Should Forensic Psychologists Make Custody Recommendations?

As discussed in the first part of this article, forensic evaluations can have a dramatic effect on the trajectory of a contested custody dispute and, ultimately, on the path a particular child's life will take post disposition. There are many arguments against giving specific custody recommendations, eg, it has not been established that following specific custody recommendations will result in a better family situation. In addition, the recommendations are frequently deeply subjective and value-laden and the profession itself is divided on many important issues. The conclusion of this article explores the ethical concerns, professional role and positive contributions of forensic psychologists.

Ethical Concerns

The ethical principles guiding the practice of psychology constrain psychologists to use assessment techniques, including interviews and tests, in a manner and for purposes that are appropriate in light of the research on, or evidence for the usefulness and proper application of the particular technique (APA, 2003). The capacity for psychological tests to assess certain aspects of individual and family functioning validly and reliably is well established and, in certain areas, rivals the accuracy of medical tests (Meyer, Finn, Eyde, Kay, Moreland, Dies, Eisman, & Reed, 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 could be considered unethical. Psychologists are also directed by the APA to recognize the limitations in their capacity to make clinical judgments or predictions and to indicate these limitations to the consumers of their reports. Following this guideline, one could argue that any custody report that contains an explicit custody recommendation should also include an explicit statement about the paucity, or, as some would say, the complete lack of validity, of data regarding such recommendations.

Inappropriate Professional/ Social Role

Although there is a long-standing legal tradition of not allowing expert witnesses to testify to the “ultimate issue” before the court, such testimony has obviously been allowed and even encouraged within trial procedures for custody matters. However, it has been argued that any testimony by an expert witness regarding the ultimate issue before the judge is professionally inappropriate (eg, Melton, Petrilia, Poithress, and Slobogin, 1997; Heilbrun, 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 is a matter of law to be decided by an individual (the judge) who has been sanctioned by society as an agent of social control and as a decision-maker regarding socio-moral issues (the “shoulds”). Psychology as a discipline certainly has very useful information to provide that can assist the finder of fact in making such socially prescribed choices. Nevertheless, psychologists should avoid the understandably intense attempts to draw them into the role of explicitly making or recommending ultimate value choices.

Our discipline is often perceived as providing a scientific service to the court, and the application of the scientific method to assessing families can provide a degree of clarity and objectivity among the dueling distortions about family life that are often memorialized in petitions and counter-petitions. However, moving from lower-level inferences (eg, mother is depressed and therefore emotionally unavailable to the children; father is narcissistic and therefore limited in his capacity to see the world through his child's eyes) to higher-level inferences (eg, the mother in this family is less egocentric and should therefore be made the physical custodian) represents a highly subjective value choice about what is “best” for a child. It involves a comparison of varied patterns of “detriment” among an array of possible family arrangements. With two loving parents, one of whom is depressed and the other narcissistic, which of these two parenting detriments should be weighted heaviest in establishing the final access plan? Skilled clinicians could disagree about what is best or worst for a child in this circumstance. Should a stay-at-home mom's exquisite emotional sensitivity to her teen-ager's needs be weighted more heavily than a husband'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 in nature and as therefore falling outside the purview of the psychologist and squarely in the lap of the finder of fact. In addition, custody decisions can involve a very complex and 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 of their discipline that must also be assessed. Forensic accountants are not allowed to express custodial opinions for obvious reasons. Although psychology is understandably viewed as one of the more important disciplines when custody decisions must be made, psychologists should not allow themselves to be drawn into a judicial posture about the data before them.

What Psychologists Can Say

Despite the profound concerns previously discussed about the process of making recommendations, the discipline of psychology has a wealth of information that can be helpful in the process of crafting child-sensitive access plans and to the process of cautious fact-finding.

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

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

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

Finally, psychology is the one discipline with an intense commitment to the importance of empirically verifying the assumptions we hold about children and families. In this regard, the psychologist is in the unique position, on occasion, to inform the court about important needs on the part of children, which can be supported with objective research (allowing the court occasionally to transcend subjective “positions” on the part of the litigants 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 our knowledge and our proper role in the legal system.

As discussed in the first part of this article, forensic evaluations can have a dramatic effect on the trajectory of a contested custody dispute and, ultimately, on the path a particular child's life will take post disposition. There are many arguments against giving specific custody recommendations, eg, it has not been established that following specific custody recommendations will result in a better family situation. In addition, the recommendations are frequently deeply subjective and value-laden and the profession itself is divided on many important issues. The conclusion of this article explores the ethical concerns, professional role and positive contributions of forensic psychologists.

Ethical Concerns

The ethical principles guiding the practice of psychology constrain psychologists to use assessment techniques, including interviews and tests, in a manner and for purposes that are appropriate in light of the research on, or evidence for the usefulness and proper application of the particular technique (APA, 2003). The capacity for psychological tests to assess certain aspects of individual and family functioning validly and reliably is well established and, in certain areas, rivals the accuracy of medical tests (Meyer, Finn, Eyde, Kay, Moreland, Dies, Eisman, & Reed, 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 could be considered unethical. Psychologists are also directed by the APA to recognize the limitations in their capacity to make clinical judgments or predictions and to indicate these limitations to the consumers of their reports. Following this guideline, one could argue that any custody report that contains an explicit custody recommendation should also include an explicit statement about the paucity, or, as some would say, the complete lack of validity, of data regarding such recommendations.

Inappropriate Professional/ Social Role

Although there is a long-standing legal tradition of not allowing expert witnesses to testify to the “ultimate issue” before the court, such testimony has obviously been allowed and even encouraged within trial procedures for custody matters. However, it has been argued that any testimony by an expert witness regarding the ultimate issue before the judge is professionally inappropriate (eg, Melton, Petrilia, Poithress, and Slobogin, 1997; Heilbrun, 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 is a matter of law to be decided by an individual (the judge) who has been sanctioned by society as an agent of social control and as a decision-maker regarding socio-moral issues (the “shoulds”). Psychology as a discipline certainly has very useful information to provide that can assist the finder of fact in making such socially prescribed choices. Nevertheless, psychologists should avoid the understandably intense attempts to draw them into the role of explicitly making or recommending ultimate value choices.

Our discipline is often perceived as providing a scientific service to the court, and the application of the scientific method to assessing families can provide a degree of clarity and objectivity among the dueling distortions about family life that are often memorialized in petitions and counter-petitions. However, moving from lower-level inferences (eg, mother is depressed and therefore emotionally unavailable to the children; father is narcissistic and therefore limited in his capacity to see the world through his child's eyes) to higher-level inferences (eg, the mother in this family is less egocentric and should therefore be made the physical custodian) represents a highly subjective value choice about what is “best” for a child. It involves a comparison of varied patterns of “detriment” among an array of possible family arrangements. With two loving parents, one of whom is depressed and the other narcissistic, which of these two parenting detriments should be weighted heaviest in establishing the final access plan? Skilled clinicians could disagree about what is best or worst for a child in this circumstance. Should a stay-at-home mom's exquisite emotional sensitivity to her teen-ager's needs be weighted more heavily than a husband'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 in nature and as therefore falling outside the purview of the psychologist and squarely in the lap of the finder of fact. In addition, custody decisions can involve a very complex and 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 of their discipline that must also be assessed. Forensic accountants are not allowed to express custodial opinions for obvious reasons. Although psychology is understandably viewed as one of the more important disciplines when custody decisions must be made, psychologists should not allow themselves to be drawn into a judicial posture about the data before them.

What Psychologists Can Say

Despite the profound concerns previously discussed about the process of making recommendations, the discipline of psychology has a wealth of information that can be helpful in the process of crafting child-sensitive access plans and to the process of cautious fact-finding.

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

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

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

Finally, psychology is the one discipline with an intense commitment to the importance of empirically verifying the assumptions we hold about children and families. In this regard, the psychologist is in the unique position, on occasion, to inform the court about important needs on the part of children, which can be supported with objective research (allowing the court occasionally to transcend subjective “positions” on the part of the litigants 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 our knowledge and our proper role in the legal system.