Forensic Custody Assessments

In recent years, a series of scholarly writers have raised substantive questions about the role taken on by forensic mental health evaluators in custody and access matters. Such critiques have ranged from:

1. The observation that what forensic psychologists are willing to say in their custody evaluation reports represent an egregious form of overreaching that is ethically questionable (e.g., Melton, Petrila, Poythress, Slobogin, (2007). Psychological evaluations for the courts, (3nd ed.). New York: Guilford Press; Woody, R.H., Child Custody: Practice Standards, Ethical Issues & Legal Standards for Mental Health Professionals. Professional Resource Press (2000), p. 128); to
2. More nuanced models parsing what can and cannot be justifiably offered by psychologists in their assessments (Emery, R., Otto, R., & O'Donohue, William (2005) A Critical Assessment of Child Custody Evaluations: Limited Science and a Flawed System. Psychological Science in the Public Interest. Vol 6 (1), p 24; Tippins, T.M. and Wittmann, J.J.P. (2005). Empirical And Ethical Problems With Custody Recommendations: A Call For Clinical Humility And Judicial Vigilence. 43 Family. Court. Review. Association of Family and Conciliation Courts); through
3. Suggestions for a complete moratorium on the involvement of mental health professionals in custody and access matters. (e.g., O'Donohue, W. & Bradley, A.R. (1999). Conceptual and empirical issues in child custody evaluations. Clinical Psychology: Science and Practice, 6(3), 310-322).

While these observers offer arguments primarily based on the notion that custody recommendations imply a specialized knowledge base on this topic that, in actuality, either does not exist or is quite thin, most also observe that there are very important evaluative services and information that can be offered by forensic psychologists in an ethical and appropriately circumscribed manner. Let us therefore look at some of the valuable and important information available to family and matrimonial courts via the services of skilled forensic psychologists who are cautious to ground their opinions in the empirically verified specialized knowledge base of their profession. When forensic psychologists observes the proper boundaries of their roles within the child custody system, there is no reason to throw out these professionals' valuable contributions to the discussion.

A Four-Level Model of Forensic Clinical Judgment

Tippins and Wittmann (supra) offered a multi-level model for describing the various kinds of information gathered by forensic psychologists and subsequently offered to the courts. The model progresses from simple observations through various psychological constructs related to the functioning of parents and children, culminating in higher level inferences about various custody-relevant issues. This model will be used to highlight areas of valuable input that forensic psychologists can bring to the table as courts and attorneys struggle with the task of settling or deciding difficult custody and access matters.

Level I: Factual Information

In the Tippins and Wittmann (2005) model, this foundational level of information gathering essentially represents “just the facts, Ma'am.” Mental health professionals bring to the evaluation task the same sense organs as the rest of their species but, hopefully, also arrive with the scientific method as a way of organizing and cautiously processing information and with specialized tools and interview protocols to maximize the gathering of reliable information.

While the psychology literature makes clear the long list of cognitive and heuristic errors that can be made at this level of gathering simple, factual information, with appropriate empirical cautions significant value can be offered to the court. It is quite possible that information at Level I represents some of the most important and reliable information that forensic evaluators can offer. Trained mental health professionals, especially those with a forensic background, have tools for skilled and creative interviewing that can maximize the likelihood of gaining useful information. It is at this level that evaluators can provide an essential “investigative function” for the courts by simply chronicling the stories offered by the litigants any relevant self admissions with respect to allegations in the case.

Level II: Lower-Level  Psychological Inferences

This level represents a jump up with respect to the level of abstraction and clinical judgment involved. It includes psychological inferences about the litigants and their child that go beyond actual observations (She sat and wept and spoke of not sleeping) to psychological conclusions (“When combined with her MMPI-2 [Minnesota Multiphasic Personality Inventory] results, this observation suggests clinical depression”).

The increase to a higher level of inferences bring with it concomitant increases in the potential for judgmental error and contamination of the clinical judgment process with unverified assumptions and values on the part of the forensic clinician. However, substantial, case-relevant information that is helpful to the court can also be offered at this level. There is a universe of knowledge in the psychological library about adult and child psychological function. There is substantial research on the effect of psychological disorders in parents and of parenting styles on children. Our knowledge of the effects of divorce on children has dramatically increased with the addition of information about how certain toxic divorce-related dynamics have negative implications for children. In addition there is verified information, likely to be helpful to courts, on such topics as domestic violence or parental hostility and child alienation, etc, to name only a small sample. In addition, when specific psychological allegations are in play in a custody or access matter, Level II information (i.e., father does, or does not appear to have a bipolar disorder) can help resolve competing assertions by the litigants. Most importantly, information at Level II can include conclusions by the forensic evaluator about a child's unique emotional pain, or even his preferences at a time his family is dissolving or arguing in court.

Level III: Outline of Psychological Risks/Benefits

At this level, with another significant jump in the level of inference, the evaluator begins to analyze and combine the psychological conclusions from Level II into an outline for the court. This would include the relative psychological risks/benefits associated with each parent and, possibly, with various access plans. Again, while this jump in the level of inference brings with it an increase in the potential for evaluator bias or error to lead the forensic expert astray, with appropriate
empirical constraints (such as a requirement that the evaluator cite research literature) very valuable information can be made available to the court.

The most beneficial offering here appears to be a cautious summary of the psychological risks/benefits of placement with each parent, or of placement in a joint arrangement (with reference to the research literature that undergirds such assertions). It is at Level III that the evaluator most fully takes on the role of “educator of the court,” without crossing the line into specifically telling the court what it should do. A full and comprehensive listing of the risks associated with each parent, for example, can put the finder of fact in a much better position to make an informed decision without having its role usurped by the evaluator. Another important contribution is the chance to amplify for the court the ways in which children's special needs suggest that certain kinds of scheduling and planning may be particularly toxic for them emotionally.

Level IV: Making a Recommendation

“Helpfulness” to the judiciary is constricted by the degree to which the information conveyed may be viewed as sufficiently reliable. At level IV, the evaluator decides to go beyond psychological inferences and a risk analysis to an explicit statement to the court about what he or she recommends be done with the children (“Therefore Your Honor, I recommend that the children be placed primarily with their father”). For a host of reliability-related and jurisprudence-related reasons, the choice by evaluators to step into this “level” and make specific recommendations represents an extreme form of overreach beyond what our psychological library allows us to say with any reasonable degree of certainty. It is for this reason that it appears mental health disciplines have little of value to offer beyond levels, I, II, and III.

Conclusion

While the willingness of forensic evaluators to offer Level-IV recommendations to courts has come under substantial scrutiny and attack in recent years, this scholarly debate has often overshadowed the fact that, as the four-level model
actually argues, the psychological discipline has substantial, helpful and sufficiently reliable information to assist triers of fact at Levels I, II, and III. The careful scrutiny of forensic reports for information at these appropriate levels, and an under-emphasis on anything said at Level IV, should lead to a more empirically grounded processing of forensic evaluator reports.

Jeffrey P. Wittmann, Ph.D., a member of this newsletter's Board of Editors, is a licensed psychologist and trial consultant at the Center for Forensic Psychology in Albany. He conducts forensic work product reviews for attorneys and is the author of Custody Chaos, Personal Peace (Penguin, 2001). He can be reached at [email protected].

In recent years, a series of scholarly writers have raised substantive questions about the role taken on by forensic mental health evaluators in custody and access matters. Such critiques have ranged from:

1. The observation that what forensic psychologists are willing to say in their custody evaluation reports represent an egregious form of overreaching that is ethically questionable (e.g., Melton, Petrila, Poythress, Slobogin, (2007). Psychological evaluations for the courts, (3nd ed.). New York: Guilford Press; Woody, R.H., Child Custody: Practice Standards, Ethical Issues & Legal Standards for Mental Health Professionals. Professional Resource Press (2000), p. 128); to
2. More nuanced models parsing what can and cannot be justifiably offered by psychologists in their assessments (Emery, R., Otto, R., & O'Donohue, William (2005) A Critical Assessment of Child Custody Evaluations: Limited Science and a Flawed System. Psychological Science in the Public Interest. Vol 6 (1), p 24; Tippins, T.M. and Wittmann, J.J.P. (2005). Empirical And Ethical Problems With Custody Recommendations: A Call For Clinical Humility And Judicial Vigilence. 43 Family. Court. Review. Association of Family and Conciliation Courts); through
3. Suggestions for a complete moratorium on the involvement of mental health professionals in custody and access matters. (e.g., O'Donohue, W. & Bradley, A.R. (1999). Conceptual and empirical issues in child custody evaluations. Clinical Psychology: Science and Practice, 6(3), 310-322).

While these observers offer arguments primarily based on the notion that custody recommendations imply a specialized knowledge base on this topic that, in actuality, either does not exist or is quite thin, most also observe that there are very important evaluative services and information that can be offered by forensic psychologists in an ethical and appropriately circumscribed manner. Let us therefore look at some of the valuable and important information available to family and matrimonial courts via the services of skilled forensic psychologists who are cautious to ground their opinions in the empirically verified specialized knowledge base of their profession. When forensic psychologists observes the proper boundaries of their roles within the child custody system, there is no reason to throw out these professionals' valuable contributions to the discussion.

A Four-Level Model of Forensic Clinical Judgment

Tippins and Wittmann (supra) offered a multi-level model for describing the various kinds of information gathered by forensic psychologists and subsequently offered to the courts. The model progresses from simple observations through various psychological constructs related to the functioning of parents and children, culminating in higher level inferences about various custody-relevant issues. This model will be used to highlight areas of valuable input that forensic psychologists can bring to the table as courts and attorneys struggle with the task of settling or deciding difficult custody and access matters.

Level I: Factual Information

In the Tippins and Wittmann (2005) model, this foundational level of information gathering essentially represents “just the facts, Ma'am.” Mental health professionals bring to the evaluation task the same sense organs as the rest of their species but, hopefully, also arrive with the scientific method as a way of organizing and cautiously processing information and with specialized tools and interview protocols to maximize the gathering of reliable information.

While the psychology literature makes clear the long list of cognitive and heuristic errors that can be made at this level of gathering simple, factual information, with appropriate empirical cautions significant value can be offered to the court. It is quite possible that information at Level I represents some of the most important and reliable information that forensic evaluators can offer. Trained mental health professionals, especially those with a forensic background, have tools for skilled and creative interviewing that can maximize the likelihood of gaining useful information. It is at this level that evaluators can provide an essential “investigative function” for the courts by simply chronicling the stories offered by the litigants any relevant self admissions with respect to allegations in the case.

Level II: Lower-Level  Psychological Inferences

This level represents a jump up with respect to the level of abstraction and clinical judgment involved. It includes psychological inferences about the litigants and their child that go beyond actual observations (She sat and wept and spoke of not sleeping) to psychological conclusions (“When combined with her MMPI-2 [Minnesota Multiphasic Personality Inventory] results, this observation suggests clinical depression”).

The increase to a higher level of inferences bring with it concomitant increases in the potential for judgmental error and contamination of the clinical judgment process with unverified assumptions and values on the part of the forensic clinician. However, substantial, case-relevant information that is helpful to the court can also be offered at this level. There is a universe of knowledge in the psychological library about adult and child psychological function. There is substantial research on the effect of psychological disorders in parents and of parenting styles on children. Our knowledge of the effects of divorce on children has dramatically increased with the addition of information about how certain toxic divorce-related dynamics have negative implications for children. In addition there is verified information, likely to be helpful to courts, on such topics as domestic violence or parental hostility and child alienation, etc, to name only a small sample. In addition, when specific psychological allegations are in play in a custody or access matter, Level II information (i.e., father does, or does not appear to have a bipolar disorder) can help resolve competing assertions by the litigants. Most importantly, information at Level II can include conclusions by the forensic evaluator about a child's unique emotional pain, or even his preferences at a time his family is dissolving or arguing in court.

Level III: Outline of Psychological Risks/Benefits

At this level, with another significant jump in the level of inference, the evaluator begins to analyze and combine the psychological conclusions from Level II into an outline for the court. This would include the relative psychological risks/benefits associated with each parent and, possibly, with various access plans. Again, while this jump in the level of inference brings with it an increase in the potential for evaluator bias or error to lead the forensic expert astray, with appropriate
empirical constraints (such as a requirement that the evaluator cite research literature) very valuable information can be made available to the court.

The most beneficial offering here appears to be a cautious summary of the psychological risks/benefits of placement with each parent, or of placement in a joint arrangement (with reference to the research literature that undergirds such assertions). It is at Level III that the evaluator most fully takes on the role of “educator of the court,” without crossing the line into specifically telling the court what it should do. A full and comprehensive listing of the risks associated with each parent, for example, can put the finder of fact in a much better position to make an informed decision without having its role usurped by the evaluator. Another important contribution is the chance to amplify for the court the ways in which children's special needs suggest that certain kinds of scheduling and planning may be particularly toxic for them emotionally.

Level IV: Making a Recommendation

“Helpfulness” to the judiciary is constricted by the degree to which the information conveyed may be viewed as sufficiently reliable. At level IV, the evaluator decides to go beyond psychological inferences and a risk analysis to an explicit statement to the court about what he or she recommends be done with the children (“Therefore Your Honor, I recommend that the children be placed primarily with their father”). For a host of reliability-related and jurisprudence-related reasons, the choice by evaluators to step into this “level” and make specific recommendations represents an extreme form of overreach beyond what our psychological library allows us to say with any reasonable degree of certainty. It is for this reason that it appears mental health disciplines have little of value to offer beyond levels, I, II, and III.

Conclusion

While the willingness of forensic evaluators to offer Level-IV recommendations to courts has come under substantial scrutiny and attack in recent years, this scholarly debate has often overshadowed the fact that, as the four-level model
actually argues, the psychological discipline has substantial, helpful and sufficiently reliable information to assist triers of fact at Levels I, II, and III. The careful scrutiny of forensic reports for information at these appropriate levels, and an under-emphasis on anything said at Level IV, should lead to a more empirically grounded processing of forensic evaluator reports.

Jeffrey P. Wittmann, Ph.D., a member of this newsletter's Board of Editors, is a licensed psychologist and trial consultant at the Center for Forensic Psychology in Albany. He conducts forensic work product reviews for attorneys and is the author of Custody Chaos, Personal Peace (Penguin, 2001). He can be reached at [email protected].