Children's Best Interests and Coached Custody Litigants

Though empirical data are not available, many who work in the family law field have come to a disturbing conclusion: Mental health professionals (MHPs) are engaging in activities, the objective of which is to assist litigants in presenting themselves to evaluators in deceptive ways. Acting as consultants to attorneys, the MHPs are doing this with increasing frequency. Such activities include providing litigants with information that would facilitate efforts on their part to dissimulate either in response to test items or in response to interview questions.

In the words of subsection “b” of California Rule 5.220, “Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues.” Mental health professionals subvert the justice system when they assist litigants in presenting themselves to evaluators ' and, subsequently, to judges ' as being that which they are not.

What Litigants Want Evaluators to See

We are inclined to take for granted that most custody litigants believe in themselves; specifically, we assume that those who describe themselves as superior parents believe their own descriptions. Our view of the general sincerity of custody litigants flows logically from a more basic assumption: that most parents are emotionally invested in developing parenting plans that are in the best interests of their children. Where each parent litigates because each believes that s/he is the more suitable custodian, as the parents approach the evaluation, the hope of each is that the evaluator will see each of them accurately. In such a situation, the presumption of each parent is that “if the evaluator gets an accurate picture of me, I will
prevail.”

It comes as no surprise that some litigating parents are well aware of their parenting deficiencies and enter the evaluation process hoping to hide or minimize their deficiencies and to claim, convincingly, parenting strengths that may be non-existent or present only to a marginal degree. Enter the coaches.

Information Gathering and Opinion Formulation

In cases involving the applicability (or lack thereof) of quasi-judicial immunity to professionals performing evaluative tasks for courts, the states of New Jersey (in Levine v. Wiss & Co., 97 N.J. 242, 478 A.2d 397 [1984]) and Vermont (in Politi v. Tyler, 170 Vt. 428, 751 A.2d 788 [2000]) have dissected the evaluative task and identified its two component parts ' information gathering and opinion formulation.

There can be little doubt that, in adjudicating disputes concerning matters of custodial placement and access, judges make use of information gathered by evaluators and presented in their reports and/or in their testimony. False information imparted to evaluators, and not identified as false, is passed along to judges, often with a soupcon of added credibility because it is being communicated by evaluators who have been court appointed.

Legislators and Perjurers

In a society in which the administration of justice rests so heavily on issues of intent, it is foolish for those who work within the justice system not to give thought to the intent of legislators in enacting various laws. It is reasonable to presume that the purpose of laws forbidding perjury is to prevent material information known by witnesses to be false from being offered in testimony by those witnesses. Mental health professionals who assist custody litigants in efforts to deceive evaluators are aiding those litigants in their attempts to put before the court false information and false impressions of themselves. Though the initial objective is to deceive the evaluator, when cases proceed to trial, the fakery must now be re-played under oath.

Some readers may react negatively to my use of such strong terms as “perjury” and “deceive.” But we are deceiving ourselves if we view the activities that I have described as nothing more than attempts by mental health professionals to counsel custody litigants as we might counsel job applicants. The forms of coaching with which I am concerned go well beyond dispensing advice concerning appropriate grooming and dress.

Lying with Tomorrow's Technology

As far as I know, today's custody litigant coaches do not offer tips in real time. Today's coaches may tell litigants what to say and what not to say during evaluative interviews, how to behave with their spouses during joint parental interviews, how to interact with their children during parent-child observational sessions, and what responses to provide or avoid providing on various psychological tests. But when the coaching sessions have been concluded, the coached litigants are on their own.

Those who, today, are not disturbed by coaching may feel quite differently when litigant coaches begin using technology that is similar to that which currently enables football coaches to instruct quarterbacks on the playing field. The technology already exists that would enable litigant coaches parked outside evaluators' offices to hear the evaluator-litigant oral exchanges and to offer tips to the litigants. Devices are available today that may be easily concealed and could be used to transmit in-office conversations. Additionally, bug-in-the-ear devices, used to speak surreptitiously to those wearing the devices, have been employed by behavioral psychologists since the late 1960s.

Perhaps this technology is not being utilized because litigants (and the attorneys who counsel them) are apprehensive. Awkward pauses between evaluator inquiries and litigant responses might tip off alert evaluators. If no significant stigma is attached to providing coaching services, litigants may be only minimally concerned about being identified as users of those services.

If the technologically enhanced coaching is deemed unacceptable ' as I hope is the case ' should un-enhanced coaching be viewed differently? No difference exists in the objective that underlies each process. Technologically enhanced coaching differs from un-enhanced coaching only with respect to efficiency.

Lying to Evaluators v. Lying to Judges

Perjury involves making a statement under oath that is: 1) false; 2) has been made with knowledge that it is false; and, 3) is material to the issues to be adjudicated. When testifying custody litigants describe themselves, their spouses, their children, or the family interactions and dynamics in ways that the litigants know to be false; when the intention of the litigants in knowingly offering the false statements is to deceive the court; and, when the offering of the false statements has been encouraged by mental health professionals who are functioning as consultants to attorneys, the mental health professionals are subverting justice.

If the mental health professionals are not actually suborning perjury, they are engaging in acts that are the functional equivalent of suborning perjury. Mental health professionals who encourage custody litigants knowingly to offer false information are offering this advice precisely because, acting as consultants to the litigants' attorneys, the mental health professionals have set “victory” (however that might be defined by the litigants and their attorneys) as the goal and have concluded that the probability of securing victory will be increased if the litigants offer false information instead of factually accurate information.

Lying under oath is perjury, although lying to an evaluator is not. Encouraging a litigant to lie under oath is suborning perjury, but encouraging a litigant to lie to an evaluator is not. I submit that some distinctions provide obfuscation rather than clarification and that the foregoing distinctions are among them. Litigants who lie to evaluators do so only because an effectively hoodwinked evaluator becomes a tool used in furtherance of the goal of deceiving a judge. The effectively misinformed evaluator (with the credibility that accompanies the designation “expert”) passes along through his/her testimony fallacious information and flawed opinions.

Encouraging litigants to lie to evaluators is the functional equivalent of suborning perjury. The purpose ' or function ' of the lie told to the evaluator is to deceive the court concerning a matter that is material to the issues being adjudicated. In order for lies told to evaluators to serve their intended function, they must be repeated during testimony. Consequently, an MHP who coaches a litigant to lie to an evaluator commits the functional equivalent of suborning perjury.

In tort cases, a defendant may be found liable for harm caused to a plaintiff, even if the immediate cause of harm lies in the acts of someone else, if it was an act by the defendant that set in motion a chain of events, the outcome of which was reasonably foreseeable. Encouraging a litigant to lie on a self-report inventory, such as the MMPI-2, sets in motion a chain of events that will predictably conclude with the recitation on the stand of the same lies that were offered earlier in the form of responses to test items. Analogizing to the conduct in a tort case, while assisting litigants to lie on tests may not directly constitute subornation of perjury, it sets in motion a process that leads litigants to commit perjury.

The Obligations of Mental Health Professionals

According to the opening sections of the psychologists' ethics code, General Principles, psychologists are obligated to “seek to safeguard the welfare and rights of those with whom they interact professionally and other affected persons [emphasis added] ' “; “are aware of their professional and scientific responsibilities to society and to the specific communities in which they work”; and, “seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology. In these activities psychologists do not steal, cheat, or engage in fraud, subterfuge, or intentional misrepresentation of fact.” Thus, psychologists are ethically bound to promote the truth, not to coach litigants to deceive evaluators and the court in order to reach their stated goal.

Concluding Comments

As mental health professionals contemplate the various services that they can legitimately offer to attorneys, they will have to decide whether or not providing direct assistance to litigants in disputes regarding issues of custodial placement and access is among the appropriate services. If, as I hypothesize will be the case, it is concluded that some direct services are appropriate, but that others are not, decisions will have to be made concerning where, how, and by whom the line should be drawn.

Though it is widely believed that custody litigants are at their best when they are in the offices of evaluators or appearing in court, attorneys and mental health professionals alike are well aware of the exceptions. There are litigants for whom the evaluative context generates a form of anxiety that interferes with their ability to be themselves and to respond in a reasonably articulate manner to questions. Mental health professionals who assist such litigants in dealing more effectively with their anxiety make it easier for evaluators to obtain accurate information and to witness more natural behavior when parent-child interactions are observed. Mental health professionals who help litigants to be themselves are not the problem. Unfortunately, mental health professionals who help litigants dissimulate more effectively are undermining a process the goal of which is to secure for children the best possible outcome under difficult circumstances.

David A. Martindale, a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology, served as the Reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of The Art and Science of Child Custody Evaluations. His practice is limited to consulting with attorneys, psychologists, and psychology licensing boards in the areas of child custody and professional ethics and standards. He can be contacted by e-mail at [email protected].

Though empirical data are not available, many who work in the family law field have come to a disturbing conclusion: Mental health professionals (MHPs) are engaging in activities, the objective of which is to assist litigants in presenting themselves to evaluators in deceptive ways. Acting as consultants to attorneys, the MHPs are doing this with increasing frequency. Such activities include providing litigants with information that would facilitate efforts on their part to dissimulate either in response to test items or in response to interview questions.

In the words of subsection “b” of California Rule 5.220, “Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues.” Mental health professionals subvert the justice system when they assist litigants in presenting themselves to evaluators ' and, subsequently, to judges ' as being that which they are not.

What Litigants Want Evaluators to See

We are inclined to take for granted that most custody litigants believe in themselves; specifically, we assume that those who describe themselves as superior parents believe their own descriptions. Our view of the general sincerity of custody litigants flows logically from a more basic assumption: that most parents are emotionally invested in developing parenting plans that are in the best interests of their children. Where each parent litigates because each believes that s/he is the more suitable custodian, as the parents approach the evaluation, the hope of each is that the evaluator will see each of them accurately. In such a situation, the presumption of each parent is that “if the evaluator gets an accurate picture of me, I will
prevail.”

It comes as no surprise that some litigating parents are well aware of their parenting deficiencies and enter the evaluation process hoping to hide or minimize their deficiencies and to claim, convincingly, parenting strengths that may be non-existent or present only to a marginal degree. Enter the coaches.

Information Gathering and Opinion Formulation

In cases involving the applicability (or lack thereof) of quasi-judicial immunity to professionals performing evaluative tasks for courts, the states of New Jersey (in Levine v. Wiss & Co. , 97 N.J. 242, 478 A.2d 397 [1984]) and Vermont (in Politi v. Tyler , 170 Vt. 428, 751 A.2d 788 [2000]) have dissected the evaluative task and identified its two component parts ' information gathering and opinion formulation.

There can be little doubt that, in adjudicating disputes concerning matters of custodial placement and access, judges make use of information gathered by evaluators and presented in their reports and/or in their testimony. False information imparted to evaluators, and not identified as false, is passed along to judges, often with a soupcon of added credibility because it is being communicated by evaluators who have been court appointed.

Legislators and Perjurers

In a society in which the administration of justice rests so heavily on issues of intent, it is foolish for those who work within the justice system not to give thought to the intent of legislators in enacting various laws. It is reasonable to presume that the purpose of laws forbidding perjury is to prevent material information known by witnesses to be false from being offered in testimony by those witnesses. Mental health professionals who assist custody litigants in efforts to deceive evaluators are aiding those litigants in their attempts to put before the court false information and false impressions of themselves. Though the initial objective is to deceive the evaluator, when cases proceed to trial, the fakery must now be re-played under oath.

Some readers may react negatively to my use of such strong terms as “perjury” and “deceive.” But we are deceiving ourselves if we view the activities that I have described as nothing more than attempts by mental health professionals to counsel custody litigants as we might counsel job applicants. The forms of coaching with which I am concerned go well beyond dispensing advice concerning appropriate grooming and dress.

Lying with Tomorrow's Technology

As far as I know, today's custody litigant coaches do not offer tips in real time. Today's coaches may tell litigants what to say and what not to say during evaluative interviews, how to behave with their spouses during joint parental interviews, how to interact with their children during parent-child observational sessions, and what responses to provide or avoid providing on various psychological tests. But when the coaching sessions have been concluded, the coached litigants are on their own.

Those who, today, are not disturbed by coaching may feel quite differently when litigant coaches begin using technology that is similar to that which currently enables football coaches to instruct quarterbacks on the playing field. The technology already exists that would enable litigant coaches parked outside evaluators' offices to hear the evaluator-litigant oral exchanges and to offer tips to the litigants. Devices are available today that may be easily concealed and could be used to transmit in-office conversations. Additionally, bug-in-the-ear devices, used to speak surreptitiously to those wearing the devices, have been employed by behavioral psychologists since the late 1960s.

Perhaps this technology is not being utilized because litigants (and the attorneys who counsel them) are apprehensive. Awkward pauses between evaluator inquiries and litigant responses might tip off alert evaluators. If no significant stigma is attached to providing coaching services, litigants may be only minimally concerned about being identified as users of those services.

If the technologically enhanced coaching is deemed unacceptable ' as I hope is the case ' should un-enhanced coaching be viewed differently? No difference exists in the objective that underlies each process. Technologically enhanced coaching differs from un-enhanced coaching only with respect to efficiency.

Lying to Evaluators v. Lying to Judges

Perjury involves making a statement under oath that is: 1) false; 2) has been made with knowledge that it is false; and, 3) is material to the issues to be adjudicated. When testifying custody litigants describe themselves, their spouses, their children, or the family interactions and dynamics in ways that the litigants know to be false; when the intention of the litigants in knowingly offering the false statements is to deceive the court; and, when the offering of the false statements has been encouraged by mental health professionals who are functioning as consultants to attorneys, the mental health professionals are subverting justice.

If the mental health professionals are not actually suborning perjury, they are engaging in acts that are the functional equivalent of suborning perjury. Mental health professionals who encourage custody litigants knowingly to offer false information are offering this advice precisely because, acting as consultants to the litigants' attorneys, the mental health professionals have set “victory” (however that might be defined by the litigants and their attorneys) as the goal and have concluded that the probability of securing victory will be increased if the litigants offer false information instead of factually accurate information.

Lying under oath is perjury, although lying to an evaluator is not. Encouraging a litigant to lie under oath is suborning perjury, but encouraging a litigant to lie to an evaluator is not. I submit that some distinctions provide obfuscation rather than clarification and that the foregoing distinctions are among them. Litigants who lie to evaluators do so only because an effectively hoodwinked evaluator becomes a tool used in furtherance of the goal of deceiving a judge. The effectively misinformed evaluator (with the credibility that accompanies the designation “expert”) passes along through his/her testimony fallacious information and flawed opinions.

Encouraging litigants to lie to evaluators is the functional equivalent of suborning perjury. The purpose ' or function ' of the lie told to the evaluator is to deceive the court concerning a matter that is material to the issues being adjudicated. In order for lies told to evaluators to serve their intended function, they must be repeated during testimony. Consequently, an MHP who coaches a litigant to lie to an evaluator commits the functional equivalent of suborning perjury.

In tort cases, a defendant may be found liable for harm caused to a plaintiff, even if the immediate cause of harm lies in the acts of someone else, if it was an act by the defendant that set in motion a chain of events, the outcome of which was reasonably foreseeable. Encouraging a litigant to lie on a self-report inventory, such as the MMPI-2, sets in motion a chain of events that will predictably conclude with the recitation on the stand of the same lies that were offered earlier in the form of responses to test items. Analogizing to the conduct in a tort case, while assisting litigants to lie on tests may not directly constitute subornation of perjury, it sets in motion a process that leads litigants to commit perjury.

The Obligations of Mental Health Professionals

According to the opening sections of the psychologists' ethics code, General Principles, psychologists are obligated to “seek to safeguard the welfare and rights of those with whom they interact professionally and other affected persons [emphasis added] ' “; “are aware of their professional and scientific responsibilities to society and to the specific communities in which they work”; and, “seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology. In these activities psychologists do not steal, cheat, or engage in fraud, subterfuge, or intentional misrepresentation of fact.” Thus, psychologists are ethically bound to promote the truth, not to coach litigants to deceive evaluators and the court in order to reach their stated goal.

Concluding Comments

As mental health professionals contemplate the various services that they can legitimately offer to attorneys, they will have to decide whether or not providing direct assistance to litigants in disputes regarding issues of custodial placement and access is among the appropriate services. If, as I hypothesize will be the case, it is concluded that some direct services are appropriate, but that others are not, decisions will have to be made concerning where, how, and by whom the line should be drawn.

Though it is widely believed that custody litigants are at their best when they are in the offices of evaluators or appearing in court, attorneys and mental health professionals alike are well aware of the exceptions. There are litigants for whom the evaluative context generates a form of anxiety that interferes with their ability to be themselves and to respond in a reasonably articulate manner to questions. Mental health professionals who assist such litigants in dealing more effectively with their anxiety make it easier for evaluators to obtain accurate information and to witness more natural behavior when parent-child interactions are observed. Mental health professionals who help litigants to be themselves are not the problem. Unfortunately, mental health professionals who help litigants dissimulate more effectively are undermining a process the goal of which is to secure for children the best possible outcome under difficult circumstances.

David A. Martindale, a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology, served as the Reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of The Art and Science of Child Custody Evaluations. His practice is limited to consulting with attorneys, psychologists, and psychology licensing boards in the areas of child custody and professional ethics and standards. He can be contacted by e-mail at [email protected].