From California Coalition’s litigation library this week we bring you a peek inside the world of custody evaluations. The audio below reveals how judges, lawyers, and evaluators themselves consider, create, and use evaluations in custody disputes.
When is a custody evaluation legal? When is it appropriate? When should it be ordered? What is the policy of courts in making these decisions? Three Los Angeles Family Court practitioners explain their policies and practices at the 2012 10th Symposium on Child Custody Evaluations in Phoenix. The audio is linked below.
If you’ve been told or otherwise believe child custody evaluations are well-studied, regular processes–like an operation or physical therapy–what you’re about to learn will amaze you. But not because you’re going to hear divorce professionals unveil the genius behind the infinitely complex factors that make up a best interests opinion. Not because you’ll learn that the robbed ponderers, “specialist” bottom-feeder lawyers, and highly-trained (but bluntly skilled) mental health professionals are engineered to collaborate like the transmission of a luxury European automobile. And not because these professionals have achieved enormous advances in a “science” of psychology or law.
You’re going to be amazed to learn that judges, lawyers, and psychologists have no idea when, why, or even how to conduct a best interests opinion, what an opinion means for custody issues in the litigation, or whether it can, can’t, should, or shouldn’t be used at all. In the meandering rancor of AFCC’s 2012 Child Custody Symposium below is a rare inside look at the “reality media” of the domestic dispute industry and its chief players. Audio is here, and our summary and commentary follow.
Association of Family and Conciliation Courts, 10th Symposium on Child Custody Evaluations Phoenix, Arizona (November 1-3, 2012)
“What Lawyers and Judges Need to Know About Psychological Research”
Hon. Harvey A. Silberman (Los Angeles Sup. Ct.) Lyn R. Greenberg, Ph.D. Mary Catherine Bohen, J.D.
This interdisciplinary panel will present a “consumers’ view” of understanding and applying research based on the real-world dilemmas faced by current family courts. The challenge is not just to recognize and incorporate the best science into decision making, but to help decision making be more concrete given the challenges presented to the families in transition and the courts charged with creating practical solutions.
Weightier Matter Commentary
Judge Silberman of Los Angeles Superior Court explains his “policy” of ordering an evaluation only where there is a “clinical issue.” He omits, of course, to mention that he’s a lawyer, and couldn’t any more identify a “clinical” issue than could the guy who delivers his paper every morning.
With the confidence of an M.D. Psychiatrist who’s been managing the clinical psychotherapy wing of the Mayo Clinic for decades, Silberman proclaims: “I’ll consider ordering a stipulation for a child custody evaluation when there’s been some sort of prima facia showing that there’s a clinical issue involved” Silberman acknowledges that other judges have more aggressive policies of ordering custody evaluations on “tough questions” of custody even though there exists no “clinical issue”, but there’s no standard way to determine when or if one is needed. Silberman states that he doesn’t know if his policy even makes sense. He relies on evaluators to “throw it right back in [the judge’s] lap” if there are no “clinical issues” to evaluate. In other words, he says “let me know if you don’t want this money and I’ll give it back to the parents.”
But even if a “full monty” evaluation isn’t necessary, he likes insider “tips” from custody evaluators, which may help a judge “make the call. “Tips” kind of like Cosmo magazine–“10 ways to WOW your man in bed”–we suppose. Sounds professional.
Despite his admitted lack of psychological training, Silberman nevertheless micromanages custody evaluators who work for him. He explains: “I give very specific instructions on all my cases—what the clinical issues are, who I want spoken to, what collaterals I want spoken to, and what the goal of the evaluation is.” In other words, he uses the “chief detective” model of guiding subordinate detectives through a crime investigation. He’s not getting his hands dirty with evidence or facts from the crime scene, but he’s sure to be the one identifying the evidence and calling out the suspects so the detectives are sure to get the right man.
In Silberman’s courtroom, evaluators needing guidance are not to refer to their training or “literature”, they’re not to ask the parties or their attorneys questions, but are to ask the judge what to do. Silberman describes his policy that an evaluator can ask attorneys for clarification of his orders, through the lawyers, to clarify his instruction about how to conduct the evaluation if they are not clear.
Despite abundant condemnation by evaluators themselves of the practice of giving “ultimate question” testimony to courts Judge Silberman insists on such testimony: “I’ll accept any clinical finding as long as the finding jives with the clinical data in the end.” Judge Silberman appears to be saying that he will accept a custody evaluator’s ultimate conclusion about a custody issue (i.e. “overnights are not appropriate in this case”) if there is some “clinical data” to back it up. Yet most custody evaluators at the same conference condemned this practice as highly unethical. These psychologists and attorneys completely miss the hypocrisy they utter in simultaneously condemning the use of “low-quality research” while professing their advocacy for clients—based largely on exactly the “low quality research” they condemn.
Psychologist Lyn Greenberg, Ph.D. describes the “race to the court” with “literature” or an “article” regarding custody issues. By
“literature” and “custody” these speakers don’t mean scientific research, but “hot topic” publications on custody and child behavior; topics such as attachment “literature.” Ever hear an engineer, physicist, or doctor refer to their practice’s “literature”? Maybe these publications come with glossy pages and lots of pictures to make reading seem like fun.
Greenberg acknowledges: “There are some newer judges on the bench who you can flim-flam once, but if you do that, sooner or later someone’s going to tell them that the research doesn’t really massively say whatever somebody told them that it said and now not only are they going to know that there’s more compelling literature on the other side, but that someone’s been trying to flim-flam them”
Greenber’s admission that evaluators are “flim-flamming” “new” judges in Los Angeles shouldn’t be surprising. We are aware of exactly this “flim flaming” of judges expanding through family courts across the nation, and have mobilized with several parenting groups nationwide to target it’s use.
But Greenberg doesn’t reject all of the “literature”–she explains that it can be helpful to parents in facilitating understanding of child psychology in order to achieve voluntary resolutions and thwart a litigant’s embarkation on an ideological frolic toward “mothers’ rights groups or fathers’ rights groups.” Here Greenberg calls attention to a common myth about the never-ending waves of “research” and “science” that parents (and even judges and practitioners) arm themselves with to support a favored outcome.
One of the things you need to know is the difference between urban myth and reality.” “We had somebody publish an article, 14 point headline, that said ‘Brain Science Says That Children Should Never Be Separated From Primary Caretaker Before the Age of Three’. Now I’m married to a radiologist so he knows what [a brain scan] can or cannot tell you and they are laughing really hard.”
The speakers note abundant and unrestrained use of such “urban myths” by parents, lawyers, and evaluators themselves in custody disputes. Greenberg debunks other myths. “The fact that a nineteen month old child is having difficulty making transitions is a definitive diagnostic sign–that the child is nineteen months old” (laughter). The audience laughter demonstrates how poorly atuned these professionals are to the horrors the reliance on “flim flam” literature inflicts on their own clients who must endure this “flim-flamming” pseudo-science fraud scheme. The audience of professionals laughs at parents who might reasonably be excused for clinging to magazine-science and a prime-time comprehension of the law, especially when judges, lawyers, and doctorate-level psychologists regularly commit exactly the same fallacies.
Parent fatigue gets special attention:
We a guilt tripping an entire generation of parents who are not in child custody cases that are now being told that they’re screwing up their child if they sleep”
Parents who are tired are today labeled as pathological by the “flim-flam” artists. Certainly it’s in a magazine, er, “literature” somewhere? Lawyers and judges alike give credence to “attachment literature” and other highly theoretical squabbling (even focusing on a “consistent teddy bear” issue). Breast feeding myths are also targeted, and Judge Silberman expresses frustration at being faced with breast-feeding research—from attorneys and evaluators—endlessly. Yet he joins in when the attorneys and evaluators move on to debate whether soccer and reading is healthier than video games and stair-climbing. The virtues of a svelt child seemed to be worthy of his psycho-judicial endorsement of parenting prowess. He opines from the bench:
It’s not so easy as “go lose weight”
Maybe he’s confusing his “Weight Watcher” magazine subscription with his “Psychology Today” “literature.”
The bigger and enormously troubling picture is that these practices, though highly unethical, fraudulent, and extortive, are widespread. Whether due to parent ignorance, ginned-up market demand, or specious claims toward “zealous advocacy,” the practices these professionals describe are deplorable speculation, unprincipled procedure, and specious reasoning.
Equally depraved is the lack of appreciation these professionals have for the emotional and financial toll on parents and children caused by perpetration of an “urban myth” best interests opinion processes. These attorneys, judges, and psychologists devote almost the entire session to debating-not how to dispel the myths they so accurately identify, but how to better present the myths, how to present counter-myths, and how judges should respond to the myths. Only once does an attorney note that the debate over which myth is in fashion is enormously taxing on parents, children, and public and private resources. That comment is quickly disposed of with, “yeah but that’s what the judges want.”
Rather than science, you’ll hear how these professionals describe “depression” and “self-medication with alcohol” as a pathology. They ignore that a parent going through a divorce might quite naturally become depressed for a time, angry, frustrated, or reasonably reach to alcohol or other substances cope with emotional pain. In these cases–probably the vast majority of cases they see–the “condition” isn’t pathology, its the inept and senseless processes of incompetent professionals in a modern divorce court. Yet these professionals diagnose the cause of the behavior not to be the draconian divorce process or natural emotion of a breakup, but instead some deep, previously hidden personality defect that indicates a poor parent.
If this is the level of “science” these professionals bring to a “best interests opinion” it’s no wonder the practice is wrought with controversy–and will be forever. They’re not performing anything close to a forensic science, but observing the entirely ordinary effects of divorce. This isn’t science, but simply the same eyes and ears each of us has to impose the same biases and prejudices even an a layman could stumble into. Yet they’re paid thousands or tens of thousands of dollars to do so.
The participants discuss the startling option that a child could be called as a witness to “mom’s alcohol use” or “mom’s embarrassing behavior” in order to “satisfy dad’s concerns.” Judge Silberman even shares that his colleagues on the bench would put a child on the witness stand against a parent. Silberman’s totalitarian instincts go so deep as shamelessly admitting he has ordered a parent to take away a child’s video games-and even confiscating the games when the parent didn’t comply.
The policies and behavior these professionals admit to is an outrageous abuse of power and frittering of public resources. Judicial micromanagement grossly oversteps constitutional authority, deprives parents of dignity and autonomy, and is potentially dangerous. Unfortunately these practitioners appear to counsel otherwise.
On the hypothetical that a child is “embarrassed” by a mother’s behavior, the psychologists counsel child therapy or coercive judicial intervention despite the fact that they themselves question the intervention’s efficacy annd recognize its potential harm. They remain blind to the intervention’s illegality, expense, and common conflict generation.
This line of counsel—perhaps unique to California and New York—is another example of the blind spot that family courts have developed for the consequences of speculative “intervention.” The professionals completely miss what is or should be plain: Expending very real resources today to chase some potential (and unproven, and unprovable) small advantage in a child’s development years from now is insanity. Re-constructing a parent’s entire life to eliminate all potential risk, or seeking to force a co-parent to alter their behavior or develop “parenting skills” causes actual and often very severe immediate deprivation, expense, drama, and harm to parents and children alike.
California Coalition has attempted to communicate to this professional community that in all but the most severe cases of abuse, the process itself is the greatest impediment to the best interests of children in parenting disputes. Rather than coaching “power and control,” we regularly counsel our parent community in self-soothing skills, negotiation skills, involvement in divorce community commiseration, and to “don’t sweat the small stuff” with a co-parent.
Oddly, though these professionals appear to understand that appropriately perceiving true risk and reward from imagined is a key to the success in their own professions and lives, they fail to counsel and adhere to principles of its adoption While attorneys regularly roll their eyes at parents mired in conflict over minutiae, you can hear from this recording that they themselves are just as enthralled with indulging speculation, condemnation, and lathered debate. Attorneys continue to refer to “quality of the research” as if the problem is quality of science rather than a contest of wills.
Our parent community experience tells us that the source of most conflict is parental relationship and control issues from old wounds–or new ones inflicted during pursuit of short-sighted ends. These issues don’t need science, but guidance in directing parents toward longer-term perspectives, firm boundaries, share-maximizing schedules, and clear, balanced decision-making. Simply focusing on avoiding conflict can stop expanding parental battle lines and create territory on which to found a longer-term peace.
Unlike other legal contexts, custody battles don’t end with a judicial decision. California Coalition parents find this recording another in a growing exhibit list of evidence of recklessly irresponsible judicial and professional behavior we’re targeting in our racketeering lawsuit.
Judicial officials and professionals need to do a much, much better job of gate-keeping, and understanding that the solutions to most issues are not science, but most often “mom-dad” or “parent-child” relationship issues. We’ve targeted this failure in gate-keeping and relationship management in our lawsuit as contributing to the enormous fraud perpetrated on parents who fall prey to the seduction of “best interests” pseudo-science.
If you’ve hired a custody evaluator, guardian ad litem, or other court-related professional, or had an attorney recommend or fail to warn you about one, you’ve been defrauded. California Coalition wants to hear from you.
From the seminar handouts:
(California Coalition does not endorse this advice provided for reader edification only)
Top Ten Tips
1. Avoid believing that “If it’s published, it must be quality research.” Based on a critical appraisal of 60,352 articles from 170 journals, McKibbon, Wilczynski, & Haynes (2004) found that only 6.8% of published articles were deemed “high quality” studies. Not all studies are created equally. Published reports can make erroneous claims that may not be based on high quality evidence. Contradictions in research findings may reflect differences in the quality of the research, the populations studied, the sample size, the research design used, and the accuracy with which it is reported. With the increased use of open source publishing (e.g., publishing material on the internet), it is easy to find at least one “study” to support just about any theory. Science can help us understand complex relationships so it should neither be discounted nor used without critical appraisal (Drozd, Olesen, & Saini, in press).
2. Avoid the twin temptations of adopting oversimplified rules and disregarding science altogether. If it looks too simple to be true, it probably is. Legal professionals often prefer simple, clear statements, and may perceive mental health professionals who present nuanced statements to be waffling or defensive. Social science is complicated, because children and families are complicated. Care is essential to determine which findings best apply to the family at hand. It is prudent to be cautious when polarized or politically driven extremes are presented. (Johnston, 2007; Gelles, 2007). Research allows one to discover the full continuum of solutions as a means to navigate around ideological wars (Drozd, Olesen, & Saini, in press)
3. Summaries of the research can be handy, but are often misleading. Because summaries may not accurately reflect the findings in the primary studies, they should be used with great caution (Drozd, Olesen, & Saini, in press). Does the author who conducted the review have an evident bias or agenda? Is the author articulating the limits of the research in the summary or acknowledging findings that point in different directions? Popular press articles and brief research summaries often present oversimplified results with considerable overstatement. They may fail to distinguish between research findings and statements of theory or opinion – presenting findings that support the author’s perspective as immutable facts and even omitting limitations cited by the original researchers (Greenberg, Drozd & Bohen, 2012). For example, it is no less misleading to say that “the research” supports overnights for young children than it is to say that “the research” establishes that young children below age 5 should never spend the night away from their mothers. Studies suggest different conclusions, and different issues to consider, depending on the family’s situation and characteristics. A closer look at the details can guide us to the issues most important and relevant to a particular child and family.
4. Look for experts and authors who put the limitations of their results out front, from the outset. Banner headlines and broad, uncomplicated statements may be appealing but are often misleading. Many families do not have the funds to challenge material presented as “sound bites” or “headlines.” Harm can be done to families in between the overly broad statement and the presentation of context or amplifying material. That is one reason why psychologists have an ethical obligation to articulate the limitations of opinions they present and to take steps to mitigate any misrepresentation or misunderstanding of their work. Which expert would you find more credible – one who notes the limitations immediately, or one who is forced to do so under challenge from other experts or a cross-examining attorney?
5. Avoid considering research in a vacuum. Consider the other variables, such as general child development issues, that may impact or inform the immediate issues. If the allegation in the case involves alienation, it is essential to also consider what we know about child development, violence, maltreatment, parent-child relationships and attachment. This approach will minimize the risk of neglecting the whole child in favor of focusing on contested issues.
6. Findings that appear to conflict may actually provide context or applicability. When the expert looks more deeply at the findings, the various factors at play that provide the different findings may become evident and, in turn, may help the expert, and ultimately the Court, see the family before them more clearly and accurately. Caution must prevail, given that the factors found in other domains related to child custody may not take into consideration the confounding effects of separation, conflict, and involvement with the family court system (Greenberg, Gould, Martindale & Gould-Saltman, 2004; Drozd, Olesen, & Saini, in press). Thus, extrapolating the evidence needs to be tentative and framed within the context that a given family finds itself in.
7. Push back from overgeneralizations and cookie-cutter approaches to solve complex problems. Determine whether the studies cited are similar to the family and children in the case before the Court. Consider the context and complexity of individual experiences of children and families in assessing the applicability of research findings (Drozd, Olesen, & Saini, in press; Greenberg, Drozd & Bohen, 2012, Greenberg, Gould, Martindale and Gould-Saltman, 2004.). If children in the case under consideration are ages 3 and 5 and the subjects in the studies looked at are teenagers, one might question the generalizability of the study to the children in the instant family.
8. Avoid phrases like, “the research says” given that the research rarely speaks with a single voice. Instead consider “the trends suggest…” Even when there is broad agreement on general issues, details vary. Rarely is there agreement across all research on a given topic. The findings of individual studies are more likely to differ than to be identical. The differences in the research findings may be critical to crafting plans and interventions for a specific family. By way of example, while there is general agreement among mental health professionals that exposure to parental conflict may be harmful to children; the best plan for a family will depend on the type of conflict presented, the resources available, and the strengths and weakness of each family member (Kelly, 2007; Greenberg, Doi Fick & Schnider, 2012).
9. Seek research to inform about the possibilities, rather than narrowly looking at research to support one view. Seek research that challenges your preliminary opinion. When an expert, an attorney, or even a judge has a pre-existing view, the temptation is to consider and give weight only to information that supports that point of view. “Check yourself before you wreck yourself.” Experts may present more polished versions of the material that Johnny and Sally’s parents found on their preferred web sites though experts can be effectively challenged about their choices of source material, and whether they sought information about other possibilities. Systematic bias can be even more harmful at earlier stages of the process when a consultant’s report of the research may impact a family’s decision to settle or pursue litigation.
10. Therapy, parenting coordination and other interventions should also be “scientifically informed.” Too often, we expect a research base for the “big issues” that are the focus of litigation, and neglect the available research when deciding how to assist families. Controlled studies of specific interventions may not always be available, but we can draw on research about domestic violence, children’s development and adjustment, components in children’s decision-making, suggestibility, and other related issues in crafting or providing interventions. There is a broad knowledge base in the mental health professions about many of these issues, and research from a variety of perspectives about what is essential or useful to promote behavior change in adults and progress in children. Knowledge of “What works” (and does not work) from the available research can help in structuring interventions that are most likely to be helpful for a particular family, which may include services stipulated to by the parties or ordered by the Court (Greenberg, Doi Fick, & Schnider, 2012; Greenberg, Gould, Gould-Saltman & Stahl, 2003 ).
While the volume of social science literature has increased dramatically over recent decades, important questions persist about applicability of empirical research. Some would question and whether the research can offer anything to Johnny and Sally’s family situation. Undoubtedly, there are some findings that can be helpful in decision-making, if used appropriately. Skilled professionals can provide context to splash headlines on web sites, educating parents to more accurate information relevant to their family. This may provide the basis for compromise and cooperation, with professional assistance. If the decision must be made by the Court, research presented in the context of the family may assist the court. Conversely, decisions based on splash headlines or biased summaries may do more harm than good for the family. Judges, lawyers and parents can be seduced by the expert who offers certainty in a context of uncertainty. In a strained system, it may also be tempting to disregard the research entirely, relying instead on personal experience, historical “common knowledge” some of which is no longer scientifically supported (Mnookin & Gross, 2003). Mental health experts have a responsibility to inform clients, counsel and/or the Court of the multiple interacting variables that impact research findings and their applicability to a particular family (Kuehnle & Drozd, 2012). Lawyers and judicial officers must be sufficiently familiar with the research to question the expert’s process and conclusions (Zervopoulos, 2008). Practitioners providing services to these families also have a responsibility to be familiar with the research that is relevant to their work and to practice in a scientifically defensible manner. (AFCC Guidelines for Court-Involved Therapy). Failure to do so risks enormous harm to the children and family. Generally, the best use of psychological research is gradual, cautious, and nuanced. Used carefully and throughout the process, research may have much to offer to families. As with most tools, irresponsible use can lead to harm.