Should Forensic Psychologists Make Custody Recommendations?

The capacity for psychological tests to validly and reliably assess certain aspects of individual and family functioning is well established and, in certain areas, rivals the accuracy of medical tests. Meyer, Finn, Eyde, Kay, Moreland, Dies, Eisman, Kubiszyn, & Reed, “Psychological testing and pyschological assesment: A review of evidence and issues,” American Psychologist, 56, 128-165 (2001). However, given the lack of evidence suggesting that the tests and interviews used by forensic psychologists actually predict positive or negative functioning for different custodial arrangements, it can be argued that making custody recommendations on the basis of such techniques should be considered unethical. Psychologists also are directed by the American Psychological Association (APA) to recognize the limitations in their capacity to make clinical judgments or predictions and to indicate these limitations to the consumers of their reports. Following this guideline, one could argue that any custody report that contains an explicit custody recommendation should also include an explicit statement about the paucity, or, as some would say, the complete lack of validity data regarding such recommendations.

And although there is a longstanding legal tradition of not allowing expert witnesses to testify to the “ultimate issue” before the court, such testimony has obviously been allowed and even encouraged within trial procedures for custody matters. However, it has been argued that any testimony by an expert witness regarding the ultimate issue before the judge is professionally inappropriate. Psychological Evaluations for the Courts, Melton, Petrilia, Poythress, and Slobogin, Guilford Publications Inc., 1997; Principles of Forensic Mental Health Assessment, Heilbrun, Kirk, Kluwer Academic Publishers, 2001. According to this argument, even if there existed a theoretical blood test that could be administered to parents and children that perfectly predicted the best custody arrangement for a child, making explicit statements to a court about what should be done regarding this ultimate custody issue would still be inappropriate because it violates important role distinctions between judge and expert that need to be maintained and honored.

The Ultimate Issue

The ultimate issue is a matter of law to be decided by an individual (the judge) who has been sanctioned by society as an agent of social control and as a decision maker regarding socio-moral issues. Psychology as a discipline certainly has very useful information to provide that can assist the finder of fact in making such socially prescribed choices, but psychologists should avoid the understandably intense attempts to draw them into the role of explicitly making or recommending ultimate value choices.

Our discipline is often perceived as providing a scientific service to the court, and the application of the scientific method to assessing families can provide a degree of clarity and objectivity among the dueling distortions about family life that are often memorialized in petitions and counter-petitions. However, moving from lower-level inferences (mother is depressed and therefore emotionally unavailable to the children, father is narcissistic and therefore limited in his capacity to see the world through his child's eyes, etc.) to higher-level inferences (the mother in this family is less egocentric and should therefore be made the physical custodian) represents a highly subjective value choice about what is “best” for a child. It involves a comparison of varied patterns of “detriment” among an array of possible family arrangements. With two loving parents, one of whom is depressed and the other of whom is narcissistic, which of these two parenting detriments should be weighted more heavily in establishing the final access plan? Skilled clinicians could disagree about what is best or worst for a child in this circumstance.

As another example, should a stay-at-home mom's emotional sensitivity to her teenager's needs be weighted more heavily than a father's capacity to motivate the teen to reach his academic potential? These ultimate choices should be viewed not as psychological in nature, but as socio-moral, and therefore as falling outside the purview of the psychologist and squarely in the lap of the finder of fact. In addition, custody decisions can involve a very complex and multi-faceted decision about medical, educational, and financial issues that are related to, yet distinct from, those that are psychological in nature. Too many psychologists quickly assume a quasi-judicial role when they make explicit custody recommendations, forgetting that there are other dimensions outside their discipline that must also be assessed. Forensic accountants are not allowed to express custodial opinions, for obvious reasons. Although psychology is understandably viewed as one of the more important disciplines when custody decisions must be made, psychologists should not allow themselves to be drawn into a judicial posture about the data before them. And attorneys who believe the psychologist is doing just that should make the court aware of the problem, where appropriate.

What Psychologists Should Say

If psychologists should not be making specific custody recommendations, do they have anything of value to offer legal professionals involved in matrimonial proceedings? Despite the concerns outlined above, the psychology discipline has a wealth of information that can be helpful in the process of crafting child-sensitive access plans and to the process of cautious fact-finding.

Forensic psychologists can report conclusions about a wide range of best-interests-related dimensions, and can do so in a manner that provides acceptably reliable guidance to the court without specifically saying what the court should do. Cautiously stated conclusions can be offered regarding, among other issues, attachment patterns, parenting capacity, tendencies toward substance abuse and violence, developmental considerations for access schedules, child temperament issues, and inferences about a child's competence to reason about custodial choices. Psychologists can draw conclusions about such dimensions and outline implications for the children without saying to the court that it should choose a specific access plan.

It is the use of the scientific method, in the form of cautious hypothesis-testing, that separates the psychological discipline from more haphazard methods for gathering data, and that allows the psychologist to draw best interest-related conclusions that can be viewed as specialized knowledge rising above that which could be provided to the court by the general public. With certain families, a psychologist who employs this method might even draw conclusions about the relative psychological risks for a child associated with each home, parent or arrangement (without making a specific recommendation, and while alerting the court to the limitations in the psychologist's knowledge). A statement about the relative risks of different arrangements provides valuable information to the court without the implication, created by specific recommendations, of significant predictive power.

In addition to such conclusions, psychologists can offer a very valuable investigative function for the court, given the fact that their training in interviewing and assessment, along with their skill at using the scientific method, puts them in a good position to help establish certain facts that can be quite relevant to a best interests decision. In this regard, psychologists can help the court cut through the distortions and exaggerations often present in petitions and answering-papers by facilitating self-disclosure from litigants about disputed parts of family history and by giving voice to a child's desires and dilemmas.

Finally, psychology is the one discipline with an intense commitment to the importance of empirically verifying the assumptions we hold about children and families. In this regard, the psychologist is in the unique position to inform the court about children's important needs that can be supported with objective research, allowing the court occasionally to transcend litigants' subjective positions and appeal to reliably established developmental knowledge.

Conclusion

The discipline of psychology brings to the forensic table a scientific method for gathering and interpreting information about litigating families, and a wealth of empirical literature that can help provide guidance regarding best interests issues. However, the decision to leap from cautiously stated and constricted inferences about a family to a highly specific custody recommendation represents a profound lack of attention to both the significant limitations in the forensic psychologist's knowledge and his or her proper role in the legal system. Attorneys need to pay close attention to the role the psychologists on their cases take, to make sure that their clients' best interests are served.

Part Two of a Two-Part Article.

In last month's article, we explained that divorce psychology remains in its infancy, and that, given the extreme complexity of the psychological issues at hand in custody matters, it is no surprise that our discipline in this area is evolving. However, that does not mean there are not real problems at hand. This month's article continues the discussion about the debate currently surrounding certain developmental theories that are often the central underpinnings of custody recommendations.

Ethical Concerns

The capacity for psychological tests to validly and reliably assess certain aspects of individual and family functioning is well established and, in certain areas, rivals the accuracy of medical tests. Meyer, Finn, Eyde, Kay, Moreland, Dies, Eisman, Kubiszyn, & Reed, “Psychological testing and pyschological assesment: A review of evidence and issues,” American Psychologist, 56, 128-165 (2001). However, given the lack of evidence suggesting that the tests and interviews used by forensic psychologists actually predict positive or negative functioning for different custodial arrangements, it can be argued that making custody recommendations on the basis of such techniques should be considered unethical. Psychologists also are directed by the American Psychological Association (APA) to recognize the limitations in their capacity to make clinical judgments or predictions and to indicate these limitations to the consumers of their reports. Following this guideline, one could argue that any custody report that contains an explicit custody recommendation should also include an explicit statement about the paucity, or, as some would say, the complete lack of validity data regarding such recommendations.

And although there is a longstanding legal tradition of not allowing expert witnesses to testify to the “ultimate issue” before the court, such testimony has obviously been allowed and even encouraged within trial procedures for custody matters. However, it has been argued that any testimony by an expert witness regarding the ultimate issue before the judge is professionally inappropriate. Psychological Evaluations for the Courts, Melton, Petrilia, Poythress, and Slobogin, Guilford Publications Inc., 1997; Principles of Forensic Mental Health Assessment, Heilbrun, Kirk, Kluwer Academic Publishers, 2001. According to this argument, even if there existed a theoretical blood test that could be administered to parents and children that perfectly predicted the best custody arrangement for a child, making explicit statements to a court about what should be done regarding this ultimate custody issue would still be inappropriate because it violates important role distinctions between judge and expert that need to be maintained and honored.

The Ultimate Issue

The ultimate issue is a matter of law to be decided by an individual (the judge) who has been sanctioned by society as an agent of social control and as a decision maker regarding socio-moral issues. Psychology as a discipline certainly has very useful information to provide that can assist the finder of fact in making such socially prescribed choices, but psychologists should avoid the understandably intense attempts to draw them into the role of explicitly making or recommending ultimate value choices.

Our discipline is often perceived as providing a scientific service to the court, and the application of the scientific method to assessing families can provide a degree of clarity and objectivity among the dueling distortions about family life that are often memorialized in petitions and counter-petitions. However, moving from lower-level inferences (mother is depressed and therefore emotionally unavailable to the children, father is narcissistic and therefore limited in his capacity to see the world through his child's eyes, etc.) to higher-level inferences (the mother in this family is less egocentric and should therefore be made the physical custodian) represents a highly subjective value choice about what is “best” for a child. It involves a comparison of varied patterns of “detriment” among an array of possible family arrangements. With two loving parents, one of whom is depressed and the other of whom is narcissistic, which of these two parenting detriments should be weighted more heavily in establishing the final access plan? Skilled clinicians could disagree about what is best or worst for a child in this circumstance.

As another example, should a stay-at-home mom's emotional sensitivity to her teenager's needs be weighted more heavily than a father's capacity to motivate the teen to reach his academic potential? These ultimate choices should be viewed not as psychological in nature, but as socio-moral, and therefore as falling outside the purview of the psychologist and squarely in the lap of the finder of fact. In addition, custody decisions can involve a very complex and multi-faceted decision about medical, educational, and financial issues that are related to, yet distinct from, those that are psychological in nature. Too many psychologists quickly assume a quasi-judicial role when they make explicit custody recommendations, forgetting that there are other dimensions outside their discipline that must also be assessed. Forensic accountants are not allowed to express custodial opinions, for obvious reasons. Although psychology is understandably viewed as one of the more important disciplines when custody decisions must be made, psychologists should not allow themselves to be drawn into a judicial posture about the data before them. And attorneys who believe the psychologist is doing just that should make the court aware of the problem, where appropriate.

What Psychologists Should Say

If psychologists should not be making specific custody recommendations, do they have anything of value to offer legal professionals involved in matrimonial proceedings? Despite the concerns outlined above, the psychology discipline has a wealth of information that can be helpful in the process of crafting child-sensitive access plans and to the process of cautious fact-finding.

Forensic psychologists can report conclusions about a wide range of best-interests-related dimensions, and can do so in a manner that provides acceptably reliable guidance to the court without specifically saying what the court should do. Cautiously stated conclusions can be offered regarding, among other issues, attachment patterns, parenting capacity, tendencies toward substance abuse and violence, developmental considerations for access schedules, child temperament issues, and inferences about a child's competence to reason about custodial choices. Psychologists can draw conclusions about such dimensions and outline implications for the children without saying to the court that it should choose a specific access plan.

It is the use of the scientific method, in the form of cautious hypothesis-testing, that separates the psychological discipline from more haphazard methods for gathering data, and that allows the psychologist to draw best interest-related conclusions that can be viewed as specialized knowledge rising above that which could be provided to the court by the general public. With certain families, a psychologist who employs this method might even draw conclusions about the relative psychological risks for a child associated with each home, parent or arrangement (without making a specific recommendation, and while alerting the court to the limitations in the psychologist's knowledge). A statement about the relative risks of different arrangements provides valuable information to the court without the implication, created by specific recommendations, of significant predictive power.

In addition to such conclusions, psychologists can offer a very valuable investigative function for the court, given the fact that their training in interviewing and assessment, along with their skill at using the scientific method, puts them in a good position to help establish certain facts that can be quite relevant to a best interests decision. In this regard, psychologists can help the court cut through the distortions and exaggerations often present in petitions and answering-papers by facilitating self-disclosure from litigants about disputed parts of family history and by giving voice to a child's desires and dilemmas.

Finally, psychology is the one discipline with an intense commitment to the importance of empirically verifying the assumptions we hold about children and families. In this regard, the psychologist is in the unique position to inform the court about children's important needs that can be supported with objective research, allowing the court occasionally to transcend litigants' subjective positions and appeal to reliably established developmental knowledge.

Conclusion

The discipline of psychology brings to the forensic table a scientific method for gathering and interpreting information about litigating families, and a wealth of empirical literature that can help provide guidance regarding best interests issues. However, the decision to leap from cautiously stated and constricted inferences about a family to a highly specific custody recommendation represents a profound lack of attention to both the significant limitations in the forensic psychologist's knowledge and his or her proper role in the legal system. Attorneys need to pay close attention to the role the psychologists on their cases take, to make sure that their clients' best interests are served.