California Coalition’s racketeering lawsuit in United States District Court draws aim on several major Domestic Dispute Industry operatives—divorce lawyers, social workers, and judges. But perhaps the most outrageous and truly heinous crimes we’ve uncovered in our litigation and research are those committed by forensic child custody evaluators. We’ve elsewhere explained the legal frailties of the “best interests of the child” standard–professionals can start there. Here we offer a summary of a debate that occurred within legal and scientific journals beginning in about 2005 and continues to this day. The debate is fascinating—psychologists, lawyers, judges, and genuine scientists set out to answer the question: Do Child Custody Evaluations work? The answer? A resounding…
Whores of the Court
The introduction of Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice by Dr. Margaret Hagen describes child custody evaluations as follows:
Every year, more than a million children under the age of eighteen are affected by family dissolution. It is extremely hard to determine the total number of these cases in which child custody is disputed because many cases-even those involving court appointed or parent-hired expert child evaluators–do not go to trial. Nationally, it is certainly well into the hundreds of thousands.
Psychological professionals are hired by the warring mother and father or appointed by the court-often both-to evaluate the worth of both claims and claimants, absolutely and relatively. In a national sample of judges who hear custody cases that come to trial after the failure of bargaining between the divorcing spouses, 25 percent of the judges said that the testimony or report of a mental health professional is presented as evidence in a majority of contested custody cases in their courts.
The results of psychoexperts’ contributions to resolution of custody disputes are often quite a shock to the parties involved. Many previously unaware people are brought to a stunned realization of the awesome power accorded the professional psychological decision maker in our legal system. Accustomed not only to making their own decisions about what is in the best interests of their children, but to the respect society accords parents faced with those daily decisions as well, parents in disputed custody proceedings are often affronted and outraged to find themselves the target of a stranger’s evaluation for parental fitness. Bewildered and incredulous, they find that statements they make about their children, about their own lives, and about the lives of their ex-spouses will be weighed by a professional psychological evaluator frequently held by the courts to have a special lock on the truth.
With nothing else to go on in most of these trials other than the word of the psychoexperts so confidently it is crucial that we know the answer to these questions: Do all these hundreds of very expensive experts really know what they are talking about? Can the rest of us trust them? Can we rely on what they tell us to be the last word in scientific knowledge about the workings of the mind?
Alas, no. Psychology’s takeover of our legal system represents not an advance into new but clearly charted areas of science but a terrifying retreat into mysticism and romanticism, a massive suspension of disbelief propelled by powerful propaganda.
Thanks to the willingness of judges and juries to believe psychobabble with scientific foundations equal to horoscope charts, babble puffed about by psychological professionals with impressive credentials, what we’ve got now are thousands of self-styled soul doc- tors run amok in our courts, drunk with power, bedazzled spectacular fees for the no-heavy-lifting job of shooting off their mouths about any psychological topic that sneaks a toe into a courtroom.
The demand is great, the supply is huge, and the science behind it all is nonexistent. But the reality does not matter.
With the passage of well-intentioned and broad-reaching social welfare and safety net legislation over the last decade buttressing Americans’ willingness to buy into any claim made by a certified psychological professional-not just claims about trauma and our legal system today generates a virtually unlimited demand for services while the psychoexperts display an equally unlimited willingness to service those demands.
We want more certainty than that provided by rules of thumb, and we want more safety than that provided by our own limited experience. Thus modern Americans will embrace almost any psycholegal theory or claim that highly paid and highly arrogant experts spin on the witness stand. We and our judges are blinded by jargon, sounding credentials, and fancy degrees.
Does it drive all of us crazy to live with the myriad uncertainties that arise because the field of psychology is in its infancy and simply unable to answer-sometimes unable even to address-so many of the questions in our justice system for which definitive answers are desperately needed? Perhaps so. But relying on pseudo-experts who are simply not up to the job the courts demand of them will not fur- ther the cause of justice in this country. It will just make the whole system and the whole society sicker.
For all forensic psychologists who work one side of the court- room or the other, the job is lucrative. However, the idea that much of professional psychology’s move into the courtroom has been motivated by simple economic interest is not really all that alarming. Money is a motive we can all understand. As a society, we are used to people willing to do anything to chase a buck, and we understand them.
But we also must wake up to the fact that the present and growing dominance of psychology in the courtroom poses a graver danger to society than simple monetary corruption. Much of the pre- sent marriage of psychology and the law has been cemented by a virtually impregnable arrogance and institutionalized in both law and legal practice, and that is a scary thought indeed. Both the public and the practitioners themselves have been seduced into believing the pseudo-experts’ bunkum, have managed to get that bunkum written into law, and have effected a wide acceptance of a crucial judicial role for the bunkum artists as well.
THEY MUST KNOW WHAT THEY ARE DOING
There has been another critical factor driving what must seem to the public like almost criminal negligence on the part of the profession of psychology: Many experimentalists would argue that because numerous troubled people seem to find in therapy the help they need, it is not just permissible but perhaps even desirable to ignore its complete lack of scientific foundation. This has been a grave error, with wide-ranging con- sequences for the field of psychology and the public alike.
“Hey, he cured me. He must know what he’s doing, so I’m sure he can cure other people.” It seems reasonable, doesn’t it? I was better off after my time with a psychiatrist, so I assumed that the psychiatrist must have made me better. It follows that he must have known about what was wrong with me psychologically, what caused it and how to fix it, doesn’t it?
No. The effectiveness of a therapeutic approach in treating a disorder is logically unrelated to the validity of the therapist’s theory of causation of the disorder.
IT IS A TOUGH JOB
The abuses and excesses of so many child welfare specialists should not be allowed to obscure the indisputable fact that there are many decent, caring, hardworking professionals who do their absolute best with huge caseloads to help the children as well as they can be helped with the psychological tools available. It would be cruel and ungrateful and stupid to say otherwise.
The problem for them and for us is that the psychological tools just do not exist for them to do their jobs, and no one can or is willing to admit that. It is just too difficult to deal with the awful reality that in the three million annual cases of alleged abuse, our already overworked police forces would be called on to investigate and make determinations essentially without any evidence at all of where, with whom, and by whom abuse has occurred. Who can blame the police and the prosecutors’ offices-along with our courts-for wanting the assistance of professionals who know what they are doing?
It is just too bad that there are none available.
Both in custody cases involving allegations of grave risk to children in the home, and in cases arising where parents cannot agree on custody for reasons both profoundly serious and dismayingly foolish, our judges-our whole family legal system-desperately seeks guidance about where to find and where to place the best interests of the children involved. Agencies, parents, and judges alike turn to psychological professionals to help them find the truth or make their case.
Our common desperation seems to have produced the common delusion that experts actually exist who really can determine with the unerring instinct of a homing pigeon exactly where the best interests of a child lie, where a child should live, whether and how a child has been hurt, how a child should be protected, who will be the superior parent, and who is unfit to be a parent at all, who should have the right and the duty to care for a child, who should see the child only under restricted conditions, and who should be kept away from the child altogether.
Acceptance of their expertise has led us to trust professionals to make these decisions for the family court system. That means ultimately that we also grant them the power to make these decisions for our own families. The abstract need of society to protect its children becomes inevitably the rape of the rights of the real parents of individual children. Once again, the institutionalization of society’s desire to “do good” results in terrible harm for those in the path of the do-gooders.
The marriage of law and psychology has reached the heights of disproportionate power for the psychologists not just in family courts but in all legal disputes in which a psychological matter is at issue. Judges buy the validity of the expertise of the confident psychological practitioner and no doubt welcome the opportunity to make their own decisions on some foundation other than personal opinion and bias.
It is this understandable desire that has led to the recent explosion in our courts of cases alleging mental and emotional-psychic- injury, all requiring the expert testimony of the psychological witness.
The Call for Humility Symposium
In 2005 top Industry professionals—lawyers, psychologists, law professors, and judges—assembled to conduct an academic symposium to confront the issue. The Symposium, published as volume 42 of the Family Court Review sets forth the discussion, and its stunning conclusions.
Empirical And Ethical Problems With Custody Recommendations: A Call For Clinical Humility And Judicial Vigilance, 43 Fam. Ct. Rev. 193 (2005) by Timothy M. Tippins and Jeffrey P. Wittmann (hereafter “Call for Humility”).
Second Call For Clinical Humility And Judicial Vigilance: Comments On Tippins And Wittmann (2005), 43 Fam. Ct. Rev. 253 (2005) by Dr. Jonathan W. Gould and Dr. David A. Martindale (hereafter “Second Call For Humility”).
Listen To Professor Tippins and Dr. Wittman Debate the Symposium Live at AFCC’s 2006 Atlanta Child Custody Conference
Family Law attorney, Professor of Law, and expert witness Timothy M. Tippins, J.D. and child psychologist Dr. Jeffrey P. Wittman lead the symposium with a paper entitled Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance. Prolific clinical psychologists, academics, lawyers, and experienced family court judges within the industry were invited to participate. They produced nine articles, attached. Portions of the Symposium’s debate and follow-on articles are excerpted below organized by subject to facilitate comprehension.
Role of Child Custody Evaluations
Forensic psychological assessments in contested custody matters are often pivotal documents that can have a dramatic effect on the trajectory of the litigation and, ultimately, on the form a particular child’s life will take after judicial disposition. The courts afford culturally sanctioned weight to behavioral science, and 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 move cases toward stipulation. Indeed, recent empirical work has confirmed the high perceived value of clinicians’ involvement in matrimonial matters by both attorneys and judges (Bow & Quinnell, 2004) despite earlier findings that suggested a less favorable view by legal professionals (Felner, Rowlison, Farber, Primavera, & Bishop, 1987; Melton, Weithorn, & Slobogin, 1985).
Call for Humility notes that “one of the components most valued by legal consumers is a specific recommendation for custody and that the overwhelming majority of judges and attorneys believe that psychologists should directly address the ultimate issue before the court.” The article notes, however, that the “ultimate issue before the court” (ordinarily the “Best Interests of the Child” standard) is not something that psychological training or skill can determine. They note:
This later belief is incongruent with the ongoing controversy about whether evaluators should make such specific recommendations, a controversy that caused the American Psychological Association itself to hedge on the issue in its Guidelines For Child Custody Evaluations In Divorce Proceedings (APA, 1994) and that has caused some scholars to draw the conclusion that this practice should cease altogether due to the serious limits of the psychology discipline’s knowledge base on custody topics and due to philosophical and legal arguments against ultimate issue testimony in general.
Tippins & Wittman express alarm that even though up to 94% of evaluator recommendations are not based on science, they are still offered to courts and litigants in processes that have a dramatic impact on the litigants’ lives.
Given the enormous impact that custody evaluations can have on the lives of litigants and their children, and given the remarkable limitations on the underlying professional knowledge base and lack of consensus as to uniform methodology, it is important to examine these opinions within the framework of the law of evidence that governs admissibility. Notwithstanding the increased attention to the gatekeeper responsibility of the trial court sparked by the U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals (1993), custody opinions by mental health witnesses have largely escaped the serious judicial scrutiny of reliability and relevance that is so central to the fundamental question of admissibility. As one scholar has trenchantly noted, “It is striking that one of the most important categories of cases, the future of our children, has ignored the call for trial judges to address threshold scrutiny of the reliability and relevance of expert testimony” (Shuman, 2002, p. 139).
Tippins and Wittman note that one reason the custody evaluator’s opinions are not empirically based is because the “best interests of the child” is simply not a scientific—or even factual—issue. It is what they call a “socio-moral” notion—words adopted by a legislature, but having no capable means for determination as a matter of fact.
The best interests standard is a legal and socio-moral construct, not a psychological construct. There is no empirically supportable method or principle by which an evaluator can come to a conclusion with respect to best interests entirely by resort to the knowledge base of the mental health profession. In this regard, Melton et al. (1997) have noted that “there has been remarkably little research meeting minimal standards of methodological rigor about the effects of various custody arrangements on children and families of different characteristics” (p. 484). Krauss and Sales (1999) observed that “… few studies have focused on the directly relevant legal questions or used the methodological rigor that is necessary for a psychologist to offer exclusively science-based opinions on the best interest of a particular child” (p. 89). O’Donohue and Bradley (1999) called for a moratorium on all participation by mental health professionals in the child custody arena because “… the mental health professional currently cannot ethically conduct these evaluations.” In so doing, they refer to “the lack of empirical research that clearly identifies relevant variables involved in child custody and their possible causal or correlative relationships to key outcomes.”
The custody court is confronted with the challenge of determining with which parent the child’s interest will best be served. Sometimes this involves selection of the “better” parent. Too often, the court must choose the one who is less “bad.” There is no empirically verified psychological construct of “good parent” or “bad parent”, let alone a construct for the comparative analysis that the court is called upon to perform. While we have established certain correlations between parenting style and child outcome, “good” and “bad” are socio-moral constructs that, by definition, are not within the purview of psychology as a behavioral science.
Call for Humility describes four “levels”, or types of observations necessary to reach a “best interests” opinion, and how a psychologist’s training can, or cannot, inform each “Level”:
In an attempt to simplify, for discussion purposes, the very complex clinical process involved in custody assessments, we would propose the following stratification of the data and inferences garnered by clinicians in these matters:
Level I (What the clinician observes). This category includes anything that the clinician observes with his/her senses, without the addition of higher-level abstractions about the observations. Included in this category would be comments in a report such as “She hung her head low and was often tearful,” “Aaron clung to his mother’s leg throughout our session,” “There is an elevation on scale two of the MMPI-2,” and “Father would not compliment mother in any way regarding her parenthood.”
Level II (What the clinician concludes about the psychology of a parent, child, or family). This category includes inferences and higher-level abstractions about what was observed in Level I without reference to custody/best-interests constructs. Examples would include the following: “Jacqueline’s attachment to her father appears quite insecure,” “Ms. Jones has strong tendencies toward substance abuse,” “Father’s style of parenting is very authoritarian,” or “Mother’s blue mood, the child’s report of her chronic sadness, and her MMPI-2 elevations suggest the conclusion that she is moderately depressed.”
Level III (What the psychologist concludes about the implications of Level II conclusions for custody-specific variables). At this level, the clinician typically uses an even higher level of abstraction about the case, making reference to custody-specific constructs such as global “parenting capacity,” “potential psychological risks of primary custody with father,” the “fit” between a child’s needs and a parent’s “parenting capacity,” and so forth. Level II inferences about individual or family psychology (“Mother is depressed,” “There is an overly close father–son alliance against mother,” etc.) are used in Level III to make inferences specifically relevant to custody and access issues (e.g., “Multiple days away from mother, this child’s primary psychological parent, will be emotionally stressful,” “There is a poor fit between Jason’s need for parental empathy regarding his ADHD and his father’s blunt and authoritarian approach,” etc.). At this level, therefore, the psychologist is still not making overt comments about what should happen in a family (as in the “shoulds” of Level IV), but the inferences drawn begin to have more clear connections to the ultimate issues before the court and therefore, by definition, also begin to have greater potential impact on judicial decisions regarding important personal liberties (e.g., the right to have access to one’s children, the right to do so unencumbered by supervision, the right to make decisions regarding a child’s medical care, etc.).
Level IV (The psychologist’s conclusions about the custody-related “shoulds” in the matter). Here, the clinician takes the Level III inferences and presents prescriptive conclusions about what access schedule and other plan parameters (e.g., supervised contact, etc.) should be put in place by the court. Although Level II and Level III include *195 a certain level of value judgment on the clinician’s part (e.g., “It is better for a child to not display depressive or aggressive symptoms than to display these symptoms”), it is at
Level IV that the value judgments become much more overt, prescriptive, sweeping, and potentially life-changing for the litigants. There is a shift at this level from lower-level assessments of the “whats” in the matter, to taking overt positions about the “shoulds” (with the implication exuded by the “expert witness” status that behavioral science has been brought to bear on the process of achieving a specific, prescriptive recommendation about a child’s postdivorce life).
Tippins and Wittman explain that psychologists are capable of providing input at Levels I and II, and sometimes III, but that they can provide no input whatsoever at Level IV, simply because such questions are not capable of resolution by resort to any science, no matter how perfect.
We are in agreement with forensic scholars who conclude that clinicians should routinely avoid addressing the ultimate issue before the court in the form of a specific recommended access plan (e.g., Karras & Berry, 1985; Melton et al., 1997). Drawing conclusions about the ultimate issue before the finder of fact blurs critically important boundaries between the person invested with the power to make socio-moral and social-control decisions (the judge) and the expert witness who is hired to assist the court (e.g., the psychologist). This argument holds that, even if one were to develop a family blood test that could perfectly predict the custody plan that would lead to the best psychological functioning on the part of a child, clinicians should still refrain from making that specific recommendation (although they might be able to say many things at Levels I, II, and III to “tip their hand”). A clinician might be able to say that “the family custody blood test” predicts with 99% certainty that primary custody with mother would lead to less behavioral disturbance on the part of the girls in this family. However, specifically saying “therefore, the court should place the children with their mother” would still arguably be inappropriate. We are not prepared to assert, and it is beyond the purview of this article to consider, that the policy judgment of Federal Rule of Evidence 704 and its common law parallels generally permitting ultimate issue testimony should be repudiated. However, it is imperative that mental health witnesses carefully circumscribe their testimony so as not to blur the critical distinction between the function of an expert witness to expound from the specialized knowledge base (i.e., the “whats”) and that of the judge to make the ultimate legal-socio-moral determination (i.e., the “shoulds”).
They explain the analytical dilemma facing a forensic psychologist asked to give a “best interests” opinion:
[W]hen clinicians make a custody recommendation they are essentially portraying themselves as knowing the best plan for a child after answering the question “What initial state of mother, father, children, extended family, and other important relationships, and what contextual variables, when considered in the context of the scores of potential access plans for a given family, will result in what later negative or positive state in the children?” To say that the mental health profession is inadequately prepared to make such multivariate decisions is an understatement, yet day in and day out forensic reports imply that we are quite able to do so.
Another way of stating the dilemma at this level is the following: there is no evidence in the empirical literature that current interview protocols, traditional psychological tests, or custody-specific tests are in any way able to reliably predict child adjustment to different access plans, yet 94% of evaluating psychologists still make such recommendations (Bow & Quinnell, 2004).
Tippins and Wittman call for what they call “clinical humility”; an industry-wide recognition of the shortcomings of forensic child custody capabilities and testimony based thereon. They conclude that until more empirical foundation can be built—if such is even possible—evaluators cannot ethically offer the types of opinions they are presently offering.
Accordingly, it is both appropriate and necessary to hold the mental health witness accountable for the application of empirically supportable principles and methods. The courts have both the right and the obligation to insist that the experts whose opinions can change lives in dramatic fashion support each and every one of their inferences with specific empirical evidence. In other words, the legal system must demand that the premises and reasoning of the expert be scientifically valid. The deep schism between the scientists of the profession and the romantics ought to be of critical concern to the legal profession when assessing admissibility. When a court assesses the general acceptance issue, under either Frye or Daubert, it must look to those within the profession who adhere to the scientific method and who insist upon empirical verification of their premises and conclusions.
Unfortunately, “scientifically minded clinicians are becoming a rapidly dwindling minority within their profession” (Lilienfeld, Lynn, & Lohr, 2003, p. xi). Indeed, the term “schism” may be too mild to describe the phenomenon. “Today, however, calling it a ‘gap’ is like saying there is an Israeli-Arab ‘gap’ in the Middle East. It is a war, involving deeply held beliefs, political passions, views of human nature and the nature of knowledge, and–as all wars ultimately involve–money, territory, and livelihoods” (Lilienfeld et al., 2003, p. xiv).
Tippins and Wittman conclude:
Notwithstanding the strong case that exists that it is unethical for mental health witnesses to tender specific custody recommendations and that their admission at trial violates fundamental evidentiary doctrine, it would be a mistake to blame the current situation solely on the mental health profession. That profession is simply responding to the demand of the legal consumers, the lawyers and judges who actively seek such invalid opinions. Privately, many evaluators will acknowledge that they deliver these recommendations with great internal reluctance, but yield to consumer pressure for fear of being out of business if they refuse.
Psychologists frequently assume roles in which they’re expected to offer opinions, even though uncertainty is enormous and the scientific knowledge base is extremely limited. For example, *217 in custody evaluations that involve reasonably normal individuals, it’s often impossible to know which parent will provide a child with a better environment. Research in this area is limited, and there are few or no well-validated procedures for arriving at recommendations. … Nevertheless, the lawyers and judges in such cases often press psychologists for a firm opinion. Under such demands, psychologists sometimes resort to unvalidated procedures. The reasoning seems to be that any test, even one of dubious validity, will perform better than merely flipping a coin (Wood et al., 2003, p. 297).
The legal system has both the right and the duty to exclude opinions that are not supported by good science.
Industry Response: “We Agree, But…”
Tippins and Wittman’s article, provocative as it’s conclusion was, generated no challenge to its central thesis that child custody evaluations have no basis in science. The academics, practitioners, and officials participating in the symposium largely agreed
with Tippins and Wittman’s observations.
For example, Dr. Joan B. Kelly and Dr. Janet R. Johnston acknowledged that “the custody evaluation and related judicial decision has the potential to change the entire course of children’s lives, including the extent and meaningfulness of their parent-child relationships, emotional and social adjustment, school functioning, and economic well-being” and that “Tippins and Wittmann’s concern and caution are warranted, and should serve as a clarion call to the entire family law field involved in custody and access determinations.” They summarize their parallel experience:
The authors’ four-level conceptual model for stratifying data and clinical inferences provides a helpful framework for mental health and legal professionals to examine the evaluation process, whether or not one agrees with their conclusions. Custody evaluators without sufficient scientific training are unaware of the serious limitations of the data they collect, the validity of the testing instruments they use, or the rigor needed to make inferences and draw conclusions from this information. Instead, the authors contend, such custody evaluators are more likely to make inferences and recommendations from unsubstantiated theory, personal values and experiences, and cultural and personal biases. Our own observations and reviews of evaluations over several decades lead us to the same conclusion. Common examples include unexamined strong beliefs in the primacy of mothers (or essentiality of fathers) regardless of the circumstances, biased perception of their clients derived from their own negative marital and divorce experiences, or a conviction that joint physical custody benefits (or harms) all children.
Two other leading researchers in the field, Dr. Jonathan W. Gould and Dr. David A. Martindale, echoed support from their own writings paralleling Call for Humility:
We share their concerns about overreaching by mental health professionals in offering to the court specific residential placement recommendations that purport to address the best psychological interests of a child when such recommendations have little, if any, scientifically informed foundation.
Gould (1998) has cautioned about the certainty with which mental health professionals present recommendations to the court. Specifically, he has opined:
Our tools are often not valid for custodial assessment. Our models are often rationally, not empirically, derived. And our opinions are more educated guesses than truth. We need to be careful in how we present our data and opinions to the court so as not to mislead (p. 38).
Martindale (2001) has written:
The defining attributes of an expert opinion 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 (p. 503).
We agree with Tippins and Wittmann that in discussions of the value (or lack thereof) of advisory reports from custody evaluators, reliability and relevance should be the focus. When assessment tools are unreliable, the information obtained is untrustworthy. When information is untrustworthy, we cannot know its relevance.
Only if our work rests on a sound foundation, and only if the methods employed by us are reliable, can we provide the assistance that courts seek.
We agree with Tippins and Wittmann that psychologists have an ethical responsibility to our profession and a moral obligation to those whom we serve to use the best informed scientific research to guide our choice of assessment tools and to guide our recommendations about parenting plans.
We agree with Tippins and Wittmann that it is unethical for mental health professionals testifying as experts to offer opinions based merely upon clinical hunches.
History of “The Elephant in the Room”
Gould and Martindale note that Tippins and Wittman’s criticism of forensic psychologists in custody evaluations has been voiced within the profession for over a decade.
Tippins and Wittman are not the first to publicly register some strong criticisms of the procedures employed by custody evaluators or the opinions expressed by them. In 1987, in their much-cited work Psychological Evaluations for the Courts, Melton and his colleagues (Melton, Petrila, Poythress, & Slobogin, 1987), commenting on our assessments of comparative custodial fitness, declared:
Indeed, there is probably no forensic question on which overreaching by mental health professionals has been so common and so egregious. Besides lacking scientific validity, such opinions have often been based on clinical data that are, on their face, irrelevant to the legal questions in dispute. Indeed, whatever position one might take on the ultimate issue rule with respect to other species of expert testimony, such opinions by mental health witnesses on the ultimate question of a child’s best interest ought not to be allowed. . . . The best interests standard is a legal and socio-moral construct, not a psychological construct. There is no empirically supportable method or principle by which an evaluator can come to a conclusion with respect to best interests entirely by resort to the knowledge base of the mental health profession.
Grisso notes that Tippins and Wittman’s “call” has been expressed within the industry “over the past three decades,” but “experts’ practice in child custody evaluations apparently has not responded to earlier appeals.” Girsso notes that “academic” psychologists and traditional professionals have repeatedly rejected the professional standards of custody evaluators.
Yet repeated haranguing of practitioners has only limited value, especially when its tone widens the gap between practitioners and their academic critics, thus reducing their collaborative potential to solve the problems. The field’s resistance to improvement suggests that there are underlying issues that are impeding progress toward improvements in practice and that need attention before proposals for reform can make a difference.
Gould and Martindale acknowledge that firm scientific foundations are necessary for admissibility in a court of law, yet express dismay that the profession largely ignores this requirement, causing harm to families in the process.
Expert testimony is admissible only if it is “the product of reliable principles and methods” (Fed. R. Evid. 702). One of the most difficult tasks for a judge is to distinguish between acceptable and unacceptable practices by qualified members of a legitimate discipline (Gross & Mnookin, 2003). We are somewhat discouraged by the fact that many of our colleagues continue to utilize indisputably unreliable assessment techniques. Harm comes to families when, even under cross-examination, methodological deficiencies are not brought to light, untrustworthy data are not identified as such, and the opinions based on these flawed data are utilized in constructing parenting plans.
They note, with alarm, that “specific custody recommendations are often allowed into testimony because that is what is done within the field or within the jurisdiction. Opinions that are expressed with a high level of confidence, and that outline specific custodial arrangements for particular children, are not grounded in science. We concur with Tippins and Wittmann in their call for professional humility.”
The Bow and Quinnell (2001) survey data, cited by Tippins and Wittmann, suggest that the vast majority of custody evaluators are offering opinions that lack empirical support in the published literature. It seems reasonable to hypothesize that most custody evaluators believe that no change is needed, either in our methods or in the manner in which we communicate our findings and opinions to courts. We disagree with those who see no problem and concur in Tippins and Wittmann’s view that the elephant in the room must be discussed … if not shot.
Many other researchers have expressed similar concerns. In an article entitled Protecting Children From Incompetent Forensic Evaluations And Expert Testimony, 19 J. Am. Acad. Matrim. Law. 277 (2005), by Mary Johanna McCurley Kathryn J. Murphy Jonathan W. Gould state:
Unfortunately, CCEs frequently fall below recommended practice methods promulgated by the American Psychological Association (“APA”). Commentators have criticized the quality, reliability, and utility of CCEs by noting the lack of scientific methodology, empirical grounding, and psycholegal relevance common among these reports.4
Some child custody evaluators do not adequately understand the distinctions between a therapeutic and a forensic role. Furthermore, much of the testimony offered by child custody evaluators is based upon clinical impressions uninformed by empirical research, yet presented as empirical science.
One Family Court judge in the dialogue, Hon. Arline Rotman, Associate Justice in the Massachusetts Probate and Family Court from 1988-2000, a past president of the Association and Family and Conciliation Courts, a fellow of the American Academy of Matrimonial Lawyers, and a member of the Family Law Sections of the Massachusetts and Boston Bar Associations, suggested that Call for Humility didn’t go far enough:
It is generally agreed within the legal profession that custody evaluators wield too much influence in a contested custody case. Whether or not specific recommendations regarding access plans should be included in their report is a subject of much debate, although it has long been my opinion that such specificity is a clear invasion of judicial responsibility.
I would suggest, however, that Tippins and Wittmann do not go far enough in their call for reform. Even if we were to adopt all eight of their recommendations, including barring Level IV testimony on the ultimate issue, we would still be faced with the problem of custody decision making based on inadequate and untested evidence.
Judge Rotman notes that psychologists often attempt to introduce fraudulent evaluator testimony, but because family lawyers are inadequately prepared to cross-examine the expert, incompetent opinions go unchallenged.
Unfortunately, there is little a judge can do when evidence comes in unchallenged by a lawyer. If, for example, a psychologist administers a battery of psychological tests not relevant to the issue of the case, that portion of the report and any opinions linked to the results of the test, should not be admitted. . . . It is painful to preside over a case where evidence that should be excluded is allowed in without objection. It is even more painful to watch a lawyer attempt to challenge evidence in a less than competent manner. Until lawyers master necessary trial skills, psychologists will be free to opine on matters beyond their expertise.
In Third Call for Humility, Tippins and Wittman confirm Judge Rotman’s point, noting that “leave the potentially more fertile ground of empirical basis untilled simply because they lack the training to pursue this issue.” They express concern that the current lack of judicial “gatekeeping” is resulting in incompetent opinion testimony going “rubber stamped” by a family court judge.
Defense of Current Practices: The Other Side of the Coin Explains Itself
Those defending evaluations advanced several reasons. Tippins and Wittman responded in kind in a second paper also published as part of the Symposium entitled—identified above as Third Call for Humility. The debate is organized by response/reply per topic to facilitate comprehension.
“Sure They’re Bad, But They’re Better Than Everything Else”
Kelly and Johnston took issue with Tippins and Wittman’s call for a “moratorium” on child custody evaluations, claiming that “the alternatives are dismal, even destructive, and may cause even more harm to families and parent-child relationships. We do not agree that judges should be left to make the final decision without any input from custody evaluators or others about what is considered to be “in the best interests of the child.” In the face of this vague legal mandate, judges are even less qualified in training and experience than are mental health professionals to address this question without undue influence of their personal biases.”
These Psychologists acknowledged that Psychologists were incapable of giving “best interests” opinions, but asserted that judges are even worse. They expressed fear that judges, without guidance from Psychologists, will take guidance from “prescriptive guidelines” such as statutes, equal parenting concepts, or an ad-hoc solution that is “one size fits all” such as “every other weekend, holidays, etc.” and that these solutions are inferior to a psychological opinion. They also express fear that “political and professional interests groups” will influence judicial decision-making, and that this policy-level guidance is inferior to psychological opinion.
In the absence of recommendations by custody evaluators who have considered each child and family situation in great depth, judges and legal advocates will probably rely more and more on prescriptive guidelines (like primary residence with one parent and every-other-weekend with the other). It is even more likely that judges’ decisions will be governed by presumptions that will increasingly be cast into statutes by political and professional interest groups with access to the state legislatures (like the American Law Institute’s approximation rule, or a primary parenting presumption advocated by women’s lobbyists, or joint parenting presumptions touted by fathers’ rights groups). These prescriptive rules and presumptions are not research based and they do not consider the individual needs of children and variations in parent-child relationships. Rather, they are simplistic answers, a one-size-fits-all substitute for the vexing question of what is in the best interests of each child.
Kelly and Johnston acknowledge the lack of science behind the recommendations, widespread poor quality of opinions, and general lack of training in the field. They conclude however that the solution is not a moratorium, but:
- More training for Forensic Psychologists;
- More stringent professional practice standards,
- More disclosure by evaluators to parents, courts, and lawyers of the severe limitations on their opinions; and
- Ceasing evaluations in all but “serious allegations of family abuse, domestic violence, substance abuse, mental illness, and severe character pathology.”
Tippins and Wittman replied to Kelly and Jonston in Third Call for Humility. They note that there is no research supporting the conclusions that “one-size fits all”, policy-input, or the simple lay-intuitions of family court judges are any worse (or better) at determining outcomes in custody decisions.
Their position is that our call for a moratorium on recommendations may create even more risks for divorcing families. This seems to rest upon an implicit assumption that the current state of affairs, wherein evaluators choose specific custody plans in the absence of evidence that they can reliably do so, thus altering children’s life courses and truncating fundamental parenting rights, poses little or no risk to those families. That assumption is not necessarily valid. In fact, whether children and families are better off with or without explicit recommendations is an empirically unanswered question and, therefore, we would posit that such an assumption is at least questionable.
In short, in the absence of longitudinal tracking and feedback with respect to the developmental outcomes of children whose custody has been determined on the basis of forensic recommendations, we do not know whether those recommendations have worked or not worked, or how much unwitting harm they may have inflicted.
This unfortunate dynamic has made mental health professionals inappropriate arbiters of social, moral, and cultural values, denoting a marked departure from the noble empirical roots of their discipline.
[T]here is no evidence that the social scientist is any better placed to accurately and validly answer that question than is a judge or, for that matter, than is a mail carrier.”
Tippins and Wittman note that most of the “historical” research identified by Kelly and Johnston is little more than rudimentary Level II research, and that extrapolation from that evidence to Level III or “ultimate question” level IV conclusions is inappropriate: “It is here too that the risk of inappropriate infringement on human liberties soars.”
Given that psychological evaluators are themselves operating under color of state authority, the observation of a “soaring” infringement on parental rights—while perhaps lost on their Psychologist colleagues—is of critical import for the lawyers and judges handling the evaluation. Moreover, the very real harm likely from such “services” risks severe and certain injury to parents and their children in the form of (wasted) costs, time, and increased recriminations and hostilities.
“But the Real Clients–Judges–Want Them Anyway”
Several authors note that the demand for custody evaluations is driven by judges seeking assistance in the impossibly complex “best interests” determination. Dr. Grisso notes that “judges favor the availability of expert opinions about the ultimate legal question.” “[W]hen judges seek answers, they are likely to be more receptive to hearing from the expert who proclaims s/he has the answers than from the expert who opines that the answers are elusive. Particularly where the issues are complex, the expert who offers facile solutions is perceived as being helpful.”
All writers acknowledged that family court judges—as the true “consumers” of custody opinions—aren’t interested in “qualified” or “cautious” scientific testimony, but want firm opinions. They note that if evaluators do, in fact, obey their duties and withhold speculative, unscientific opinions, the “consumers” will just find other psychologists who will satisfy this demand:
First, when judges seek answers, they are likely to be more receptive to hearing from the expert who proclaims s/he has the answers than from the expert who opines that the answers are elusive. Particularly where the issues are complex, the expert who offers facile solutions is perceived as being helpful. The expert who declines to speculate may be perceived as uncooperative. Many practitioners, appreciating the cogency of the Tippins and Wittmann perspective, may contemplate a change of course with apprehension. It may be felt by some that if responsible practitioners refuse to offer the answers that are sought, less qualified practitioners will quickly fill the void and no benefit will be derived. As is true elsewhere in our society, the services offered by mental health professionals and the methods employed in providing those services are, to a large extent, consumer driven. Tippins and Wittmann have called for “clinical humility and judicial vigilance.” At the risk of appearing immature by stating, “You go first,” it seems to us that when judges and attorneys become more vigilant, clinical humility from mental health professionals will quickly follow. If judges and attorneys (as the consumers of forensic mental health services) encourage evaluators to ignore the limits of an empirically established specialized knowledge base, only the atypically conscientious will resist the economic incentive to provide that which has been sought.
Dr. Grisso notes that exacerbating the problems associated with abiding professional, moral, and legal restrictions is the fact that judges seem to be quite insistent that the contrary is necessary to achieve their own broader goals.
Looking to the law to solve the problem of conclusory (fourth-level) testimony is not likely to work for two reasons. First, there is a fair amount of evidence that judges favor the availability of expert opinions about the ultimate legal question (which requires a fourth-level inference; for a discussion, see Chapter 18 in Melton et al., 1997). This need not always be so. Many of us know judges who will not allow experts to testify to the ultimate legal question. Yet, the weight of judicial opinion on average appears not to produce fertile ground for sowing the seeds of reform that would prohibit fourth-level expert testimony.
Moreover, Grisso notes that the legal profession has already adopted widespread reliance on forensic psychology testimony in many other areas:
The second reason that legal circumstances are not favorable for banishing level-four testimony in custody cases is its general acceptance across almost all other areas of law in which psychological testimony is involved. For example, these include fourth-level opinions on criminal responsibility, competence to stand trial, sex offender recidivism, and a host of other forensic issues for which opinions about the bottom line are expected and admitted as evidence in most jurisdictions. To prohibit it in one area of law– child custody cases–but to allow it in others would require some compelling argument that Level IV opinions in child custody cases have far less empirical support (and thus less probative value or more prejudicial impact) than in these other areas of forensic expertise.
Tippins and Wittmann’s statement that “there is not one piece of research … that supports the notion that clinicians can reliably and validly … [make] recommendations that are correlated with positive child adjustment” (Tippins & Wittmann, 2005) could be repeated for many other areas of forensic evaluation. For example, there is also “not one piece of research that supports the notion” that clinicians can reliably and validly determine whether defendants could “appreciate the consequences of their acts” or “conform their behaviors to the requirements of law” at the time of their offenses, which are the Level IV inferences to which forensic psychologists and psychiatrists routinely testify in criminal cases involving the insanity defense. Just as there has been no groundswell of judicial scrutiny regarding the reliability and validity of Level IV inferences in child custody cases, there also has been no serious legal challenge regarding their testimony about the bottom line in many other types of forensic cases.
A forensic mental health evaluation is generally conducted by a mental health professional whose authority is established by court order.12 The evaluator is responsible to–and is, in effect, an arm of–the appointing court, even if the parties have to pay for the evaluation.13 In some jurisdictions, evaluators are immune from suit by litigants because they are part of the judicial process.14 Mental Health Consultants and Child Custody Evaluations: A Discussion Paper, 49 Fam. Ct. Rev. 723, 725 (2011)
Other researchers have agreed. See William G. Austin, Responding to the Call for Child Custody Evaluators to Justify the Reason for Their Professional Existence: Some Thoughts on Kelly and Ramsey (2009), 47 Fam. Ct. Rev. 544, 545 (2009):
I would add that the satisfaction of judges should be measured in any research since the court is a consumer of forensic mental health evaluations (FMHE) and the gatekeeper of expert work. In most situations, evaluators are court-appointed so they are the court’s expert. There is no client as there is in clinical work. Experts are best viewed as part of the legal case and process. They are performing a service for the court, even though the quality of their work has a direct effect on the child and family. Legal and mental health practitioners encounter great variability in judges’ attitudes about custody evaluations and expert opinions. The majority of family court judges probably place great value on their experts and are more than a bit daunted by the enormity of their responsibility concerning the welfare of the children. They look towards the keepers of specialized knowledge. They want to be educated about issues and research. They want an expert who is knowledgeable about domestic violence, substance abuse or child alienation.”
Like Gould, Grisso also observes to perceive that it is “the law”—and not science—that is driving the demand. “The message here is that the field of child custody evaluations cannot go forward alone to resolve its legal and ethical dilemmas. What the law will accept or disallow in this area may depend on legal precedent in the use of forensic psychological experts in other areas *226 of law. Perhaps the battle cannot be won without strategic collaboration with the broader fields of forensic psychology, psychiatry, or social work.”
Grisso concludes: “So, after thirty years of calls for reform, one must believe that it will take something more than arguments, harangues, and published guidelines–even the best of them–to bring about a change in practice. The real world will not yield to logic until some practical dilemmas are faced and resolved.”
Third Call for Humility Responds:
Judges may prefer to hear many kinds of testimony, but judges are not laws unto themselves. An individual judge may, because of his or her personal metaphysical belief system, prefer to hear from astrologers or necromancers. Yet, as gatekeepers, they are duty-bound to exclude any such proffer by applying the rules of evidence as they have been fashioned either by common law or codified by legislatures or rule-making authorities. . . Certainly, such safeguards are no less important when the rights of parents and children are at stake.
[N]ot much will change until the courts begin to do what they *272 should have been doing all along—carefully scrutinizing the basis of the opinions that are offered by forensic experts to ensure that a strict standard of evidentiary reliability, designed to ensure due process and to protect human liberties, is observed.
Margaret Hagen’s Whores of the Court adds:
The driving force behind the proliferation of child custody evaluators has not been an advance in the science, but demand from the courts, lawyers, and the lay public who, having been asked to perform the impossible—determine the “best interests of the child”—reach out to those who one would naturally assume would have some advanced skill in matters of the human mind. The incontrovertible evidence shows, however, that psychologists possess no more skill at determining “best interests” than do judges, lawyers, or laypeople. The simple reason: “best interests” is simply not achievable.
The system is a nightmare of misrepresentation and injustice, of fantasy and distortion. It must change.
“You Don’t Understand, Custody Evaluations Are an Art, Not Science”
Some researchers disclaimed any claims to science, but proclaimed the value of opinions as an “art.” Tippins and Wittman respond:
Notwithstanding the fact that mental health witnesses sometimes attempt to escape the clutches of cross-examination by claiming psychology is not a science, but an art, or a hybrid of art and science (Gould, 1998, p. 53), a claim that carries many other evidentiary implications, none of which operate in favor of admissibility, the mainstream view or consensus within the profession is to the contrary.
“Just Take it for What its Worth” (Martin)
One writer added that judges can “take it for what it’s worth”—admit the opinion and weigh its evidentiary value. Third Call for Humility rejected this solution:
However, we disagree with Martin’s assertion that higher-level abstractions that overreach the empirical research should be taken by the court “for what they are worth.” Such postulation grossly underestimates the dramatic extent to which specific recommendations can affect the trajectory of a child’s life without adequate empirical foundation. The issues raised in the lead article and further discussed here and by the responders cannot be answered with a facile “I’ll take it for what it’s worth” ruling. Such a response has no more validity here than it has when invoked to dispose of a cogent hearsay objection. On its face and in fact, the “for what it’s worth” rubric reflects a measure of weight, for example, what weight will the trier of fact give to the admissible evidence. It is not a standard of admissibility and, when invoked as such, negates the existence of any threshold assessment of evidentiary reliability.
“Let it in and Handle it on Cross-Examination”
Dessau suggested that attorneys can “weed out” weak opinions on cross-examination. Third Call for Humility rejected this solution as well:
This comports further with Judge Dessau’s concern that expert testimony must be scrupulously scrutinized: “On what material did he or she rely? What is the precise nature of the expert’s expertise and experience? Is he or she from an agency which, for example, has an overriding philosophy that a purported victim of sexual abuse is always to be believed, or one sympathetic to alleged perpetrators? How does the report sit with the rest of the evidence? Is it based on factual findings that the court can make? Has the expert been given the opportunity to reconsider in the light of the evidence in court? Is the expert defensive or partisan?”
These and many other areas of inquiry are important considerations to be sure but they focus only on the minor premises of the expert’s opinions, to wit, they ask the question, in effect, “Did this expert do it right?” The more fundamental question, and the one that is the focus of the lead article, is, “Can any expert do it at all?” For all of the reasons stated in our lead article, if the issue purportedly being answered by the expert is the best interest question, then the answer is surely “no,” at least at this point in time given the state of the research. Until such time as there is empirical evidence that such answer does repose within the scientific knowledge base of the behavioral science discipline, the answer will continue to be “no” and issues of methodology will be secondary.
This is a mistake many lawyers make in their cross-examinations. They may cross-examine effectively with respect to pointing out flaws in logic or deviations in methodologies from one or more of the published protocols and guidelines. But until such time as there is empirical basis for defining what “best interest” really means and deriving a methodology to predict it reliably and accurately–in terms of psychological construct as opposed to the socio-moral terms of “best interest” as a legal standard–there is no valid major premise to support such ultimate opinions, a point that will receive ample and penetrating attention if the cross-examination is effective.
“Evaluators Can Offer Something . . . Can’t They?” (Stahl)
Philip M. Stahl, later wrote separately, simply begging the question, that “they must be worth something. Third Call for Humility responded:
Unfortunately, in a court of law where fundamental rights are at risk, believing it to be so is not sufficient. The existence of divorce-related research in no way establishes the capacity of an individual evaluator to make accurate custodial predictions within an acceptable margin of error. It is with regard to the weighting of the complex set of psychological variables, parental assets and deficits, child needs, and so on, and the related production of a prediction and recommendation, that we have inadequate empirical support.
We are in agreement with Stahl that mental health professionals can provide specialized guidance with regard to treatment needs, conflict resolution recommendations, domestic violence interventions, and so forth. However, Stahl’s assertion that judges should consider recommendations to be advisory only ignores decades of judgmental heuristics research (e.g., Garb, 1998; Turk & Salovey, 1988) that makes clear the powerful and highly directive nature of early impressions. That is, once having an evaluator’s recommendation “lodged” in one’s brain as a judge, the likelihood of dislodging it may be quite low and the entire case, according to the judgment research, is likely to be viewed through the lenses of the recommendation that appears on the judge’s desk from that point forward, possibly affecting how subsequent information is gathered and interpreted.
“It’s Too Much Trouble for Evaluators to Justify Opinions with Science” (Stahl)
Stahl expresses significant concern about our willingness to refer to the making of custody recommendations as unethical and he mentions the fact that neither the licensing boards nor the APA has made such a determination. He is concerned about the increased burden that our ethical assessment will place on practitioners. We would respond that the burden should be dramatically increased because of what is at stake. To wait for licensing boards or the APA to render ethical decisions about this specific practice surrenders ethical decision-making responsibility to authorities rather than recognizing that ethical documents are meant to be interpreted and applied in the community by individual practitioners on a day-to-day, case-by-case, procedure-by-procedure basis, hopefully with the guidance of fellow practitioners and ethical experts, and informed by dialogues such as that contained in this issue. In short, it is the practitioner’s responsibility to make decisions about what is ethical and what is not, using the APA’s document as a template. If it is not unethical to imply, via a recommendation to a court, that one’s instruments and methods can do something–a life-changing “something”–that they have not been shown to be able to do, this is a very worrisome state of affairs for our profession.
Stahl’s understandable concern about suddenly having a common professional practice recast as potentially unethical is quite understandable because of the bind in which evaluators would be placed. However, once the paradigm shift we propose is supported by the legal profession, custody evaluators may well find it quite freeing to no longer imply, via concrete and specific recommendations, that they possess a level of predictive power that has never been shown to exist. If parents or children find themselves before a court of law and their life is about to be substantially redirected by the words uttered by a mental health professional, they have every right to ask, “Doctor, since you have been so willing to very specifically tell the court which custodial plan you believe is best, would you kindly cite those empirical studies that establish that your discipline can accurately make such a specific designation?” Given the current state of the research, the silence should be deafening.
“They’re Good Enough–It’s Only Family Court” (Grisso)
Tippins and Wittman respond to Grisso with agreement that the goal of a scientific foundation for custody evaluations is not at hand, and that the complexity of the analysis necessary to reach such as goal is daunting beyond forseeable achievement. Yet they comment that presently tolerating efforts to achieve that goal remains unethical:
Grisso’s suggestion that the kinds of multivariate research we recommend may, in the end, prove to be impossible and that the research may never produce the requisite empirical support for an ultimate best interest opinion may be exactly correct. In a sense, Grisso’s assertion in this regard underscores the concerns we have expressed: Day in and day out forensic evaluators are engaging in an extremely complex, multivariate assessment, and weighting/prioritizing task for which they have virtually no research to guide them. As Kelly and Johnston observe, there is a substantial volume of literature on various individual, family-level, and divorce-related constructs. However, when it comes to the combination, weighting, and prioritization of the multiple and multilevel variable constellations presented in most custody matters, there simply is no research to suggest that such a complex, predictive undertaking can be achieved with scientific validity and evidentiary reliability. Notably, while the nine responding articles in this issue do not agree with all of what we have postulated in the lead article, no one suggests that such empirical support for the validity and reliability of ultimate best interest opinions does, in fact, exist.
The polygraph may be “good enough” to use outside the courtroom, but not sufficiently valid to be admitted into evidence, just as many clinical approaches may be helpful in treatment, but remain far removed from the evidentiary reliability required by law to be heard in court. We do not lower the bar for the polygraph because that is the best that we can produce and there is no reason to do so when the rights of families are on the line. One simply does not abandon standards of evidentiary reliability, designed to safeguard liberties, to suit the limited state of knowledge of a discipline. Rather, the burden rests on the discipline to show that its principles, methods, and resulting conclusions have adequate evidentiary reliability to be worthy of courtroom expression.
“But Opinion Work Pays Really Good Money for Forensic Psychologists”
Drs. Gould and Martindale note that if forensic psychologists obeyed their ethical duties to offer only grounded in scientific basis, their business would dry up:
On the other hand, we believe that most judges want a specific recommendation as to custodial placement, and will avoid using an evaluator who refuses to offer such an opinion. In many jurisdictions, the failure to offer such an opinion would throw a monkey wrench into the traditional method of designating responsibility for experts’ fees.
Dr. Grisso also diagnosed “underlying issues that are impeding progress toward improvements in practice” to include the expert’s need for “financial gain.”
The client wants the most definitive and far-reaching argument that an expert can make, and obeying cautions to remain at the lower levels of inference inhibits the expert’s ability to provide what the client wants. Thus there is significant economic pressure to venture into the higher levels of inference.
Third Call for Humility responded:
[T]he possibility of [loss of income] though an understandable practical concern, is not an intellectually valid argument against elevating the ethical and professional level of practice in any field of endeavor. It is even less a sound reason for continuing a practice that is potentially harmful, as we believe is the proffer of empirically unsupported custody recommendations laden with subjective personal judgments that are potentially infused with various biases and ripe with judgment error.
They also address Grisso’s comment that making custody evaluators obey the law would put them out of business:
Grisso (this issue) expresses concern, also voiced by Gould and Martindale, that exclusion of ultimate best interest opinions and specific custodial arrangement recommendations may impair the livelihood of many mental health professionals. We would respond by noting first that the possibility of such impairment, though an understandable practical concern, is not an intellectually valid argument against elevating the ethical and professional level of practice in any field of endeavor. It is even less a sound reason for continuing a practice that is potentially harmful, as we believe is the proffer of empirically unsupported custody recommendations laden with subjective personal judgments that are potentially infused with various biases and ripe with judgment error. When, for example, the Food and Drug Administration announces a ban on products long on the marketplace, such as recent proscriptions of ephedrine or andro supplements, companies invested in the manufacture and sale of those products fold, and jobs are lost. Yet, such industry-wide economic dislocation does not–and cannot–deter the removal of risky products from the market to enhance the safety and well-being of consumers.
The risk–and it is a real one– is that less ethical or less scientifically faithful evaluators would continue to provide such specious conclusions and, because lawyers and judges may “like” specific recommendations, more evaluations would be assigned to these practitioners at the expense of those individuals who adhere to the higher standard we propose. This is why we agree with Gould *274 and Martindale that the legal system, which bears substantial responsibility for the current chaos in demanding and allowing unsupportable recommendations, should indeed, as they so nicely put it, “go first.”
Grisso’s comment that judges prefer to hear specific recommendations, which require Level IV inferences that are impermissible under our empirical model, points out another important practical dilemma presented by the reforms we are proposing. Yet here, again, this is not an intellectually sound argument against elevating practice standards and responsibly exercising the judicial role of gatekeeper.
Judges may prefer to hear many kinds of testimony, but judges are not laws unto themselves. An individual judge may, because of his or her personal metaphysical belief system, prefer to hear from astrologers or necromancers. Yet, as gatekeepers, they are duty-bound to exclude any such proffer by applying the rules of evidence as they have been fashioned either by common law or codified by legislatures or rule-making authorities. It is worth the reminder to observe that the rules of evidence, as well as the precepts of common law trial procedure more generally, though they may at times seem arcane, were designed to ensure due process and to protect the rights and liberties of those who come before the courts. Certainly, such safeguards are no less important when the rights of parents and children are at stake. In fact, it is those very safeguards that draw the distinction between empirically grounded, reliable testimony from a competent forensic evaluator and the intuitive inspirations of the astrologer, allowing the former into evidence while simultaneously excluding the latter.
“Evaluator Opinion Work Permits Evaluators to Experiment on Parents and Children”
Dr. Grisso notes that court-ordered evaluations provide psychologists with fertile ground to experiment with parents and gain experience necessary to developing a future legitimate “best interests” science.
Tippins and Wittmann’s call for “more research” is undeniably important, but it echoes cries that have been heard for three decades. … Only academics can reasonably be expected to produce the research that we need, and they seem to have been intent on using their position in academic towers more as a safe place for hurling stones at the empirically starved practitioners below than for producing the scientific data that would nourish them.
Third Call for Humility responds:
Grisso’s suggestion that the kinds of multivariate research we recommend may, in the end, prove to be impossible and that the research may never produce the requisite empirical support for an ultimate best interest opinion may be exactly correct. In a sense, Grisso’s assertion in this regard underscores the concerns we have expressed: Day in and day out forensic evaluators are engaging in an extremely complex, multivariate assessment, and weighting/prioritizing task for which they have virtually no research to guide them. As Kelly and Johnston observe, there is a substantial volume of literature on various individual, family-level, and divorce-related constructs. However, when it comes to the combination, weighting, and prioritization of the multiple and multilevel variable constellations presented in most custody matters, there simply is no research to suggest that such a complex, predictive undertaking can be achieved with scientific validity and evidentiary reliability.
“You Can’t Deny One Thing: They Settle Cases”
All symposium participants agreed that opinions—scientifically based or otherwise—cause a significant number of custody battles to settle out of court. Third Call for Humility noted that “many cases are settled not because the compromising parent receives the evaluator’s conclusions as an epiphany of parenthood or even sees the report as valid or true but, rather, because an adverse report is perceived–wrongly in our view–as an insurmountable obstacle to a positive litigation outcome.”
They add that “There simply are no data to prove what we know on the settlement facilitation function of evaluations.” It might also be noted that the “settlement” influence of best interests opinions exists only if parents have confidence that the forensic opinion is based on something more than pure conjecture, which in 94% of opinions is not the case.
Addressing the persuasive force of custody expert opinions:
many mental health professionals formulate their expert opinions based upon pseudoscientific assessment techniques that contribute to erroneous clinical conclusions (Emery, 2005; Otto, Edens, & Barcus, 2000). The recommendations that flow from such conclusions and subsequent opinion testimony can have persuasive authority before the court and often encroach on the ultimate issue (Waller & Daniel, 2004).”
Lawyers and judges perceive a value to specific recommendations in large part because they often facilitate settlement without trial. It is important to understand, however, that the leverage the recommendation exerts on litigants has little, if anything, to do with its underlying validity. As a general proposition, litigants settle cases when they perceive that they likely will do worse if they go to trial. Thus, the typical scenario in custody litigation is that the evaluator’s report comes in with a specific recommendation. The attorney for the disfavored party tells the client “the judge is highly likely to go with the recommendation.”
Loosely translated, “you are going to lose, so why not settle now and save yourself the risk and cost of trial.” It can fairly be said that the client does not hear the recommendation and experience an epiphany, suddenly realizing that the other parent is indeed the better choice. But for the perception that the judge will credit the recommendation and act upon it, the report would exert little leverage on the settlement process. Hypothetically, the same leverage could be obtained if everyone believed that the judge had tossed a coin and the result would be determinative or highly persuasive. The distinction is that no one would believe the coin toss is a relevant predictor of parenting capability but many within the legal system, being uninformed of behavioral science precepts, do believe that the mental health witness’s recommendation is.
Yet, specific recommendations can also have unintended effects. When a judge receives a specific custody recommendation from an evaluator and then decides that it ought not be followed, the recommendation may well pose an obstacle that the judge needs to surmount in writing the decision. Unfortunately, some appellate courts have given quasi-presumptive status to the opinions of court-appointed evaluators, mistakenly confusing court-appointed status with freedom from bias and other assessment errors. (Rentschler v. Rentschler, 1995; In re Custody of Rebecca B., 1994, but see, Chait v. Chait, 1995; Edgerly v. Moore, 1996). Such decisions leave cautious trial judges feeling the burden of justifying any departure from the mental health opinion by “writing their way out of it.”
“But Courts Receive Windfall Investigative Information From Evaluations–So We’re Like Cops, Sort Of”
Call for Humility acknowledged some value to child custody evaluations, conceding that “clinicians with adequate forensic training can provide matrimonial and family court judges with very useful and helpful information at Levels I and II. For example, admissions by litigants regarding disputed questions before the court, compilations of descriptions regarding parenting behavior over time, and data based inferences regarding parenting skills/deficits.” Call for Humility also concedes that an evaluating psychologist may “articulat[e] a child’s expressed concerns, emotional pain, developmental needs, and preferences” In other words, having gained the couple’s trust and access to the couple’s otherwise private matters, can use that access to perform investigation for the Court.
Call for Humility concedes that evaluators can provide courts with observations at levels I (“she was crying when she left the room”) and II (“Father seems authoritarian”), but to do so ethically evaluators must “routinely include warnings in forensic reports about the very significant limitations in our capacity to predict the best or worst custody plans for a particular family as a step toward educating the judiciary.”
“Psychological Testing Can Cure Empirical Defects”
Some Psychologists defended that psychological tests such as the MMPI or subjective tests such as the Rorschack commonly used in a clinical setting could provide valuable empirical support. The Symposium suggests that such tests do not resolve the core schism.
Personality testing is undertaken with no solid basis for concluding how the findings might impact parenting (Brodzinsky, 1993; Roseby, 1995; Tippins & Wittmann, this volume). Particularly in those cases where angry, hurt, but “good enough” parents are contesting custody or the allocation of time sharing, there is generally no basis in psychology or law for choosing between parents. Evaluators split hairs to make a case for one parent or the other, and the evaluator’s personal values and cultural biases are likely to be more prominent in this decision making.
Call for Humility responds that psychological testing is no more a reliable source for best interests opinions because it is at best a “Level III” tool:
This problem is nowhere more evident than with psychological testing: clinicians are often willing to include extended, test interpretative narratives despite being *199 unable to make an empirically supportable connection between the many adjectives used to describe a parent or child and custody-relevant variables (leaving posturing attorneys or judges to decide if they should view a particular description as worrisome).
“Okay, They’re Not Science, But Who Knows, Maybe Someday We’ll Figure it Out”
Several authors express hope that despite the current lack of foundation, the science may someday become valid, and that unless families are ordered to participate in surveys, that day will never arrive. Third Call for Humility responds that the existing research is directed to “Level II” observations, and that moving beyond this level in the context of a legal process causes risk of “infringement on human liberties” to “soar…”
“Well, the APA’s New Professional Standards for Custody Evaluators Cure the Defects”
Grisso notes that the American Psychological Association—the leading professional standards and oversight body governing the practice of Psychology, has experienced tension in developing goals which both comply with legal, moral, and ethical standards and permit custody evaluators to earn a living from “clients”:
Restrictions focused on the narrower boundaries of empirically based practice are good for practitioners in that they preserve the integrity of the profession, thereby strengthening its credibility. Moreover, constructing ethical sanctions (rather than mere voluntary guidelines) can produce a level playing field within the profession, in that all must abide by the rules rather than allowing some to seek an advantage by catering to the client. On the other hand, ethical sanctions that restrict practice run the risk of impairing psychologists’ livelihoods, because organizations that represent psychiatrists and social workers–who also provide child custody expertise–may have less restrictive ethical standards. Thus, a profession’s formal restrictions that attempt to maintain the integrity of its practitioners can end up putting them out of business.
Third Call for Humility notes that professional standards for conducting an evaluation don’t cure the problem that the “best interests of the child” is not an achievable empirical state of existence or end result that may be determined by utilizing psychological training or tools such as testing. They conclude that “there is no evidence that the social scientist is any better placed to accurately and validly answer that question than is a judge or, for that matter, than is a mail carrier.”
Drs. Gould and Martindale’s Second Call for Humility summarized the options for evaluators going forward:
In our view, there are three possible positions that evaluators, as a group, can take: (1) We can conclude that in order for evaluators to be of meaningful (as opposed to illusory) assistance to triers of fact, all evidence offered by us must be scientifically derived; that evaluators who offer evidence relating to custody matters are, therefore, doing a disservice to the judicial system, to parents and children, and to the mental health professions, and, that we should stop offering this service. (2) We can encourage those who interact with us in custody-related matters to play the “don’t ask, don’t tell” game; that is, cross-examining attorneys will not inquire about the empirical bases for our opinions and we won’t volunteer information concerning the known deficiencies in our current procedures. This tactic is in violation of our obligation to inform others of the known limitations of our procedures. (3) We can be diligent in acknowledging the known limitations of our procedures and dedicate ourselves to improving them.
Gould and Martindale express at least some degree of confidence in the viability of all three options—that in order to provide “assistance” and avoid a “disservice” to the “legal system,” violating ethical, moral, professional, and legal duties is a viable option. While perhaps they suggest the profession “must perservere” by moving forward by acknowledging its limitations, the very fact that they would discuss what can only be described as a widespread “don’t ask don’t tell” policy between “cross-examining” lawyers and psychological evaluators of defrauding families and courts as “the legal system” is astonishing.
Grisso echoes Gould and Martindale’s concern that we can’t do it now, but if we don’t “perservere” we’ll never develop a legitimate science
If we are waiting for the formulas that will tell us– across the wide variety of people and circumstances involved in divorce– whether a child is “more likely than not” to be harmed by a particular access arrangement then we can give up now, or we can reconsider our objectives.
Tippins and Wittman reject Gould and Martindale’s suggestions, pointing out that even if “limitations” are “disclosed”, and “guidelines are followed”, evaluation opinions remain inadmissible:
While Gould and Martindale underscore the importance of disclosing the absence of research data on any particular issue that is addressed in a forensic report, we would emphasize that there are ethical mandates beyond just disclosing limitations, for example, the mandate to use instruments, such as tests and interview protocols, only for their empirically established purposes. And, even assuming that disclosure satisfied the evaluator’s ethical strictures, once the witness concedes a lack of empirical basis for his or her conclusions, under Daubert v. Merrel Dow Pharmaceuticals, Inc. (1995), the court should rule the testimony inadmissible.
We completely agree with Gould and Martindale’s assertion that it is distressing to find that all too many evaluators continue to base forensic opinions on clinical judgment and hunches and adamantly insist that this is acceptable. Stubborn adherence to this “circle the wagons” position, defending at all costs the way the mental health profession has been doing evaluations, rather than critically scrutinizing that process in empirical terms consistent with the very roots of the psychology discipline, could very well signal that future day, a day perhaps not that far off, when custody evaluators are entirely excluded from the legal system on an evidentiary basis.
Conclusion of Call for Humility Symposium
Tippins and Wittman offer a concluding thought:
The real problem is that the legal system all too often indulges the assumption, with no underlying evidence to support it, that mental health professionals are in a superior position to provide best interest answers. Perhaps they are, but we do not know that to be true. A vicious cycle ensues that only compounds the problem. Every time a mental health professional gives a recommendation, he or she implicitly communicates to the court, “We can do this.” And every time a court allows the expert to make an ultimate best interest statement, the court tacitly says back to the mental health profession, “Yes, you can do this.” Once judges and lawyers, acting on behalf of parents and children, begin to ask the right question, to wit: “Can you do this?” the honest answer will be “No.” Should the occasional rogue say, “Yes,” the immediate response must be, “Prove it,” upon which silence should reign in the courtroom.
These and many other areas of inquiry are important considerations to be sure but they focus only on the minor premises of the expert’s opinions, to wit, they ask the question, in effect, “Did this expert do it right?” The more fundamental question, and the one that is the focus of the lead article, is, “Can any expert do it at all?”
If it is not unethical to imply, via a recommendation to a court, that one’s instruments and methods can do something–a life-changing “something”–that they have not been shown to be able to do, this is a very worrisome state of affairs for our profession”
Civil Rights Violations
The Symposium also identified numerous violations of constitutional rights of parents and children. Tippins and Wittman highlight the constitutional law issue without fully developing them:
A jurisprudence argument is also made that such opinions should be routinely excluded from the fact-finding process. Given the significant potential for specific custody recommendations to limit personal liberties and the trajectory of a child’s life, the paucity of relevant research available in this area, and profound evidentiary issues, such recommendations should be viewed as ethically inappropriate. A model for what clinicians can ethically say to courts is proposed.
At this level, therefore, the psychologist is still not making overt comments about what should happen in a family (as in the “shoulds” of Level IV), but the inferences drawn begin to have more clear connections to the ultiate issues before the court and therefore, by definition, also begin to have greater potential impact on judicial decisions regarding important personal liberties (e.g., the right to have access to one’s children, the right to do so unencumbered by supervision, the right to make decisions regarding a child’s medical care, etc.).
Level III Due Process Violations
[T]he problem is whether this knowledge is overextended into questionable higher-level inferences and whether the scientific method is consistently brought to bear on what is observed in order to correct for ubiquitous judgment errors and to avoid having an inappropriate effect on personal liberties.
[A] forensic custody evaluation is conducted in a milieu where the words that are chosen (a) will be interpreted and used by nonclinicians and (b) may be used to truncate important human liberties for parents and, by association, for children. It therefore appears that the most ethically sensitive approach to Level II inferences is to avoid their misuse by mentioning only those that on the basis of convergent, case-specific information and the specialized knowledge base of the profession will be able to be reliably tied to Level III, custody-specific variables (i.e., to global parenting capacity, global statements about a child’s psychological needs, parent–child fit, risk factors associated with different access plans, etc.). As we will assert below, this means that we must be ethically circumspect at Level II: Despite the wealth of clinically relevant information that can be gleaned at Level II, much of it should often be withheld because of the unique socio-cultural milieu in which the forensic expert is functioning.
For example, a common assumption among mental health professionals is that a parent’s capacity to empathize with, and emotionally understand a child is a critically important skill. However, we do not have sufficient data on how the “capacity for empathy” is distributed in the population to help a court understand whether the specific level of “empathy-deficit” in a particular parent–child dyad should be viewed as so extreme as to warrant a preference for one access plan over another. The empathy a child experiences from her father may appear greater than what she experiences from her mother, yet full normative data might show that the mother–child empathy pattern still falls within normal limits. If it does, should this be weighted against the mother? Certainly, this is more of a socio-moral decision than a clinical one. We are even lacking information about the base rates of various kinds of parenting skills in the general population, raising the same kind of challenging problem: We might note for a court that a particular father appears extremely passive with regard to limit setting, yet we have little literature to guide us in deciding whether his level of passivity should be viewed as statistically extreme enough to be relevant to best interests. The clinician is often left with personal values and clinical experience to make this decision and we believe that these sources of clinical guidance are, in most cases, wholly inappropriate as a basis for suggesting access plans that might limit certain personal liberties (i.e., by constricting parental access, constricting a child’s access to a parent, etc.).
Level III statements are limited to those custody-specific comments by the forensic evaluator that are more conclusory and directive in tone, such as the reporting of parenting quotients, “the preferred parent,” summary statements regarding the risks associated with a particular parent, and so on. It is at this point that the evaluator begins to take the Level II inferences about psychological disorders, parenting capacity, developmental needs, and so forth and summarize them in a manner that can be used as a basis for choosing one parenting arrangement over another. It is here too that the risk of inappropriate infringement on human liberties soars. Although it may be a fine-line distinction, what we are asserting is that at Level II, forensic evaluators can reach a wide variety of basic conclusions about a child and his or her parents.
Thus, it is here, in this legal milieu of contested custody litigation, where mental health professionals must cleave most faithfully to their empirical foundation and where judges must exert extraordinary vigilance as gatekeepers. Only through such fidelity and vigilance can we ensure that only those opinions predicated upon empirically established knowledge are allowed to impinge upon the fundamental rights and human liberties that are at stake when the issue before the court is the custody of a child.
Similar civil rights alarms have been sounded by other researchers:
Whether or not they protect in the expected fashion (the claims have not been tested by careful evaluation) there is no doubt that they have added substantially to the complexity of divorce litigation; and they have multiplied the time and money spent determining which parent will be chosen as the post-divorce custodian of the couple’s children and what post-divorce behavior will be required of that custodian. Many divorcing spouses are ordered (and some agree as an aspect of their negotiations with their spouses) to undergo a lengthy, social work investigation of their parenting potential and pre-divorce behavior; some parents are required to undergo psychological interpretation of their strengths and weaknesses (as persons as well as parents); some divorcing parents are required to submit to supervision of their parenting by a court or social service agency professional; some divorcing parents have been required to seek the approval of a professional to visit their children; some divorcing parents are required to undergo mediation of their marital disputes by a professional appointed by the judge. But this list hardly exhausts the “treatments” to which divorcing parents may be subjected. Consider the following list of services at divorce (some but not all authorized by statute) which judges can impose on divorcing couples in Hennepin County, Minnesota: “Parenting Time Expeditor”; “Guardian ad litem”; “Custody Evaluator or Investigator”; “Therapist”; “Attorney for Child”; “Early Neutral Evaluation.
Robert J. Levy, Custody Investigations in Divorce-Custody Litigation, 12 J. L. & Fam. Stud. 431, 432-33 (2010)
Level I and II Search and Seizure, Due Process, Free Speech, Thought, and Expression Violations
Several researchers noted that court-ordered investigators conduct highly invasive—“investigator” work at levels I and II—without probable cause, exigent circumstances, warrant, or consent: “To counter these biases, data triangulation involves collecting data from multiple informants, such as parents, teachers, medical personnel, friends, or agency workers. Triangulation also involves the use of multiple methods for data collection such as interviews, viewing of archival material such as medical files and video or audio tape recordings, direct observations, and psychometric testing. If most kinds of evidence agree, one obtains triangulation.”
California Coalition has filed a motion for preliminary injunction in its civil rights and racketeering lawsuit explaining why Family Court Domestic Violence Protective Orders impermissibly burden free speech which explains the legal foundations for this issue, and how the invasiveness of child custody evaluations is regularly used as a tool of extortion and racketeering by lawyers with the American Academy of Matrimonial Lawyers.
Equal Protection Violations
Kelley and Johnston note that parents in a dissolution proceeding are being treated even more harshly than non-disputing parents:
In the absence of such serious concerns about family abuse and neglect, mental illness, or substance abuse, too often custody evaluations must focus on who is and who is not more emotionally healthy and “the better parent.” Personality testing is undertaken with no solid basis for concluding how the findings might impact parenting (Brodzinsky, 1993; Roseby, 1995; Tippins & Wittmann, this volume). Particularly in those cases where angry, hurt, but “good enough” parents are contesting custody or the allocation of time sharing, there is generally no basis in psychology or law for choosing between parents.
Evaluators split hairs to make a case for one parent or the other, and the evaluator’s personal values and cultural biases are likely to be more prominent in this decision making. This may also be the case when both parents have demonstrated significant character or psychological problems and parenting deficits, and it is impossible to argue for a preference between parents without relying on subjective reactions and biases.
In this quest, custody evaluations may have inadvertently produced de facto double standards, where those held up for parents in family courts are far more stringent than those faced by parents in dependency courts. The result is that custody evaluators are now producing exhaustive, intrusive, negatively biased assessments, psychological testing, and written reports in which separating parents are scrutinized and held to a higher standard of accountability than those in nondisputing divorces and intact families. This seems unfair, unnecessarily stressful for already vulnerable families, and may even constitute grounds for claiming violation of parents’ civil rights. It is in the search for the elusive “better or best parent” that personal values and cultural beliefs are likely to infiltrate and contaminate what is supposed to be a scientifically defensible investigative process and report.
Are Mediations Safer?
[P]articipation in mediation also poses a serious risk that parties may waive important legal rights or enter agreements that exacerbate conflict. This is particularly true when mediators are ill-equipped or poorly trained.74 Bad mediators can do great harm– especially to vulnerable parties–when the “empowering” promise of mediation can instead become an exercise in coercion and arm-twisting.75 This risk is particularly acute without appellate review, a public record, or established grievance procedures that, at least in theory, provide a check on the risk of “bad” judging.
The risks of mediation increase when parties are encouraged or ordered to participate in mediation and lack information about legal norms. Attorneys have not traditionally played a central role in mediation. Unless confronted with a court order for mediation, attorneys rarely mention mediation as an option for clients facing family breakup, either through divorce or child welfare proceedings.76 Although some quickly recognized the important role attorneys can play in both preparing clients for mediation, and in the mediation sessions themselves,77 the prevailing view is that attorneys have little or no role to play in mediation.78 Some proponents of mediation not only see *907 attorneys as having a limited role, but actively discourage their participation. Without rules of procedure and evidence or governing substantive law they argue, parties can navigate the process of mediation themselves. Attorneys have little or no role under this conception of family mediation.
But the risk of loss of rights in the mediation process is significantly greater for unrepresented parties.79 Even if the attorney does not attend the mediation, the represented party has far greater access to an expert source of information about judicial proceedings, each party’s legal rights and remedies, and the parties’ chances of success in court. The unrepresented party has no comparable source of information when a “neutral” mediator facilitates an agreement.
Dr. David Martindale’s blistering criticism of child custody “expert” reports at the 2011 AFCC/AAML Annual Meeting details the grotesque bias, fraud, and abuse of family court litigants in custody litigation. Is anyone listening?
If you’ve hired a child custody evaluator–voluntarily or by order of a court–you’e been a victim of fraud, and probably extortion. Why is it fraud? Ask yourself–did anyone who was involved in your dissolution tell you this:
Notwithstanding the strong case that exists that it is unethical for mental health witnesses to tender specific custody recommendations and that their admission at trial violates fundamental evidentiary doctrine, it would be a mistake to blame the current situation solely on the mental health profession. That profession is simply responding to the demand of the legal consumers, the lawyers and judges who actively seek such invalid opinions. Privately, many evaluators will acknowledge that they deliver these recommendations with great internal reluctance, but yield to consumer pressure for fear of being out of business if they refuse.
If not, and you think you would have liked to have known that attorneys, judges, and child custody evaluators “deliver these recommendations with great internal reluctance”, you’ve been defrauded. If your children have been harmed, they’re victims as well .
If this is you, you’re not alone. Despite the fact that Tippins and Wittman have joined with other researchers at the top of the forensic psychology industry to debunk use of custody evaluations, courts and attorneys have continued to use them in thousands of cases a year. Why? Because they’re “simply responding to the demand of the legal consumer”–in other words–they’ve defrauded your predecessor litigants and their former clients for so long they can now rely on a track record of fraud to justify duping you too. Perhaps Al Capone should have told the F.B.I. “yes I’m a professional criminal, but I’ve been so successfully for so long now . . . . It cant’ be wrong.”
Think you can’t sue? Think again. Courts are not exempt from liability for fraud under racketeering laws–and neither are attorneys, social workers, or the evaluators themselves. Judges understand this, and have abundant judicial malpractice insurance to cover themselves in case you do sue-and many do. Our racketeering lawsuit provides an explanation of the legal foundations, and as we advance in the lawsuit you or your attorneys can follow our progress, and potentially seek recovery for all harms you’ve suffered.
California Coalition regularly consults with parents and attorneys in such matters. If you have questions, please contact us.