTSERVE COMMENT]: "Here are some examples of the things I look at… Collateral data on parent child relationship… what child has to say about relationship… initial response of child to learning of upcoming contact with parent, initial responses of child to initiation of contact with parent, responses of child to separation from parent. Observations of child-parent interactions in home environment and outside environment. Child centeredness of parent’s home environment, given parent’s type of residence and custody status. Parent’s placement of child’s needs, and interests over keeping to scheduled contacts with child. Given precursors, including court orders, parent’s participation in child’s life. Given precursors, parent’s knowledge of child’s likes, dislikes, preferences. Given ability, parent’s willingness to alter lifestyle to accommodate child’s needs… They lead to subjective opinions, but my reports contain citations of what I, or other saw, heard, observed to go with the opinion." (California doctorate-level MHP, June 13, 2006).
106b. [ANONYMOUS LISTSERVE COMMENT]: "Intuitively and clinically it makes sense to me in 50/50 custody situations to have children of latency age plus to have a 5/2-2/5 schedule as opposed to 7/7, that is, 5 days with Parent A, 2 days with parent B, 2 days with Parent A, 5 days with Parent B versus one full week with each parent. The 5/2-2/5 has the children living with, say Dad, on all Mondays and Tuesdays, let’s say, Mom on all Wednesdays and Thursdays and to alternated Friday-Sunday one weekend with one parent and the other with the other parent. BUT I know of no research that supports this intuitive and/or clinical belief of mine. Do any of you have research that supports 5/2-2/5 vs. 7/7 (or that supports 7/7 being better than 5/2-2/5)?" (California doctorate-level MHP, October 5, 2006).
107. [ANONYMOUS LISTSERVE COMMENT]: "If we view a "locked in" alternating weekend schedule as a "3-3…," with four days left to build in, then: 1) dividing the remaining four in half means we end up with a 5-5-2-2 – strike one; 2) dividing the remaining four into 3 and 1 means we end up with a 6-6-1-1 – strike two; and 3) keeping the remaining four together means we either end up with 4-4-3-3 that doesn’t alternate weekends, or a 7- 7 that flips them…" (California doctorate-level MHP, January 19, 2007).
[ANONYMOUS LISTSERVE RESPONSE]: "Wow, that is a lot of math… some time ago someone asked about custodyxchange.com… I spoke with the developer, a computer programmer now in an MBA at MIT, very personable, with what seems to be an easy to use program with an easy to read print out…I’m about to order it…" (Florida doctorate-level MHP, January 19, 2007).
108. This particular malady also seems to affect a lot of women judges.
Another example raises the question of what influences advocacy, this one from a woman lawyer and AFCC activist who inexplicably lobbies for joint custody and father’s rights (and more therapeutic jurisprudence in the courts) even though the arrangement worked for neither herself as a child, nor, ultimately, her own daughter:
[ANONYMOUS LISTSERVE COMMENT]: "In personal life, we learn things about the day to day realities too, that influence the lenses through which we see life. So, whether you want to term it bias or experience, here’s what I’ve lived. My parents divorced when I was in junior high. Joint custody wasn’t a glimmer on the horizon. It would have been a poor outcome for our family, even if it was feasible at the time. My daughter is 22. Joint custody worked for her from age 8 to about 14-15. At that point she decided to reside primarily in our home, because of stepmother conflicts (now they are close) and because her needs as a teenager clashed with a household organized around an infant and a toddler’s schedule." (California lawyer, March 5, 2006).
109. Academic study appears to be of little help in creating perspective. Much research exists indicating that on average, fathers in intact homes spend far less time than mothers do in direct and indirect childcare. Recent research, however, has been touting an increase in father’s participation but much of the research as designed appears to perpetuate the same lack of understanding of what constitutes primary parenting. See, e.g., W. Jean Yeung et al., Children’s Time With Fathers in Intact Families, 63 J. Marriage & Fam. 136 (2001), finding that fathers in intact families spend 67% as much time on weekdays, and 87% as much time on weekends as mothers do doing childcare.
A closer look at the Yeung study indicates that no allowance was made for what the fathers versus mothers actually were doing in the time they were credited for, particularly for indirect care "accessibility", and moreover, no time was logged that included childcare activities (such as telephoning arrangements, cooking, laundry, and so forth) that did not involve either being "directly engaged" with the child or being "accessible" to the child (somewhere in the vicinity). Thus, fathers were credited for being directly engaged in childcare for such things as merely being present at a meal or accompanying the family to church. And mothers were not credited for a substantial amount of childcare activity. Fathers also were credited for being "accessible" merely by being in the home at the same time as another adult who was actively engaged in direct childcare and other chores, or else was similarly "accessible." For example, fathers were credited as performing childcare activities by being "accessible" while someone else actually fed the infant, and while other adults were present in the home while an older child did homework alone. Mothers’ work thus was downgraded and minimized, while for the most part, fathers’ was enhanced.
The researchers apparently were aware of the flaw, but disclosed it in a way that only a sharp eye would be likely to notice — as a lack of reporting on fathers’ ostensible other caregiving activities and ignoring the impact this would have on mothers’ comparable caregiving time: "The definition of fathers’ involvement in this article is limited to those that require the physical proximity of the fathers, however. Thus, activities that may entail cognitive or emotional investment of fathers when they are not physically near their children, such as setting up a college fund or searching for a good health insurance policy for a child while he or she is at school, are beyond the scope of this article." p.137 (How often does a parent search for health insurance or set up a college fund… versus do the food shopping, prepare meals, shop for the children’s clothing, arrange playdates, check in with the babysitter, do the laundry, purchase the child’s school supplies, clean the child’s room…? Specious.)
The Yeung study numbers were taken from daily logs of 1738 children’s activities. The most telling data of the entire study is who completed those daily logs: "For the sample used for this article, 60% of the diaries were completed by the child’s mother alone, 12% were completed by the mother and the target child, 6% were completed by the child alone (all of these children were 9 years or older), and 15% were completed by someone else in the household, such as a grandmother or other relative. Information on who completed the instrument is missing for approximately 7% of the diaries." p.139. That mothers and apparently few or no fathers prepared or assisted with the preparation of the children’s logs was, however, a negative in the eyes of the same researchers: "It therefore is important to bear in mind when interpreting the results the variation in respondents and the fact that data used in this paper were reported mostly by mothers." p.139-140.
But see, e.g., a study by major researchers that somehow has not got cited over and over in the MHP literature, Hawkins, et al., Parent-Adolescent Involvement, supra, note 105.
110. [ANONYMOUS LISTSERVE QUERY]: "I was recently appointed to a case in which there is a quesiton about splitting up siblings (ages 2 and 3) rather than keeping them in home home. Instead of appealing to "conventional wisdom", I’d like to familiarize myself with the research in this area. I’d appreciate being pointed to such research/papers by those of you who so kindly and often repeatedly share their bibliographies."" (California doctorate-level MHP, February 13, 2005).
[ANONYMOUS LISTSERVE QUERY]: "…Apparently, the attorney told the client and spouse what my husband’s occupation is which she believed to be the same as the spouse. In reality it is a related field but not the same… When I went into the waiting room the spouse, who didn’t have an appt. but the parent and child did, jumped up made an introduction and said I heard your husband is also a… They had accidently come an hour early and ran into the other parent and spouse in the waiting room. During the observation session the child was upset and at the end of the session I spoke with the child. During that 1 hour interval they had to wait (for their appointment) the stepparent was discussing in front of the child that I had wasted an hour of their time, there was a conflict of interest as my husband was in the "same" field as him, and he was checking with the Board to see if I was licensed. The goal was to get me off the case. Child reported Mother commented she didn’t like me for comments I made, that I did not. This is a contested move away and CCE that Mother has been fighting and has been successful in delaying 1 month since I’ve been involved. The stepparent said, according to the child, "No one messes with me" in reference to me. I’m unhappy the atty would have said anything that related to my personal business. Address it or let it go? Does this in anyway affect the process? Do the attys need to be appraised of the stepparent’s attempts to get me off the case?" (California doctorate-level MHP, April 10, 2005).
111. [ANONYMOUS LISTSERVE INTRO]: "I have been performing child custody evaluations in New Mexico for almost 20 years… Raising a stepdaughter has made me sensitive to many of the issues in divorce/custody cases. I have a good relationship with my stepdaughters father, and his mother…" (New Mexico doctorate-level MHP, February 23, 2006).
112. In the absence of research, MHP’s speculations mislead as to the state of their "expertise." There is no apparent requirement that self-styled experts demonstrate a clear research foundation for their ideas or even their own parenting ability prior to making proclamations about what is good or bad for other people’s children and families. Moreover, popular trends, un-backed by research, and promoted by political activists, permeate the MHP and lay literature, then the MHP recommendation-making, and finally, court decisions.
The history of the notion of "parallel parenting" is an example of this.See, e.g. book by divorced father and joint custody activist, Philip M. Stahl, Parenting After Divorce: A Guide to Resolving Conflicts and Meeting Your Children’s Needs, Impact Publishers (2000). "…The second step in this process is what I call parallel parenting. In this style of parenting, both of you will each learn to parent your child effectively, doing the best job each of you can do during the time you are with your child. You will continue to disengage from the other parent so that conflicts are avoided. If you determine that you cannot cooperatively parent because your level of conflict is moderate or high, disengagement and parallel parenting is the necessary style of parenting. Parallel parenting gets its name from a similar concept in children’s play. Research psychologists have observed that young children who play together, but do not have the skills to interact, engage in a process of parallel play…"
No research indicates that disengaged parenting, in which a child is forced simultaneously to live in two separate uncommunicating households, is not harmful. No research indicates that this is a "step" towards anything beneficial, least of all cooperative parenting. Prior to Stahl and others deciding to tout parallel parenting as a viable custody arrangement for children post-divorce, it generally was assumed to be harmful, and considered to be an indication of the failure of joint custody. See, e.g.,Braiman v. Braiman, 44 NY2d. 5884 (1978) "joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in a mature civilized fashion. As a court-ordered arrangement imposed upon already embattled and embittered parents… it can only enhance familial chaos." No new research has indicated that these assumptions about children’s wellbeing were incorrect.
Also see Isolina Ricci, Mom’s House, Dad’s House: Making Shared Custody Work, Macmillan (1997), characterizing parallel parenting as one of four "unhealthy" parenting patterns. Also see generally, e.g. Eleanore E. Maccoby & Robert H. Mnookin,Dividing the Child: Social and Legal Dilemmas of Custody, Harvard University Press (1992) (characterizing joint custody arrangements in which parents were not communicating as an indication that after a period of time, joint custody was not facilitating coparenting cooperation and not working for most of the families.)
But the activism er, professional "trainings" have been paying off. The "solution" of parallel parenting is echoed in numerous legal, father’s rights, and MHP websites and literature, successfully rehabilitated from its former status as a description of shared parenting failure. For example, a Canadian lawyer declares "Good News For Guys" at his website at http://www.4famlaw.com/Good%20News.htm, accessed March 1, 2007, noting Canadian court decisions that upheld "parallel parenting arrangements" and advising men seeking custody to "Strive for something that you label as "parallel parenting" as opposed to ‘joint custody’" and "Find the right parenting assessor. As tricky as it sounds, do what it takes to undergo an assessment that recognizes the value of both parents being involved with their child as participatory parents and not as a mere occasional weekend visitor."
On another website, a social worker parrots Stahl’s example of toddlers at play "At about 2 years of age children don’t yet know how to share, but may enjoy each other’s company. They happily play beside each other, each with their own toy. By about 3 years of age, children are learning to share…" Parallel Parenting — A form of joint child custody: For when parents don’t agree on how, but neither is "bad", http://www.yoursocialworker.com/s-articles/parallel_parenting.htm, web-accessed March 1, 2007. The analogy overlooks a false and dangerous inference — that because small children engage in "parallel play" before developing social skills, therefore "parallel parenting" must be a developmental step toward a socialized cooperation for full-grown hostile adults whose relationship interaction has in fact "developed" in the opposite direction, from love and marriage to hostility and conflict. It consequently also overlooks the very real possibility that the custody plan will be a permanent schizophrenic lifestyle for the child who moves between the two uncommunicative households, and an indicator of an ever-increasing estrangement between the parents who, when they are not in direct conflict, live more and more unconnected lives.
In the absence of scientific expertise, the kind of MHP hypothesizing set forth above is not a recommendation in favor of MHP thinking and decision-making.
113. Cf, William M. Grove & Paul E. Meehl, Comparative Efficiency of Informal (Subjective, Impressionistic) and Formal (Mechanical, Algorithmic) Prediction Procedures: The Clinical-Statistical Controversy, 2 Psych. Pub. Pol. & L. 293 (1996). ("Despite 66 years of consistent research findings in favor of the actuarial method, most professionals continue to use a subjective, clinical judgment approach when making predictive decisions." p.299. "Clinical experience is only a prestigious synonym for anecdotal evidence when the anecdotes are told by somebody with a professional degree and a license to practice a healing art." p.303) Available on the web at http://www.tc.umn.edu/~pemeehl/167GroveMeehlClinstix.pdf
[ANONYMOUS LISTSERVE COMMENT]: "Thanks to all that responded on my previous question. I have since read the deposition and found that the other psychologists claimed that he could interpret the R and other tests subjectively because of his extensive experience…" (California doctorate-level MHP, February 7, 2005).
114. "Histories of medicine teach us that until around 1890, most of the things physicians did to patients were either useless or actively harmful. Bleeding, purging, and blistering were standard procedures, as well as prescribing various drugs which did nothing. In 1487, two Dominican monks, Kraemer and Sprenger (1487/1970), published a huge treatise,Malleus Maleficarum, that gave details on how to reach a valid diagnosis of a witch." Id., at 219.
(Although the term "witch hunt" rather cleverly has been coopted by uber-skeptics who for unknown reasons have sided quite unskeptically with the false-accusation, accused abuser defense lobbies who pro-actively adopted it for its useful propaganda purposes, it actually applies with far better analogy to the widespread claims that mothers of children who make accusations of having been abused must have have brainwashed the children into holding false memories and beliefs. The maternal "parental alienator" is in fact the new 21st century "witch.")
116. As is usually recognized by the MHP, e.g. Pickar, supra, note 66b, but only when convenient or desired. Compare the following. The first two commentators are uninterested in acknowledging past financial issues that have wreaked family havoc, and arguably bear on character as well as explain motives and feelings of the parties; the third is interested in supporting a father’s request to relocate, and so believes that it is within his province to gather and analyze data about prospective financial matters:
[ANONYMOUS LISTSERVE COMMENT]: "Tax returns?? Simple issues like one parent claimed 4 kids and there are only two, I can probably figure that out and that speaks to honesty and maybe tracking reality. But I agree that we should not be analyzing tax issues. If it is that complex I can’t think how that would be relevant to custody/parenting issues. If it is, both parent provide information and you hire a tax consultant to review it. I can’t imagine what could be relevant… I have a case right now where there are federal indictments on one parent to the tune of over 1/2 millions and all kinds of issues around money. Very little of it is relevant (except possible prison and honesty) and the other parent wants to make it all relevant. She brought me a notebook of financial records. That’s about her anger about the money – which is relevant to know how angry she is at dad and how that affects her children." (Kansas doctorate-level MHP, November 23, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "…As for the parent who seeks 50-50 custody just to avoid paying child support (a fairly frequent allegation), the only professionally acceptable way for me to evaluate that is through the psychological issues, as I look at other dimensions of the parent-child relationships…" (California doctorate-level MHP, November 24, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "Evaluators are asked to present descriptive data which lie outside of specific training all the time. This is one of those variables or issues. Can parent A afford to travel to the new community for parenting time or get off work is another. The court expects the data on the issue. You are assuming all case go in front of the judge who would hear evidence on this type of factor or issue. You know reports are written and a high percentage of cases settle, probably 80-90%. So the descriptive data is helpful to the parties as well…" (Colorado doctorate-level MHP, February 9, 2006).
117. [ANONYMOUS LISTSERVE COMMENT]: "Perhaps a logical extension of this would be for parents to consider items such as toys and clothes to belong to each parent and not the child to be taken freely between homes. Obviously, this should not become a problem with a cooperative parenting plan in place. However, when the issue of parents fighting over underwear not being returned, or making a child change back into the same clothes they were wearing when they came, it helps me in formulating my recommendations regarding the necessity for a parallel parenting plan." (Oklahoma doctorate-level MHP, March 1, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "…disagree… If there are disciplinary/behavioral/academic problems, well, the Play Station, the X-box, etc. become ways, hopefully, to teach children the concept of needs vs. wants, and that the luxuries of life may be withdrawn (and must be earned back) when age-appropriate behavioral expectations are not met, including HW, chores, respect, compliance, etc… however, when it comes to a kid’s favorite sweater, blankie, toy, book, etc etc… I beg to differ. There are items that I believe the children have the right to view as their own, no matter which parent purchased them. I typically recommend to divorced parents that they purchase duplicates of whatever they can to limit the chaos caused by ‘forgotten’ items (and to reside as close as possible to each other for the occasions of forgotten items that cannot be duplicated) and…" (California doctorate-level MHP, March 1, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "What in your role as a CCE prevents you from making recommendations concerning resolving parents’ conflicts over matters not strictly limited to custody and parenting time (e.g., over how children’s possessions should be maintained/exchanged)? Might not your thoughtful opinions on these matters be helpful to the parents, the children, and the court?" (Michigan doctorate-level MHP, March 2, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "One of my long-ago memories from school is of the girls gossiping about another girl who wore the same clothes twice in a row. I don’t know what it’s like now, but this was a big no no in the 50s… ("Minnesota masters-level MHP, March 3, 2007).
118. Supra, note 26.
119. "Groupthink" is a theory initially posited by social scientist Irving Janis. It might have application to the way legal and psychological organizations have assumed the validity of the concept of therapeutic jurisprudence without considering the underlying precepts, or in fact whether it is accomplishing anything at all of value. Those within the group who are vested in its ideas are the least likely to see the dynamic. See generally, James K. Esser, Alive and well after 25 years: A review of groupthink research, 73 Org. Behav. & Hum. 116 (1998).
120. Cf, note 62, supra.
122. [ANONYMOUS LISTSERVE QUESTION]: "…My role is to facilitate communication between the parties and implement a plan for helping the kids reunite with their father. My role was redefined to be a parenting coordinator/parenting plan facilitator with a clear plan for me to oversee that involved therapy for the boys, meetings between boys and father and gradually increasing times for the kids to see father. There is a GAL who has done two updates so far. There is also a therapist for the two boys. At this point there have been a few meetings between father and sons with myself and the therapist present. The problem with the disinformation became abundantly clear in one of the sessions with the boys and dad in which they asked him a lot of questions. dad was honest but careful in his responses to the children. Of course my role is to do the impossible, because the boys have made it abundantly clear that if their father cares about him he would back off. At this point the children are supposed to be attending therapy which has happened very erratically and father has backed off and is being coached on staying in touch with the boys in unobtrusive ways. I am thinking of taking on the role of providing information to the kids because I don’t think anyone else will do it-It just feels so contrary to anything I’ve done or recommended before. Then the therapist can be there to help them process the info. The court has clearly ordered that the parents comply with my recommendations. Any ideas will be appreciated. Has anyone seen this done in this kind of case?" (Massachusetts doctorate-level MHP, June 4, 2005).
[ANONYMOUS LISTSERVE RESPONSE]: "Goodness. Nothing you wrote seemed clear or unambiguous to me. Each of those "facts"–e.g. father won’t pay for education" could be seen as true or false depending on where you are coming from. Yet you have accepted the father’s interpretation of everything. Not fair. Why don’t you tell father to settle the civil suit with mother so she can get divorced and to pay for the kids’ private school? …And why should kids this age not know all? They will very soon, anyway." (smarter Massachusetts doctorate-level MHP, June 4, 2005).
Imagine a contract dispute case in which, instead of taking the parties as they come before the court and adjudicating their current circumstances, the judge decided to appoint intervenors to see whether the disputants might instead be induced to get along, or whether there were some way to redo a partnership contract or employment arrangement to render a business relationship more functional. What is going on here is a vestige of the nonlegal California marital "conciliation" courts, anomalously and unwarrantedly in a system of jurisprudence that nearly universally has recognized the inappropriateness of actions seeking heart-balm damages for broken promises to marry or alienation of affections, or court orders mandating the performance of personal services.
124. For an example of how background might influence the MHP’s investigation, perceptions and conclusions, see Lisa D. Cromer & Jennifer J. Freyd, What Influences Believing Child Sexual Abuse Disclosures? The roles of depicted memory persistence, participant gender, trauma history, and sexism, 31 Psych. Women Q. 1 (2007). From the abstract: "Men believed abuse reports less than did women, and people who had not experienced trauma were less likely to believe trauma reports. Gender and personal history interacted such that trauma history did not impact women’s judgments but did impact men’s judgments. Men with a trauma history responded similarly to women with or without a trauma history. High sexism predicted lower judgments of an event being abusive. Hostile sexism was negatively correlated with believing abuse disclosures." The study at the University of Oregon found that "young men who have never been traumatized are the least likely population to believe a person’s recounting of child sexual abuse." (News release, Believing child sexual abuse claims, U. Or. Univ. News, February 13, 2007, at http://www.uoregon.edu/newsstory.php?a=2.13.07-disbelievers.html)
125. [ANONYMOUS LISTSERVE QUERY]: "My 8 year old son is complaining a lot about being bored in school, to the point it seems to be affecting his overall happiness… I experienced similar problems throughout elementary and high school.. Will talk with the school but am seeking ideas to help him cope…" (Doctorate-level MHP father, April 21, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "While such "purity balls" are not something that I and my daughters (ages 14 and 12 next week) have ever or would ever participate in, I can indeed tell you that as a father I feel a desire to help protect my daughters from predators and even poor choices on their part." (Idaho doctorate-level MHP father, April 19, 2006).
[ANONYMOUS LISTSERVE COMMENT]: "I asked my stepdaughter what stores my granddaughter likes… One of the stores she mentioned was Victoria’s Secret. Why would a high school junior want to buy anything in Victoria’s secret? Has it changed in terms of what it sells? I know they all like to dress like streetwalkers, but this is ridiculous." (Minnesota masters-level MHP mother, February 28, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "School is important for kids… why not look and take the time to get good data from people who see them more than we do? And who see them sometimes more than their parents do. I’m going to stop now and call my son’s school. Seems there is an academic counselor… who is helping my son with sending emails to college soccer coaches. She’s helping my son and deserves my support… the students at school call this counselor, "Momma." And I know why. Aren’t some kids just luckier than others?" (Kansas doctorate-level MHP father, May 10, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "I wouldn’t allow a five-year-old to watch that either. I even remember shutting off that movie when I saw the impact it was having on my son a couple of years ago. Had I known what was in it I wouldn’t have started showing it to him in the first place… I occasionally allow my 11-year-old son to watch R rated movies with us, but I’m pretty selective." (Texas doctorate-level MHP father, February 8, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "I walked out on "The Legend of Sleepy Hollow" with my wife and children in tow, because the level of unspeakably gruesome gratuitous violence was *way* over the top, by my standards. Same for "Gladiator." In both cases, the theater was full of parents and young children, age five and up." (California doctorate-level MHP father, February 8, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "I wouldn’t have my 5yo watch Saving Private Ryan, either." (Indiana doctorate-level MHP father, February 8, 2005).
[ANONYMOUS LISTSERVE COMMENT]: "In years past I was peripherally involved in a number of cases in which one or both parent lost his/her parental rights permanently, and the child was adopted by another family and/or someone was prosecuted for sex crimes…. Personally, I think I’d rather go to the gas chamber than to lose my children permanently." (California doctorate-level MHP father, December 16, 2004).
[ANONYMOUS LISTSERVE COMMENT]: "The "Constitutional Right" to relocate is like a lot of other of our rights: when you accept special status you must also accept special obligations that reduce your personal rights… When a parent accepts appointment by the court as the primary residential parent, that parent looses some personal freedoms… When I was single after my first marriage, I had a rule. I would never go out again with a woman who made one complaint about my parenting time, or who made one complaint about my children other than about their poor behavior towards her, if any." (Texas doctorate-level MHP father, June 10, 2005).
Also see note 95, supra. (What is interesting is that some of these pollyannish tsk-tsks come from some of the same MHPs who persistently doubt allegations of child sexual abuse. See additional quotes here, here, and here.)
126. It’s far from far-fetched to consider bias stemming from sexual misbehaviors inasmuch as this is the single area which generates more complaints against MHPs than doing custody evaluations. See Pickar, On Being a Child Custody Evaluator,supra, note 13b, at 108.
127. [ANONYMOUS LISTSERVE COMMENT]: "The cloak of science very often does exactly that: Imbue what are value laden, subjective choices that reasonable people can disagree about with an air of objectivity and solidity that is, in my opinion, often deceptive. " (New York doctorate-level MHP, January 31, 2006).
128. Expect an insulted objection along the lines of "When you go to a doctor, he doesn’t also take off his clothes." This arrogant and facetious analogy would be false, however. One about to undergo surgery certainly would be entitled to know if the surgeon had recently suffered nerve damage in his hand or had had five martinis at lunch. One suffering from an infection or in a weakened wounded state certainly would be entitled to know — and have the opportunity to steer clear of — a physician infected with a communicable disease or who simply did not believe in washing his hands. And finally, a litigant about to subject herself to a forensic examiner of her eyesight or hearing or broken arm would have every right and reason to question the physician’s request that she take off her clothes, get on the table, and put her feet in the stirrups.
129. "Disappointing as it is to acknowledge, in an age and nation where expertise and excellence are so venerated, child custody and other behavioral science experts generally cannot reasonably demonstrate that their ability to make accurate pre- or postdictions is any greater than that of an ordinary mind, or that their expertise is more effective than that of another expert or a nonexpert." Thomas M. Horner & Melvin J. Guyer, Prediction, Prevention, and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made: I. Predicable Rates of Diagnostic Error in Relation to Various Clinical Decisionmaking Strategies, 25, Fam. L. Q. 217, 251 (1991), as quoted in Daniel W. Shuman, What Should We Permit Mental Health Professionals to Say About "The Best Interests of the Child"?: An Essay on Common Sense, Daubert, and the Rules of Evidence, 31 Fam. L. Q. 551, 567 (1997). Shuman goes on to conclude that "[L]aying the blame exclusively at the feet of mental health professionals is misplaced. Perhaps the problem is not that psychologists and other mental health professionals do not have empirically grounded answers to these questions [about the "best interests of the child"] necessary to resolve specific cases, but rather that the legal system has chosen a standard based on the assumption that mental health professionals do…" Id., at 569.
It’s been ten years since Prof. Shuman wrote his essay, and a decade and a half since Horner and Guyer wrote their article. And things just keep getting worse and worse. Perhaps instead of reading the drivel passed out at AFCC conferences, judges ought to exercise more judicious selection of their sources of information, read some of the scholars who actually know something, e.g. those cited, supra, note 3.
130. [ANONYMOUS LISTSERVE COMMENT]: "Once you have established a professional relationship with judges who often utilize your services, most of them are receptive to writing an Order that declares that the evaluation will be conducted in accordance with the policies and procedures outlined in your Statement of Understanding." (New Jersey doctorate-level MHP, May 3, 2004).
131. [ANONYMOUS LISTSERVE COMMENT]: "2 months ago, while serving as the Parenting Coordinator (PC) on a case, one attorney called my office and wanted to depose me, before I submitted my required report for a status update to the Court. They said it was a courtesy call, offering me the professional courtesy of arranging for the deposing and scheduling it without having to be subpoenaed. How thoughtful. It was not cc’d to the other counsel however, so I wrote back and forwarded the letter to opposing counsel. I received another letter from this attorney, also not cc’d to opposing counsel and then the subpoena I requested… When I got the subpoena, there were no arrangements to pay my fee beforehand, so as time went by and nothing happened, I drafted a letter to the attorney outlining me fees for depositions, which include certified payment at least 7 days prior to the deposition so I have time to prepare. I heard nothing and he was shocked when I did not arrive…" (Arizona masters-level MHP, October 25, 2006).
[ANONYMOUS LISTSERVE COMMENT]: "Richard Ofshe charges portal to portal, and I’ve heard him say that’s his doorstep back to his doorstep." (Colorado doctorate-level MHP, October 27, 2006).
[ANONYMOUS LISTSERVE COMMENT]: "Charge for the time you work or travel. If you leave home at 6:00 AM to go directly to the location of the court, you begin to charge at that hour. If your work/travel day ends at 6:00 PM, the total charge is for 12 hours. If the attorney wants an evening meeting and it goes until 9:00 PM, then the charge is for 15 hours. The following day the charges begin when you begin working and end when you finish working or arrive back home. There is no charge for sleeping, watching TV, ironing, or phoning your family! I have heard attorneys say that even thinking about a case constitutes billable time. It doesn’t matter if you’re out jogging, washing the car, or grocery shopping!" (Pennsylvania masters-level MHP, October 27, 2006).
[ANONYMOUS LISTSERVE QUESTION]: "In a custody case, I did an individual evaluation of a girl (just her, not a cce). The Family Court case is over now. After my eval was done, the girl accused her father of sexual abuse. She made no allegations of abuse to me, and I did not opine that there was abuse or that there wasn’t. Now there is a criminal case against him. I received a subpeona from the prosecuting attorney to testify for the prosecution. A colleague serving as the child’s therapist (to whom the girl made the allegations) was required to testify earlier for several hours, without payment. My question: Since I’m pretty sure the prosecuting attorney plans to ask me questions requiring expert opinion, aren’t I entitled to be paid for my time?" (Missouri doctorate-level MHP, November 14, 2006).
[ANONYMOUS LISTSERVE COMMENT]: "I request what I estimate will be needed before I start writing. If something else comes up (like a last minute return call from a collateral or something) that generates additional fees, I request those fees before I finish the report. My stip and order does state that I am under no obligation to write the report, release a completed report, testify or perform any other services if I am not paid, and that is an order of the court which I have on file before I start." (California doctorate-level MHP, June 28, 2005).
132. See, e.g., note 59, supra, in which a MHP describes his work as a "funnel" and "condenser" through which he selects "important" data.
133. To glean an understanding of the issues and arguments involved in connection with the release and disclosure of test data,see generally, Robert E. Erard, Release of test data under the 2002 Ethics Code and the HIPAA Privacy Rule: A raw deal or just a half-baked idea?, 82 J. Personality Assessment 23 (2004), and Stephen Behnke, Release of test data and APA’s new Ethics Code, 34 Monitor Psych. 70 (2003).
Powerful psychology guild and test publisher interests, seeking on the one hand to protect the voodoo of expertise and the psychology industry’s monopoly on psychometric testing, and on the other hand, their publication sales, aided and abetted by state psychology boards and trade organization "ethics" (turf protection through the pretext of licensing and self-regulation) rules (and occasionally hoodwinked legislators and jurists) have posited many rationales over the years as to why MHPs should not have to release test materials or evaluatee’s responses under various circumstances. The rationales are largely pretextual, and in utter derogation of the due process of litigants subjected to these tests.
The immediate solution is obvious, given that the information that can be gleaned from these tests is of dubious value in a child custody case anyway: ban them unless the mental health of a party specifically has been placed at issue. But see, e.g. the politicking, note 72, supra, by organized MHPs against a bill attempting to do just that.
Also see the discussion in note 53, supra, and in the companion article, Custody Evaluator Quotes.
134. MHPs’ refusal (individually or organizationally) to disclose test data, or otherwise to render the obtaining of it cumbersome and expensive for litigants — who properly are entitled to cross-examine them on what frequently are inane conclusions ostensibly grounded on the data (and to prepare in advance of trial to do so) — is nothing short of an abomination.
[ANONYMOUS LISTSERVE COMMENT]: "Unfortunately, your opinion about the legal rules needing to supercede our ethics is just that, an opinion (which I daresay most of us on this list agree with). I would be more than happy to set aside psychological ethics in certain situations if the psychology board, our professional associations, and legal rules and procedures were consistent in regard to that situation." (California doctorate-level MHP, March 2, 2007).
[ANONYMOUS LISTSERVE COMMENT]: "Legal rules do not supersede our ethics in the case of disclosure of raw test data to attorneys." (Michigan doctorate-level MHP, March 3, 2007).
135. A primary reason expert testimony has been permitted in courts, notwithstanding its various problems vis a vis hearsay and due process confrontation rules is the belief of the non-expert judiciary in the probable reliability and relevance of such testimony, coupled with the presumption that the evidence on which the expert relies in forming his opinions not only would not necessarily be within the ability of the trier of fact to analyze, and/or also would be time-consuming and tedious to introduce into the court proceedings. In the case of family court MHPs, these notions are absolutely and dangerously false. The court’s "gate-keeping" function (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), reiterated as to non-scientific witnesses — which for the most part, these pseudo-scientists are — in Kumho Tire Co. v Carmichael, 526 U.S. 137 (1999)) is not only not being exercised, it is being blatantly violated by the routine appointment of MHPs in family law cases, and would be better exercised by courts’ flat-out refusal to do so barring extraordinarily rare and extenuating circumstances, and notwithstanding ill-advised statutes and procedural rules that permit them to do so (and which were themselves heavily lobbied for by the MHP make-work industries).
"Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that ‘illegitimate and unconstitutional practices get their first footing… by silent approaches and slight deviations from legal modes of procedure.’ Boyd v. United States, 116 U.S. 616, 635 (1886)… We cannot depart from this noble heritage." (A nice quote of the noble majority in in Miranda v. Arizona, 384 U.S. 436 (1966)).
No less is at stake in a family law case, which involves not only an analogous liberty of family interests but also too often these days, the actual bodily liberty of parents who are thrown into jail for various and sundry reasons, not permitted to freely relocate, and restricted and micromanaged in their relationships and association rights with their own children — all because they simply could not live together any more and one or both of them exercised their right to seek an adjudication of their issues in a court of civil law, and what could have been a fairly straightforward assignment of residence of their child(ren) to one or the other’s household and custody, along with a reasonable and workable visitation and access schedule for the other. For suggestions as to what "workable" might be, see generally, Emery, A Critical Assessment, supra, note 3, and Jana B. Singer & William L. Reynolds, A Dissent on Joint Custody, 47 Md. L. Rev. 497 (1988).
136. [ANONYMOUS LISTSERVE COMMENT]: "In our court the jurists readily acknowledge that they almost always go with our recommendations, whether because the additional data tends to confirm it, they have learned to trust us, or they’re ignorant/lazy. They rate "success" by whether the parties ever come back to court." (Doctorate-level MHP, April 11, 2002).
137. Discussed supra, note 71.
[ANONYMOUS LISTSERVE COMMENT]: "I have been retained to review a report prepared by a custody evaluator in NYC. The judge has ordered that I must appear in person in order to sign a statement (presumably, pledging that I will not disseminate the report, etc.) before the report can be released to me by the attorney who has retained me. The litigant whose attorney retained me will bear the costs associated with my errand’. The NY justice system at work." (New Jersey doctorate-level MHP, March 20, 2007).
138. [ANONYMOUS LISTSERVE COMMENT]: "Actually, you’re right, Liz: we do often do away with the lawyers, the judge, etc. The vast majority of these cases settle without ever going to trial after the evaluation is completed. And that’s often a good thing… You are free to believe that a traditional courtroom adversarial process between parents through their counsel in which the children are never heard from and barely considered and in which an overworked judge (who is usually in family court because of a lack of seniority on the bench — not any particular interest or experience in family law) occasionally looks up from his reading to listen to the lawyers’ arguments is a better way to devise parenting plans for children — but if you really want to uphold the great common law traditions, let’s at least start using juries in all custody disputes, as they do in the Lone Star state. As for myself, I do think that many custody disputes need a different procedural approach than disputes over commercial property, which is how the courts acting on their own tend to treat children in the system…" (Michigan doctorate-level MHP, December 9, 2005).
139. [ANONYMOUS LISTSERVE COMMENT]: "…No question that court-appointed psychological experts provide fewer due process protections in their offices than litigants will get in the courtroom, but once the case goes to court, the experts are only offering their opinions. They have no legal authority and it’s open season on their observations and conclusions. Their opinions need not be given any weight if the admitted evidence in the case differs from their factual understanding, if the criteria for their recommendations do not follow the law, or if the logic of their positions fails to hold up under cross-examination. The only thing interfering with due process at that point is poorly prepared lawyers and indolent judges." (Michigan doctorate-level MHP, December 9, 2005).
140. [ANONYMOUS LISTSERVE COMMENT]: "If in my custody matter (luckily I’ve never had one) an expert is going to be allowed to opine about where my children should live… I (and preferably the judge) should reasonably ask the following: Dr. before we allow you present your opinion, would you kindly present to the court the evidence that your discipline is in fact able to accurately identify best custody plans?" (New York doctorate-level MHP father, November 17, 2005).
"Pretending" — an example of: Barbara A. Babb, An Interdisciplinary Approach to Family Law Jurisprudence: Application of an Ecological and Therapeutic Perspective, 72 Indiana L. J. 3 (1997) ("The focus of judicial decisionmaking in family law needs to become how the state intervenes in family life, rather than whether the state ought to intervene.")