The Proposed APA Guidelines for Child Custody Evaluations

The American Psychological Association (APA) has now proposed new guidelines for Child Custody Evaluations to replace those promulgated in 1994, which set 'aspirational goals' for those psychologists engaging in evaluations of children for divorcing families going through custodial litigation. APA Guidelines for Child Custody Evaluations in Divorce Proceedings (1994). Although the original guidelines called themselves 'aspirational goals,' many states required their use through case law or ethical standards for psychologists. See, e.g., Pennsylvania and Florida. Since 1994, when the guidelines were adopted, they have been used effectively to cross-examine these experts and their reports. The proposed guidelines would substantially weaken their obligations and protect them from the effective cross-examinations that have challenged their work product.

Background

The original guidelines, currently in place, required, for example, that the psychologist examine information for the best psychological interest of the child, a logical charge for those trained in psychology. No one who practices in this area of the law would dispute that there are many factors to be considered in the placement of a child, the psychological interest being only one of many. Moreover, no one can dispute that after gathering the evidence presented in court, the psychological evidence being only one piece of the case, it is up to the finder of fact to weigh the evidence and make the final decision. Since 1994, those of us who have been familiar with these guidelines and used them to challenge the recommendations of the testifying expert have found that psychologists have bristled at the idea that their charge restricted them only to psychological interests rather than being able to make a final decision. As such, the new proposed guidelines delete the word 'psychological' before the words 'best interests,' thereby broadening their scope of inquiry and further reducing the role of the judge.

In exploring the training of the psychologists, it is helpful to remember that nothing in their training gives them the expertise to determine 'best interest of the child,' which is clearly a legal standard that differs from state to state. (And, indeed, sometimes from courtroom to courtroom.) Additionally, to my knowledge, none of the psychologists graduated with a crystal ball. Many psychologists with whom this issue has been discussed have acknowledged that they rarely, if ever, follow a child from childhood to adulthood, to see whether their recommendations have resulted in successful, happy children. Indeed, without a 'control' ' which is impossible ' there is no way to know how a child would have developed if he or she had had a different schedule, such as equally shared custody, rather than primary custody with one parent or the other, or eight days per two week period with Mom as opposed to nine days in the same period. That seems to be a good reason for Guideline 14, which states that 'recommendations, if any, are based on what is in the best psychological interests of the child,' thereby suggesting that these experts should be gathering psychological data, rather than making recommendations as to the custody schedule. Furthermore, while they all claim to do it because 'the judges want it,' it is far beyond their expertise if they are honest about it. Interestingly, the new guidelines once again delete the word 'psychological' from this statement in proposed Guideline 13, setting psychologists up as the arbiters of what is in the child's best interest, despite the fact that they should only be gathering data for which they are trained, namely 'psychological' data. Do we no longer need a judge if the psychologist is involved?

Proposed Guideline 12

Another attempt to avoid their existing aspirational goals is the new proposed Guideline 12 that, in the current guidelines (Guideline 13), prevents them from analyzing anyone they have not seen. This, of course, is logical since it would be inappropriate to analyze someone based on what we call hearsay. That, of course, isn't stopping these defenders of their livelihood. The new proposal permits them to do it if they 'have sufficient information and used appropriate techniques to substantiate such opinions.' Hopefully, if this ridiculous proposal is passed, the honest psychologists will continue to discuss only those individuals that they have actually interviewed!

If these proposals are not sufficient to undermine the credibility of these 'experts,' new Guideline 12 should do it. Proposed Guideline 12 states: 'Psychologists make evaluative statements about individuals only when they have obtained sufficient information and used appropriate techniques to substantiate such opinions.'

The existing guideline provides that these mental health professionals cannot wear two hats, or as the current guideline puts it, '[t] he psychologist avoids multiple relationships.' They acknowledge that acting in a therapeutic role for the family member may compromise the psychologist's objectivity. Existing Guideline 7: 'Psychologists generally avoid conducting a child custody evaluation in a case in which the psychologist served in a therapeutic role for the child or his or her immediate family or who has had other involvement that may compromise the psychologist's objectivity.' In other words, the psychologist cannot transition from being Mom's therapist to evaluating the family for custodial placement. It should be clear, even as the APA circles the wagons to protect its members, rather than providing oversight for the profession, that therapists have ' and should have ' a loyalty to the client they have been counseling. To suggest that a psychologist can become objective is sheer nonsense, and the APA should be ashamed of this obvious travesty that is designed only to bolster full employment for its members. Lawyers should not allow therapists to usurp the province of the court, and we should be prepared to cross-examine them carefully on their justification for the changes, if indeed these new 'guidelines pass. The APA should rethink these proposals.

Lynne Z Gold-Bikin, a member of this newsletter's Board of Editors, is a partner in Philadelphia's Wolf, Block, Schorr & Solis-Cohen LLP. She is the Chair of the Family Law Department.

The American Psychological Association (APA) has now proposed new guidelines for Child Custody Evaluations to replace those promulgated in 1994, which set 'aspirational goals' for those psychologists engaging in evaluations of children for divorcing families going through custodial litigation. APA Guidelines for Child Custody Evaluations in Divorce Proceedings (1994). Although the original guidelines called themselves 'aspirational goals,' many states required their use through case law or ethical standards for psychologists. See, e.g., Pennsylvania and Florida. Since 1994, when the guidelines were adopted, they have been used effectively to cross-examine these experts and their reports. The proposed guidelines would substantially weaken their obligations and protect them from the effective cross-examinations that have challenged their work product.

Background

The original guidelines, currently in place, required, for example, that the psychologist examine information for the best psychological interest of the child, a logical charge for those trained in psychology. No one who practices in this area of the law would dispute that there are many factors to be considered in the placement of a child, the psychological interest being only one of many. Moreover, no one can dispute that after gathering the evidence presented in court, the psychological evidence being only one piece of the case, it is up to the finder of fact to weigh the evidence and make the final decision. Since 1994, those of us who have been familiar with these guidelines and used them to challenge the recommendations of the testifying expert have found that psychologists have bristled at the idea that their charge restricted them only to psychological interests rather than being able to make a final decision. As such, the new proposed guidelines delete the word 'psychological' before the words 'best interests,' thereby broadening their scope of inquiry and further reducing the role of the judge.

In exploring the training of the psychologists, it is helpful to remember that nothing in their training gives them the expertise to determine 'best interest of the child,' which is clearly a legal standard that differs from state to state. (And, indeed, sometimes from courtroom to courtroom.) Additionally, to my knowledge, none of the psychologists graduated with a crystal ball. Many psychologists with whom this issue has been discussed have acknowledged that they rarely, if ever, follow a child from childhood to adulthood, to see whether their recommendations have resulted in successful, happy children. Indeed, without a 'control' ' which is impossible ' there is no way to know how a child would have developed if he or she had had a different schedule, such as equally shared custody, rather than primary custody with one parent or the other, or eight days per two week period with Mom as opposed to nine days in the same period. That seems to be a good reason for Guideline 14, which states that 'recommendations, if any, are based on what is in the best psychological interests of the child,' thereby suggesting that these experts should be gathering psychological data, rather than making recommendations as to the custody schedule. Furthermore, while they all claim to do it because 'the judges want it,' it is far beyond their expertise if they are honest about it. Interestingly, the new guidelines once again delete the word 'psychological' from this statement in proposed Guideline 13, setting psychologists up as the arbiters of what is in the child's best interest, despite the fact that they should only be gathering data for which they are trained, namely 'psychological' data. Do we no longer need a judge if the psychologist is involved?

Proposed Guideline 12

Another attempt to avoid their existing aspirational goals is the new proposed Guideline 12 that, in the current guidelines (Guideline 13), prevents them from analyzing anyone they have not seen. This, of course, is logical since it would be inappropriate to analyze someone based on what we call hearsay. That, of course, isn't stopping these defenders of their livelihood. The new proposal permits them to do it if they 'have sufficient information and used appropriate techniques to substantiate such opinions.' Hopefully, if this ridiculous proposal is passed, the honest psychologists will continue to discuss only those individuals that they have actually interviewed!

If these proposals are not sufficient to undermine the credibility of these 'experts,' new Guideline 12 should do it. Proposed Guideline 12 states: 'Psychologists make evaluative statements about individuals only when they have obtained sufficient information and used appropriate techniques to substantiate such opinions.'

The existing guideline provides that these mental health professionals cannot wear two hats, or as the current guideline puts it, '[t] he psychologist avoids multiple relationships.' They acknowledge that acting in a therapeutic role for the family member may compromise the psychologist's objectivity. Existing Guideline 7: 'Psychologists generally avoid conducting a child custody evaluation in a case in which the psychologist served in a therapeutic role for the child or his or her immediate family or who has had other involvement that may compromise the psychologist's objectivity.' In other words, the psychologist cannot transition from being Mom's therapist to evaluating the family for custodial placement. It should be clear, even as the APA circles the wagons to protect its members, rather than providing oversight for the profession, that therapists have ' and should have ' a loyalty to the client they have been counseling. To suggest that a psychologist can become objective is sheer nonsense, and the APA should be ashamed of this obvious travesty that is designed only to bolster full employment for its members. Lawyers should not allow therapists to usurp the province of the court, and we should be prepared to cross-examine them carefully on their justification for the changes, if indeed these new 'guidelines pass. The APA should rethink these proposals.

Lynne Z Gold-Bikin, a member of this newsletter's Board of Editors, is a partner in Philadelphia's Wolf, Block, Schorr & Solis-Cohen LLP. She is the Chair of the Family Law Department.