Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Forensic psychological assessments are often pivotal documents that can have a dramatic effect on the trajectory of a contested custody dispute and, ultimately, on the path that a particular child’s life will take post-disposition. These documents are often eagerly awaited because of their potential value in providing leverage for one side over the other and for their capacity to settle cases. Clients arrive at the clinician’s office often feeling as if their lives are in the hands of the court-appointed expert. Forensic reports arrive at court as documents that represent the application of a behavioral “science” and there is therefore a common expectation that the recommendations will be weighted heavily because they will go beyond common public knowledge or subjective value choices. It is the recommendations section that is often read first by those involved in the dispute because of its perceived impact. This article explores the limitations and applications of forensic psychology to custody evaluations. Those who argue that it is appropriate for psychologists to make specific custody recommendations offer, among others, the following rationales: An important component of a best-interests decision is the achievement of a family plan most likely to support a child’s emotional health and happiness. Who better to make such an assessment than a doctor skilled at understanding the factors that promote healthy emotional functioning in children? What professional, among those involved with a divorcing family, is better equipped to evaluate a child’s needs? Others state that it is simply unrealistic to assume that judges, professionals primarily trained in matters of law, can competently analyze and weigh the various issues related to the best interests of a child, issues that require a capacity to apply psychological knowledge. Judges need our recommendations, the argument goes, because psychologists know how to understand children and families in a way that judges do not. Unfortunately, few attorneys and judges are aware of the somewhat intense controversy occurring among psychological professionals about whether we should be making custody recommendations at all. Within the last few months, the National Register for Health Service Providers published an article for psychologists explicitly stating that clinicians should avoid making such recommendations, a stand congruent with that previously taken by eminent forensic psychologists in treatises on custody assessment. Some forensic ethicists have gone so far as to call for a general moratorium on the participation of psychologists in this area of clinical work. The American Psychological Association in its guidelines for practitioners (1994) also notes that “. . . the profession has not reached consensus about whether psychologists ought to make recommendations about the final custody determination to the courts.” AGAINST SPECIFIC RECOMMENDATIONS A defining characteristic of the expert witness is the notion that the expert’s discipline has specialized knowledge that goes beyond information possessed by the general public and mere common sense or logic. However, with regard to the capacity to make reliable and valid predictions about specific custodial schedules for a child, it is easy to argue that psychology as a discipline falls far short of what should be required of the expert witness. Literature is slowly developing about the benefits and liabilities associated with various custody arrangements for aggregate groups of children who are studied via research paradigms. Unfortunately, our capacity to translate this theoretical and empirical tradition into highly specific custody recommendations that can be shown to be reliably associated with positive child functioning is wholly unproven: It has not been established that specific custody recommendations, if followed, directly cause more positive child functioning than other plans that might be chosen. While our growing knowledge about the effects of various custody arrangements on children may eventually provide “broad-brush” guidelines for finders of fact, it is very unlikely that our field will ever be able to produce actuarial data or empirically reliable decision rules that would be able to take into account the host of unique, person-specific, and family-specific variables presented by real, living, and breathing families (e.g., How can we reliably assess whether a specific plan fits for a circumstance with a mother possessing certain traits, a father possessing certain traits, children with certain traits, sibling constellations involving different developmental levels, unique environmental stressors, etc.?). Although many clinicians are willing to offer highly specific recommendations that imply they are able to interpret such complex factors, most careful researchers would assert that our capacity to make such multivariate predictions is, at least at this point, unproven. In addition, what we do know via research is entirely correlational in nature because we are unable to assign children randomly to different custody arrangements in order to establish which plans cause which child outcomes under which conditions and in order to develop reliable decision rules. It has been asserted that even “hard” scientists cannot be value-free in their work. As a social science, psychological assessment and reasoning is even more infused with a valuing process that involves implicit assertions about things that are “good” for people, “bad” for people, and so forth. However, within the broad dimension of best interests, the chance for a clinician’s personal values, biases, social judgments, and subjective assumptions to be mistaken as objective and compelling science is quite real. While it may be possible for a psychologist to make a relatively objective assessment of certain custody-relevant dimensions (Is a parent depressed? Is a child adaptively attached to a parent?), it is the next level of assumptions often present in custody reports (the “shoulds”) that can become infused with the clinician’s values and subjective assumptions under the guise of “science”: Children should live with their primary attachment figure. Babies need to sleep in one primary home. Shared custody is bad for children if the parents are arguing frequently. Occasional alcohol abuse should eliminate a parent as a custodial option. Physical discipline is bad for children. While a clinician might be able to garner theory-based or empirical research support for such assertions, reasonable people can disagree about whether such assumptive guidelines should be “controlling” when making decisions about real families. Given their deeply subjective and value-laden nature, such assertions and the recommendations they are used to support are more appropriate for the finder of fact than for a psychologist operating within a forensic framework because their presentation within a psychological report, unless explicitly labeled as such, conveys an air of scientific objectivity about value-laden matters that is deceptive. It is the psychologist’s job to assess the “whats” of a family (e.g., What indications of impaired parenting capacity are present? What indications of pathologic parent-child relations are present?). It is the role of the judge to enter into the realm of the “shoulds” (e.g., Now that it has been established that there is a pathological relationship between this parent and this child, where should the child live?). NO AGREEMENT ON METHOD, THEORY There is no shortage of books and articles about preferred methods for assessing custody issues. A review of this literature yields certain consistencies in the prescribed evaluation protocols. What is most striking, however, is the number of differences among authors about important issues. Some say all parents should complete an intelligence test; others view this as a waste of clinical time. Some suggest exploring a child’s preferences; others view this as a dubious and highly risky clinical practice. Some suggest always having a joint session between parents; others view such sessions as unnecessary. While certain forensic writers encourage clinicians to interview extended family members, others downplay or omit such a procedure. Some clinicians are enamored with extensive batteries of projective and objective personality inventories; others view such protocols as only relevant for a small percentage of families. Our discipline even has heated and profound debate about the meaning and relevance of certain developmental theories that are often the central underpinnings of custody recommendations. Given that divorce psychology remains in its infancy, and given the extreme complexity of the psychological issues at hand in custody matters, it is no surprise that our discipline is evolving in its understanding of optimal assessment procedures and in how to apply its own theories. However, this does not vitiate the reality that a discipline should not be viewed as competent to render valid and reliable custody recommendations when it is unable to achieve significant consensus about appropriate behavioral-scientific techniques or about the application of its central developmental concepts. ETHICAL CONCERNS The ethical principles guiding the practice of psychology constrain psychologists to use assessment techniques, including interviews and tests, in a manner and for purposes that are appropriate in light of the research on, or evidence for, the usefulness and proper application of the particular technique. The capacity for psychological tests to assess certain aspects of individual and family functioning validly and reliably is well-established and, in certain areas, rivals the accuracy of medical tests. However, given the lack of evidence suggesting that the tests and interviews used by forensic psychologists actually predict positive or negative functioning for different custodial arrangements, it can be argued that making custody recommendations on the basis of such techniques could be considered unethical. Psychologists are also directed by the APA to recognize the limitations in their capacity to make clinical judgments or predictions and to indicate these limitations to the consumers of their reports. Following this guideline, one could argue that any custody report that contains an explicit custody recommendation should also include an explicit statement about the paucity, or, as some would say, the complete lack of validity, of data regarding such recommendations. Although there is a long-standing legal tradition of not allowing expert witnesses to testify to the “ultimate issue” before the court, such testimony has obviously been allowed and even encouraged within trial procedures for custody matters. However, it has been argued that any testimony by an expert witness regarding the ultimate issue before the judge is professionally inappropriate. According to this argument, even if there existed a theoretical blood test that could be administered to parents and children that perfectly predicted the best custody arrangement for a child, making explicit statements to a court about what should be done regarding this ultimate custody issue would still be inappropriate because it violates important role distinctions between judge and expert that need to be maintained and honored. The ultimate issue is a matter of law to be decided by an individual (the judge) who has been sanctioned by society as an agent of social control and as a decision-maker regarding socio-moral issues (the “shoulds”). Psychology as a discipline certainly has very useful information to provide that can assist the finder of fact in making such socially prescribed choices. Nevertheless, psychologists should avoid the understandably intense attempts to draw them into the role of explicitly making or recommending ultimate value choices. Our discipline is often perceived as providing a scientific service to the court, and the application of the scientific method to assessing families can provide a degree of clarity and objectivity among the dueling distortions about family life that are often memorialized in petitions and counter-petitions. However, moving from lower-level inferences (e.g., mother is depressed and therefore emotionally unavailable to the children; father is narcissistic and therefore limited in his capacity to see the world through his child’s eyes) to higher-level inferences (e.g., the mother in this family is less egocentric and should therefore be made the physical custodian) represents a highly subjective value choice about what is “best” for a child. It involves a comparison of varied patterns of “detriment” among an array of possible family arrangements. With two loving parents, one of whom is depressed and the other narcissistic, which of these two parenting detriments should be weighted heaviest in establishing the final access plan? Skilled clinicians could disagree about what is best or worst for a child in this circumstance. These ultimate choices should be viewed not as psychological in nature, but as socio-moral in nature and as therefore falling outside the purview of the psychologist and squarely in the lap of the finder of fact. In addition, custody decisions can involve a very complex and multifaceted decision about medical, educational, and financial issues that are related to, yet distinct from, those that are psychological in nature. Too many psychologists quickly assume a quasi-judicial role when they make explicit custody recommendations, forgetting that there are other dimensions outside of their discipline that must also be assessed. Forensic accountants are not allowed to express custodial opinions for obvious reasons. Although psychology is understandably viewed as one of the more important disciplines when custody decisions must be made, psychologists should not allow themselves to be drawn into a judicial posture about the data before them. WHAT PSYCHOLOGISTS CAN SAY Despite the profound concerns previously discussed about the process of making recommendations, the discipline of psychology has a wealth of information that can be helpful in the process of crafting child-sensitive access plans and to the process of cautious fact-finding. Forensic psychologists can report conclusions about a wide range of best interests-related dimensions and can do so in a manner that provides acceptably reliable guidance to the court without specifically saying what the court should do. Cautiously stated conclusions can be offered regarding, among other issues, attachment patterns, parenting capacity, tendencies toward substance abuse and violence, developmental considerations for access schedules, child temperament issues, and inferences about a child’s competence to reason about custodial choices. Psychologists can draw conclusions about such dimensions and outline implications for the children without telling the court that it should choose a specific access plan. It is the use of the scientific method, in the form of cautious hypothesis-testing, that separates the psychological discipline from more haphazard methods for gathering data and that allows the psychologist to draw the best interest-related conclusions that can be viewed as specialized knowledge rising above that which could be provided to the court by the general public. With certain families, a psychologist who employs this method might even draw conclusions about the relative psychological risks for a child associated with each home or parent or arrangement — without making a specific recommendation and while alerting the court to the limitations in our knowledge. A statement about the relative risks of different arrangements provides valuable information to the court without the implication, created by specific recommendations, of significant predictive power. In addition to such conclusions, psychologists can offer a very valuable investigative function for the court, given the fact that their training in interview and assessment, along with their skill at using the scientific method, puts them in a good position to help establish certain “facts” that can be quite relevant to a best-interests decision. In this regard, psychologists can help the court cut through the distortions and exaggerations often present in petitions and answering papers by facilitating self-disclosure from litigants about disputed parts of family history and by giving voice to a child’s desires and dilemmas. Finally, psychology is the one discipline with an intense commitment to the importance of empirically verifying the assumptions we hold about children and families. In this regard, the psychologist is in the unique position, on occasion, to inform the court about important needs on the part of children, which can be supported with objective research. Jeffrey P. Wittmann is a licensed psychologist, trial consultant, and writer who co-directs the Center for Forensic Psychology in Albany, N.Y. He provides professional training for mental health and legal professionals, and is the author of Custody Chaos, Personal Peace: Sharing Custody with an Ex Who Drives You Crazy (Penguin, 2001). Wittmann can be reached at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.