Diagnostic Distractions

There is little question that diagnostic labels can be prejudicial. Common human encounters teach us that this is so. If the person speaking is believed to be mentally disordered, his or her words are taken less seriously. Images of delusional dangerousness may all too quickly, and perhaps unjustifiably, spring to mind and act as a filter, discounting the credibility of whatever the presumably disordered individual may say. In the custody arena, a judge may, other things being equal, decide against the parent who has been psychiatrically labeled, even though that parent may be the better choice. In effect, the use of prejudicial diagnostic jargon can mislead the court by distracting it from the relevant inquiry of parenting capacity.

In this regard, the APA Guidelines for Child Custody Evaluations declare: “The focus of the evaluation is on parenting capacity, the psychological and developmental needs of the child, and the resulting fit.” (Guidelines for Child Custody Evaluations in Divorce Proceedings, ' I.3, Am Psychologist, American Psychological Association, July 1994 Vol. 49, No. 7, 677-680.)

Proper evaluative emphasis is upon the child's needs and “the functional ability of each parent to meet these needs” Guidelines for Child Custody Evaluations in Divorce Proceedings,” ' I.3, Am Psychologist, American Psychological Association, July 1994 Vol. 49, No. 7, 677-680). For a diagnosis to be relevant, therefore, evidence must be presented that there is a nexus between the identified disorder and the functional ability of the parent to meet the child's needs. Absent that nexus, a diagnosis may be not only prejudicial but altogether irrelevant.

Various practice protocols have recognized the essentiality of such a nexus, as well as the potential danger of undue diagnostic focus in custody evaluations. The American Academy of Child and Adolescent Psychiatry's Practice Parameters for Child Custody Evaluations state: “It is not necessary to render a DSM-IV diagnosis in a custody dispute. The process is an evaluation of parenting, not a psychiatric evaluation.” (Practice Parameters for Child Custody Evaluations, ' I.C.7, J Am Acad Child Adolesc Psychiatry, 1997, 36:57S-68S.)

The Association of Family and Conciliation Courts' (AFCC) Model Standards of Practice for Child Custody Evaluation go further and speak to the issue more fully, explicating the dangerous distraction that diagnoses can create:

Evaluators recognize that the use of diagnostic labels can divert attention from the focus of the evaluation (namely, the functional abilities of the litigants whose disputes are before the court) and that such labels are often more prejudicial than probative. For these reasons, evaluators shall give careful consideration to the inclusion of diagnostic labels in their reports. In evaluating a litigant, where significant deficiencies are noted, evaluators shall specify the manner in which the noted deficiencies bear upon the issues before the court. (Model Standards of Practice for Child Custody Evaluation, ' 4.6(c), Fam Court Rev, Vol. 45 No. 1, January 2007 70'91.)

The Limitations of Diagnoses

The Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association ' in some circles known as the psychiatric “billing bible” ' was originally published in 1952. It was 132 pages in length. The original manual was revised with the publication of DSM-II in 1968, further revised in 1980 with the publication of DSM-III, again in 1987 with the DSM-III-R. In 1994, DSM-III-R was replaced by DSM-IV, which was itself supplanted in 2000 by the DSM-IV-TR. Each revision was intended to address weaknesses and limitations in the preceding version. Presently, a Task Force of the American Psychiatric Association is working on DSM-V. DSM-V could well bring about wholesale changes in the diagnostic system, adding or deleting identified disorders and changing the criteria used to make the various diagnoses.

Given the generally accelerating rate of revision and the ongoing effort to address the weaknesses and limitations of the current version, it would seem clear that those charged with the task of creating a scientific classification system recognize that it is still in the experimental stage and has yet to reach the level of empirically demonstrable validity. (Frye v. U.S., 54 App.D.C. 46, 293 F. 1013 [1923]) In other words, they have yet to get it right. If they had, they could stop working on it.

Thus, today's version, DSM-IV-TR, is actually its sixth iteration. In contrast to the 132-page DSM-I, the current rendition, runs to 943 pages, full of psychiatric pejoratives to attach to people whose behavior matches specified indicators. Whether or not we collectively have become seven times sicker over the past 56 years may be an open question, but clearly the mental health profession can bill for many, many more “disorders” than ever before.

While some proponents of the DSM claim that it represents a scientific system of classification, this is far from an accurate characterization. The construction of the DSM, at root, is a political process, with small work groups deciding by vote whether a particular disorder should be included and what criteria should be specified as indicators of the presence of that disorder. Perhaps the most trenchant example of the political nature of the DSM process is that prior to the DSM-III, published in 1981, the American Psychiatric Association classified homosexuality as a mental disorder. After a controversial vote, the designation was dropped. This was not the result of a major scientific breakthrough, nor was it because the nature of homosexuality had changed. It was because relevant social, moral, and political values had evolved. One can only begin to speculate about how many lives were adversely impacted over the span of almost 30 years, during which homosexuals were stigmatized by a label fixed upon them by the psychiatric profession on the basis of its members' personal values. To the extent that the labels of mental disorder are based upon personal values, rather than empirically validated knowledge derived through the method of science, one must question the very basis of the diagnostic process.

The Boundaries of Normality

The limitations of the DSM have not been lost on serious scholars in the field or even upon those who participated in its construction. Dr. Thomas A. Widiger, who served as Research Coordinator for the American Psychiatric Association's DSM-IV Task Force, together with Dr. Lee Anna Clark, wrote:

The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) developed by the American Psychiatric Association (1994) is a compelling effort at a best approximation to date of a scientifically based nomenclature, but even its authors have acknowledged that its diagnoses and criterion sets are highly debatable. Well-meaning clinicians, theorists, and researchers could find some basis for fault in virtually every sentence due in part to the absence of adequate research to guide its construction. (Widiger, T.A., Clark, L.A., “Toward DSM-V and The Classification of Psychopathology,” Psychological Bulletin, November 2000, Vol. 126, No. 6, 946-963 [APA)].

The questionable scientific validity of the DSM extends even to the basic issue of whether the nomenclature of the “diagnostic system can differentiate abnormality from normality.” (Widiger & Clark) Indeed, the “difficult task facing the authors of DSM-V will be establishing meaningful boundaries or points of demarcation between normal and abnormal psychological functioning, if any such distinctions can in fact be made.” (Widiger & Clark) If such a basic issue as distinguishing normal from abnormal behavior remains unresolved, reliance upon the DSM in a forensic setting, where basic human liberties and considerations of due process hang in the balance, is extremely troubling if not unconscionable. Diagnostic conclusions predicated on a system that fails to provide “adequate guidance ' for establishing the threshold for any particular mental disorder's diagnosis,” (Widiger & Clark) threatens to mislead the court and trammel upon the rights of the litigants and their children.

As noted, over the course of the DSM's development, the proliferation of new “disorders” has expanded the size of the volume from 132 to 943 pages. Widiger and Clark point out: “The boundaries of the diagnostic manual are increasing with each edition, and there has been vocal concern that much of this expansion represents an encroachment on normal problems of living.”

This inexorable trend of adding more and more identified disorders with each new edition, blurring the distinction between normal and abnormal behavior, poses a serious risk that using the DSM will result in the over-diagnosis of psychopathology, labeling every idiosyncratic quirk of human behavior as evidence of a disorder. We may well have reached a point where there is no discernable distinction between normality and abnormality, where one is hard put to distinguish between an untreated case of Oppositional Defiance Disorder and a reasonably well-adjusted trial lawyer, and where the only meaningful way to categorize people is as either “diagnosed” or “soon to be diagnosed.”

Dangers of Forensic Use

The DSM was designed principally for use in the clinical or treatment setting. It was not designed for use in the forensic setting. In addition to the various problems of validity and reliability mentioned above, using the DSM diagnostic system at all in a forensic setting is controversial and risky. DSM-IV itself clearly acknowledges its limitations when used in a forensic setting:

When the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis (DSM-IV-TR, p. Xxxii-xxxiii).

This cautionary note is consistent with the AFCC's admonition that the use of diagnostic labels can divert the court's attention from what should be the focus of the evaluation, namely, the functional abilities of the contending parents. (AFCC, Model Standards, ' 4.6[c])

Two additional warnings from within the pages of the DSM underscore the danger of using its diagnostic labels and criteria in a forensic setting. First, the fact that an individual may meet the specified criteria for a DSM diagnosis does not necessarily mean that the individual has behaved in the past or will behave in the future in any particular manner:

Moreover, the fact that an individual's presentation meets the criteria for a DSM-IV diagnosis does not carry any necessary implication regarding the individual's degree of control over the behaviors that may be associated with the disorder. Even when diminished control over one's behavior is a feature of the disorder, having the diagnosis in itself does not demonstrate that a particular individual is (or was) unable to control his or her behavior at a particular time (DSM-IV-TR, p. Xxxii-xxxiii).

Second, because the diagnostic label ought not to be seen as a statement of the individual's behavior, when an evaluator uses such labels he or she is obliged to caution non-clinical decision makers, such as judges and lawyers, “that a diagnosis does not carry any necessary implications regarding the causes of the individual's mental disorder or its associated impairments.” (DSM-IV-TR, p. xxxii-xxxiii) This critical warning is often absent in the evaluation reports that stigmatize the litigants with such labels. This is a critical omission that implicates both the competence and the neutrality of the evaluator.

An Example

The importance of the disclaimers with respect to forensic reliance contained within the DSM itself, and the cautionary notes sounded by the practice protocols and scholarly writers, can be readily exemplified.

Suppose that a parent meets the requisite criteria for a diagnosis of narcissistic personality disorder. The accuracy of the diagnoses is being assumed in this example. However, the practitioner should be alert to the possibility of misdiagnosis. “Some test responses, for example, may elevate scores on measures of narcissism when in fact they are the responses that some test takers in custody evaluation context may give in an effort to look good; therefore, what appears to be narcissism may, in fact, be something else. Context is everything. Unskilled interpreters (and/or those who rely heavily on computer-generated interpretive reports) frequently fail to adequately factor in the context within which our tests are being taken.” David A. Martindale (personal communication, 2008). While one might be tempted to infer that a personality disorder marked by an inclination toward grandiosity and ego-feeding must carry negative implications for parenting, that is not necessarily so. The relevant question, once the diagnosis of narcissistic personality disorder is accepted, is: “What, if anything, does the empirical research demonstrate to be the impact of this disorder upon parenting function?” As noted in this regard in one authoritative text, “there has been some theoretical consideration of parenting processes but no systematic research.” (Bornstein, M.H., Handbook of Parenting, Second Edition, Vol. 4, p. 312, Lawrence Erlbaum Associates, 2002) In the absence of replicable and testable research (Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), theories are like noses. Most people have at least one.

As one prolific writer in the field of custody evaluation has opined, narcissism may be either a positive or a negative in terms of parenting, depending upon how it is fed. If it is fed through a high intensity commitment to professional or business success, manifesting in 100-hour work weeks away from the home, it might well be seen as having a negative impact on parenting. Conversely, however, if the parent feeds his or her narcissism by devotion to parenthood, an ego-driven desire to be super parent, coaching the kids' teams, never missing their school plays and concerts, assisting with their homework, always being available to discuss the children's problems and helping to resolve them with understanding and without overly critical judgment, that is quite another story. In this event, the children may benefit greatly from the parenting behavior notwithstanding its narcissistic origin. Martindale, D.A. (personal communication, 2008). Accordingly, the point of the AFCC admonition is well taken; the focus of attention ought to be placed on the parenting behaviors and their impact on the children rather than on a diagnostic label.

Conclusion

Given the absence of adequate research to guide the construction of the DSM and the acknowledgement by its creators that its diagnoses and criterion sets are “highly debatable,” forensic reliance upon it is extremely suspect. The trend toward increasing judicial scrutiny of the reliability and validity of expert opinion testimony should move the custody court to bring pungent skepticism to bear on the assertion of diagnostic conclusions. Unless research-based evidence, as opposed to theoretical speculation, is presented to demonstrate that a particular disorder impacts on parenting capacity, the diagnosis should be regarded as irrelevant.

Timothy M. Tippins, a member of this newsletter's Board of Editors, practices exclusively as special counsel in contested custody cases. He is an Adjunct Professor of Forensic Psychology at Siena College and an Adjunct Professor of Law at Albany Law School.

Custody evaluations often contain statements of diagnosis that label one of the parties as suffering from a mental disorder. Such diagnoses typically are based upon the Diagnostic and Statistical Manual of Mental Disorders, a diagnostic classification system promulgated by the American Psychiatric Association (APA). This article explores the question of whether diagnostic labels have a legitimate place in the custody evaluation context and related evidentiary considerations of reliability, validity, relevance, and prejudice.

Are Diagnoses Relevant?

Evidentiary analysis requires that probative value be weighed against the potential prejudice that any piece of evidence may produce. Where the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, the evidence may be excluded (Federal Rules of Evidence (FRE) 403).

There is little question that diagnostic labels can be prejudicial. Common human encounters teach us that this is so. If the person speaking is believed to be mentally disordered, his or her words are taken less seriously. Images of delusional dangerousness may all too quickly, and perhaps unjustifiably, spring to mind and act as a filter, discounting the credibility of whatever the presumably disordered individual may say. In the custody arena, a judge may, other things being equal, decide against the parent who has been psychiatrically labeled, even though that parent may be the better choice. In effect, the use of prejudicial diagnostic jargon can mislead the court by distracting it from the relevant inquiry of parenting capacity.

In this regard, the APA Guidelines for Child Custody Evaluations declare: “The focus of the evaluation is on parenting capacity, the psychological and developmental needs of the child, and the resulting fit.” (Guidelines for Child Custody Evaluations in Divorce Proceedings, ' I.3, Am Psychologist, American Psychological Association, July 1994 Vol. 49, No. 7, 677-680.)

Proper evaluative emphasis is upon the child's needs and “the functional ability of each parent to meet these needs” Guidelines for Child Custody Evaluations in Divorce Proceedings,” ' I.3, Am Psychologist, American Psychological Association, July 1994 Vol. 49, No. 7, 677-680). For a diagnosis to be relevant, therefore, evidence must be presented that there is a nexus between the identified disorder and the functional ability of the parent to meet the child's needs. Absent that nexus, a diagnosis may be not only prejudicial but altogether irrelevant.

Various practice protocols have recognized the essentiality of such a nexus, as well as the potential danger of undue diagnostic focus in custody evaluations. The American Academy of Child and Adolescent Psychiatry's Practice Parameters for Child Custody Evaluations state: “It is not necessary to render a DSM-IV diagnosis in a custody dispute. The process is an evaluation of parenting, not a psychiatric evaluation.” (Practice Parameters for Child Custody Evaluations, ' I.C.7, J Am Acad Child Adolesc Psychiatry, 1997, 36:57S-68S.)

The Association of Family and Conciliation Courts' (AFCC) Model Standards of Practice for Child Custody Evaluation go further and speak to the issue more fully, explicating the dangerous distraction that diagnoses can create:

Evaluators recognize that the use of diagnostic labels can divert attention from the focus of the evaluation (namely, the functional abilities of the litigants whose disputes are before the court) and that such labels are often more prejudicial than probative. For these reasons, evaluators shall give careful consideration to the inclusion of diagnostic labels in their reports. In evaluating a litigant, where significant deficiencies are noted, evaluators shall specify the manner in which the noted deficiencies bear upon the issues before the court. (Model Standards of Practice for Child Custody Evaluation, ' 4.6(c), Fam Court Rev, Vol. 45 No. 1, January 2007 70'91.)

The Limitations of Diagnoses

The Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association ' in some circles known as the psychiatric “billing bible” ' was originally published in 1952. It was 132 pages in length. The original manual was revised with the publication of DSM-II in 1968, further revised in 1980 with the publication of DSM-III, again in 1987 with the DSM-III-R. In 1994, DSM-III-R was replaced by DSM-IV, which was itself supplanted in 2000 by the DSM-IV-TR. Each revision was intended to address weaknesses and limitations in the preceding version. Presently, a Task Force of the American Psychiatric Association is working on DSM-V. DSM-V could well bring about wholesale changes in the diagnostic system, adding or deleting identified disorders and changing the criteria used to make the various diagnoses.

Given the generally accelerating rate of revision and the ongoing effort to address the weaknesses and limitations of the current version, it would seem clear that those charged with the task of creating a scientific classification system recognize that it is still in the experimental stage and has yet to reach the level of empirically demonstrable validity. ( Frye v. U.S. , 54 App.D.C. 46, 293 F. 1013 [1923]) In other words, they have yet to get it right. If they had, they could stop working on it.

Thus, today's version, DSM-IV-TR, is actually its sixth iteration. In contrast to the 132-page DSM-I, the current rendition, runs to 943 pages, full of psychiatric pejoratives to attach to people whose behavior matches specified indicators. Whether or not we collectively have become seven times sicker over the past 56 years may be an open question, but clearly the mental health profession can bill for many, many more “disorders” than ever before.

While some proponents of the DSM claim that it represents a scientific system of classification, this is far from an accurate characterization. The construction of the DSM, at root, is a political process, with small work groups deciding by vote whether a particular disorder should be included and what criteria should be specified as indicators of the presence of that disorder. Perhaps the most trenchant example of the political nature of the DSM process is that prior to the DSM-III, published in 1981, the American Psychiatric Association classified homosexuality as a mental disorder. After a controversial vote, the designation was dropped. This was not the result of a major scientific breakthrough, nor was it because the nature of homosexuality had changed. It was because relevant social, moral, and political values had evolved. One can only begin to speculate about how many lives were adversely impacted over the span of almost 30 years, during which homosexuals were stigmatized by a label fixed upon them by the psychiatric profession on the basis of its members' personal values. To the extent that the labels of mental disorder are based upon personal values, rather than empirically validated knowledge derived through the method of science, one must question the very basis of the diagnostic process.

The Boundaries of Normality

The limitations of the DSM have not been lost on serious scholars in the field or even upon those who participated in its construction. Dr. Thomas A. Widiger, who served as Research Coordinator for the American Psychiatric Association's DSM-IV Task Force, together with Dr. Lee Anna Clark, wrote:

The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) developed by the American Psychiatric Association (1994) is a compelling effort at a best approximation to date of a scientifically based nomenclature, but even its authors have acknowledged that its diagnoses and criterion sets are highly debatable. Well-meaning clinicians, theorists, and researchers could find some basis for fault in virtually every sentence due in part to the absence of adequate research to guide its construction. (Widiger, T.A., Clark, L.A., “Toward DSM-V and The Classification of Psychopathology,” Psychological Bulletin, November 2000, Vol. 126, No. 6, 946-963 [APA)].

The questionable scientific validity of the DSM extends even to the basic issue of whether the nomenclature of the “diagnostic system can differentiate abnormality from normality.” (Widiger & Clark) Indeed, the “difficult task facing the authors of DSM-V will be establishing meaningful boundaries or points of demarcation between normal and abnormal psychological functioning, if any such distinctions can in fact be made.” (Widiger & Clark) If such a basic issue as distinguishing normal from abnormal behavior remains unresolved, reliance upon the DSM in a forensic setting, where basic human liberties and considerations of due process hang in the balance, is extremely troubling if not unconscionable. Diagnostic conclusions predicated on a system that fails to provide “adequate guidance ' for establishing the threshold for any particular mental disorder's diagnosis,” (Widiger & Clark) threatens to mislead the court and trammel upon the rights of the litigants and their children.

As noted, over the course of the DSM's development, the proliferation of new “disorders” has expanded the size of the volume from 132 to 943 pages. Widiger and Clark point out: “The boundaries of the diagnostic manual are increasing with each edition, and there has been vocal concern that much of this expansion represents an encroachment on normal problems of living.”

This inexorable trend of adding more and more identified disorders with each new edition, blurring the distinction between normal and abnormal behavior, poses a serious risk that using the DSM will result in the over-diagnosis of psychopathology, labeling every idiosyncratic quirk of human behavior as evidence of a disorder. We may well have reached a point where there is no discernable distinction between normality and abnormality, where one is hard put to distinguish between an untreated case of Oppositional Defiance Disorder and a reasonably well-adjusted trial lawyer, and where the only meaningful way to categorize people is as either “diagnosed” or “soon to be diagnosed.”

Dangers of Forensic Use

The DSM was designed principally for use in the clinical or treatment setting. It was not designed for use in the forensic setting. In addition to the various problems of validity and reliability mentioned above, using the DSM diagnostic system at all in a forensic setting is controversial and risky. DSM-IV itself clearly acknowledges its limitations when used in a forensic setting:

When the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis (DSM-IV-TR, p. Xxxii-xxxiii).

This cautionary note is consistent with the AFCC's admonition that the use of diagnostic labels can divert the court's attention from what should be the focus of the evaluation, namely, the functional abilities of the contending parents. (AFCC, Model Standards, ' 4.6[c])

Two additional warnings from within the pages of the DSM underscore the danger of using its diagnostic labels and criteria in a forensic setting. First, the fact that an individual may meet the specified criteria for a DSM diagnosis does not necessarily mean that the individual has behaved in the past or will behave in the future in any particular manner:

Moreover, the fact that an individual's presentation meets the criteria for a DSM-IV diagnosis does not carry any necessary implication regarding the individual's degree of control over the behaviors that may be associated with the disorder. Even when diminished control over one's behavior is a feature of the disorder, having the diagnosis in itself does not demonstrate that a particular individual is (or was) unable to control his or her behavior at a particular time (DSM-IV-TR, p. Xxxii-xxxiii).

Second, because the diagnostic label ought not to be seen as a statement of the individual's behavior, when an evaluator uses such labels he or she is obliged to caution non-clinical decision makers, such as judges and lawyers, “that a diagnosis does not carry any necessary implications regarding the causes of the individual's mental disorder or its associated impairments.” (DSM-IV-TR, p. xxxii-xxxiii) This critical warning is often absent in the evaluation reports that stigmatize the litigants with such labels. This is a critical omission that implicates both the competence and the neutrality of the evaluator.

An Example

The importance of the disclaimers with respect to forensic reliance contained within the DSM itself, and the cautionary notes sounded by the practice protocols and scholarly writers, can be readily exemplified.

Suppose that a parent meets the requisite criteria for a diagnosis of narcissistic personality disorder. The accuracy of the diagnoses is being assumed in this example. However, the practitioner should be alert to the possibility of misdiagnosis. “Some test responses, for example, may elevate scores on measures of narcissism when in fact they are the responses that some test takers in custody evaluation context may give in an effort to look good; therefore, what appears to be narcissism may, in fact, be something else. Context is everything. Unskilled interpreters (and/or those who rely heavily on computer-generated interpretive reports) frequently fail to adequately factor in the context within which our tests are being taken.” David A. Martindale (personal communication, 2008). While one might be tempted to infer that a personality disorder marked by an inclination toward grandiosity and ego-feeding must carry negative implications for parenting, that is not necessarily so. The relevant question, once the diagnosis of narcissistic personality disorder is accepted, is: “What, if anything, does the empirical research demonstrate to be the impact of this disorder upon parenting function?” As noted in this regard in one authoritative text, “there has been some theoretical consideration of parenting processes but no systematic research.” (Bornstein, M.H., Handbook of Parenting, Second Edition, Vol. 4, p. 312, Lawrence Erlbaum Associates, 2002) In the absence of replicable and testable research ( Daubert v. Merrill Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786 (1993), theories are like noses. Most people have at least one.

As one prolific writer in the field of custody evaluation has opined, narcissism may be either a positive or a negative in terms of parenting, depending upon how it is fed. If it is fed through a high intensity commitment to professional or business success, manifesting in 100-hour work weeks away from the home, it might well be seen as having a negative impact on parenting. Conversely, however, if the parent feeds his or her narcissism by devotion to parenthood, an ego-driven desire to be super parent, coaching the kids' teams, never missing their school plays and concerts, assisting with their homework, always being available to discuss the children's problems and helping to resolve them with understanding and without overly critical judgment, that is quite another story. In this event, the children may benefit greatly from the parenting behavior notwithstanding its narcissistic origin. Martindale, D.A. (personal communication, 2008). Accordingly, the point of the AFCC admonition is well taken; the focus of attention ought to be placed on the parenting behaviors and their impact on the children rather than on a diagnostic label.

Conclusion

Given the absence of adequate research to guide the construction of the DSM and the acknowledgement by its creators that its diagnoses and criterion sets are “highly debatable,” forensic reliance upon it is extremely suspect. The trend toward increasing judicial scrutiny of the reliability and validity of expert opinion testimony should move the custody court to bring pungent skepticism to bear on the assertion of diagnostic conclusions. Unless research-based evidence, as opposed to theoretical speculation, is presented to demonstrate that a particular disorder impacts on parenting capacity, the diagnosis should be regarded as irrelevant.

Timothy M. Tippins, a member of this newsletter's Board of Editors, practices exclusively as special counsel in contested custody cases. He is an Adjunct Professor of Forensic Psychology at Siena College and an Adjunct Professor of Law at Albany Law School.