Analyzing Child Custody Reports

This is the fourth installment of a four-part series offering a model for attorneys to use when faced with the task of making sense out of a custody assessment. Trial preparation requires that a thorough analysis of the forensic work product be done to determine how to counsel the litigant about the next step in his or her case. A small body of literature has developed that suggests some of the areas most important to consider when analyzing a child custody report, including articles by Austin, Kirkpatrick, & Flens, (2011, Family Court Review , and by Gould, Kirkpatrick, Austin, & Martindale (2004, J Child Custody). More recently, the Custody Assessment Analysis System, or CAAS provided a comprehensive system for the pre-trial analysis of child custody evaluations (CCEs) by attorneys (Wittmann, 2013, MatLaw Corp.).

The inspection of an evaluator's report, focusing on the factors outlined below, produces a “red-flag” analysis; that is, a catalog of threats to reliability that compromise the usefulness of a particular evaluation. The ways in which an assessment may be sturdy and unlikely to yield under attack can also be determined through attention to the assets or strengths of a particular CCE. The CAAS model suggests four broad lenses for such an analysis, lenses that give structure to our four installments: Management of Professional Relationships, Data Adequacy, Technique Adequacy, and Reasoning Adequacy. The fourth of these dimensions (reasoning adequacy) is the focus of the installment herein.

Reasoning Adequacy

This dimension focuses on the following question: In articulating his/her reasoning, are there indications that the evaluator made use of the empirical literature of his/her discipline; is the reasoning internally consistent, logical, objective, and thorough; does it rest on an adequate foundation; and, is it marked by appropriate professional restraint? This lens focuses on the quality of the reasoning that is ultimately used to interpret the data gathered on a family and to form final conclusions. Without an adequate nexus between data and the conclusions drawn, a CCE report offers little that is useful to the court, and risks promoting judicial decisions or settlements that are misguided or damaging. There is a substantial list of ways that the CCE process can go awry in this area. A very partial list of such pitfalls follows.

Insufficient Basis

Are there inferences that appear to have a weak foundation in the data that were gathered? While there may be a bit of support for a conclusion, an inference may feel as though it goes too far and overextends or over-interprets the data accumulated during the assessment. The following conclusion, given the absence of any additional support, would call for this red flag: “Jennifer's sand-play, in which she gathers the girl figure close to the mother and leaves the adult male on the other side of the sandbox, reflects her longing to stay away from her dad and to be in the safety of her mother's custodial care.”

Subjective Parenting Judgments

Are there inferences that appear based in subjective parenting values held by the evaluator rather than on empirically established information? Custody evaluators are charged with the responsibility of interpreting data by employing the knowledge of their discipline. They take all steps that reasonably can be taken to prevent personally held values from influencing the data interpretation process. For example, a red flag might be raised about the following comment in a conclusions section: “This child plays violin every morning at 5 a.m. She then does swimming before school, followed by soccer at night. Children should not be scheduled this heavily and need more free time!” (In the absence of replicated research to support this claim, it is likely that such an inference is simply a reflection of the evaluator's values.)

Inattention to Rival Hypotheses

Are there contradictory data or rival hypotheses related to a conclusion that are not mentioned or explained in the report? A cautious approach to hypothesis testing should be apparent as final inferences are offered in the report. The careful exploration of alternative explanations is an indicator of a scientific approach to custody assessment, and its absence should raise a red flag. For example, an evaluator who concludes that a father's suspicious attitudes toward his wife suggest paranoia without fully exploring his assertion that that there are some real ways in which she is secretly harassing him (through false reports to his employer), is failing to consider all of the relevant possibilities.

Non-Psychological Inference

Does the inference involve a conclusion that falls outside of the evaluator's discipline? Occasionally, one will come across a CCE where an evaluator is willing to opine about matters that are not within the specialized knowledge base of his/her profession, stepping outside of the scope of the appointment order. For example, a red flag should be raised when the reader of a CCE report encounters the following in the conclusions section: “The father in this matter certainly has enough money to purchase a residence near his son and also meet his many financial obligations. It is time for this father to move out from his mother's residence.” (The commentary regarding finances might be appropriate in a report prepared by a CPA. It is inappropriate in a CCE report, prepared by a mental health professional.)

Credibility Judgments

Is the inference based on assumptions about reporter credibility or document accuracy? First, it is in the purview of the finder of fact, not custody evaluators, to assess the likelihood someone is telling the truth. Second, it has been established that mental health professionals are no more skilled at assessing credibility than are lay people ( e.g., Ekman & O'Sullivan, 1991). A red flag is warranted, for example, when each parent tells a blatantly different version of an alleged domestic violence incident and, without a clarifying piece of additional data, an evaluator simply chooses to endorse one of the two versions as most likely true, based on how it was presented.

Outdated Models Used

There are areas of the psychological research literature that have gone through profound changes over the last 10 to 15 years. Unfortunately, it has been our experience that a meaningful number of evaluators craft reports based on outdated models in such rapidly changing areas as child alienation, domestic violence, relocation, etc. If there is a psychological construct that appears to be central to the conclusions that an evaluator reaches, it is critical that the attorney analyzing the CCE explore the literature in that particular area (possibly with the assistance of a consultant) to confirm that empirically supported, updated models were utilized.

Implications for Practice

We often recommend that attorneys resist the normal impulse to jump to, and read, the conclusions section when a forensic custody report arrives. It is only by reading a report from the beginning that a reader can formulate opinions concerning the degree to which the ultimate inferences offered about a family flow logically from the data that were gathered. It is often what occurs between the ears of the evaluator that causes the process of offering a court guidance to go awry: An evaluator may have handled the relationships with the litigants well, gathered a broad and sufficient data set, and even used skilled forensic technique, yet may still interpret what s/he has gathered in a manner that defies logic or that is incongruent with the best literature our discipline has to offer. It is for this reason that the fourth dimension of analysis presented above is important and, at times, pivotal in the service of fully assessing the reliability of a forensic custody assessment.

Jeffrey P. Wittmann, PhD, is a licensed psychologist and trial consultant. See childcustodyforensics.com. David A. Martindale, PhD, ABPP, is the Reporter for the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation. See damartindale.com. Timothy M. Tippins is an Adjunct Professor at Albany Law School and serves on the faculty of the American Academy of Forensic Psychology. Reach him at [email protected]. All three authors are members of this newsletter's Board of Editors.

This is the fourth installment of a four-part series offering a model for attorneys to use when faced with the task of making sense out of a custody assessment. Trial preparation requires that a thorough analysis of the forensic work product be done to determine how to counsel the litigant about the next step in his or her case. A small body of literature has developed that suggests some of the areas most important to consider when analyzing a child custody report, including articles by Austin, Kirkpatrick, & Flens, (2011, Family Court Review , and by Gould, Kirkpatrick, Austin, & Martindale (2004, J Child Custody). More recently, the Custody Assessment Analysis System, or CAAS provided a comprehensive system for the pre-trial analysis of child custody evaluations (CCEs) by attorneys (Wittmann, 2013, MatLaw Corp.).

The inspection of an evaluator's report, focusing on the factors outlined below, produces a “red-flag” analysis; that is, a catalog of threats to reliability that compromise the usefulness of a particular evaluation. The ways in which an assessment may be sturdy and unlikely to yield under attack can also be determined through attention to the assets or strengths of a particular CCE. The CAAS model suggests four broad lenses for such an analysis, lenses that give structure to our four installments: Management of Professional Relationships, Data Adequacy, Technique Adequacy, and Reasoning Adequacy. The fourth of these dimensions (reasoning adequacy) is the focus of the installment herein.

Reasoning Adequacy

This dimension focuses on the following question: In articulating his/her reasoning, are there indications that the evaluator made use of the empirical literature of his/her discipline; is the reasoning internally consistent, logical, objective, and thorough; does it rest on an adequate foundation; and, is it marked by appropriate professional restraint? This lens focuses on the quality of the reasoning that is ultimately used to interpret the data gathered on a family and to form final conclusions. Without an adequate nexus between data and the conclusions drawn, a CCE report offers little that is useful to the court, and risks promoting judicial decisions or settlements that are misguided or damaging. There is a substantial list of ways that the CCE process can go awry in this area. A very partial list of such pitfalls follows.

Insufficient Basis

Are there inferences that appear to have a weak foundation in the data that were gathered? While there may be a bit of support for a conclusion, an inference may feel as though it goes too far and overextends or over-interprets the data accumulated during the assessment. The following conclusion, given the absence of any additional support, would call for this red flag: “Jennifer's sand-play, in which she gathers the girl figure close to the mother and leaves the adult male on the other side of the sandbox, reflects her longing to stay away from her dad and to be in the safety of her mother's custodial care.”

Subjective Parenting Judgments

Are there inferences that appear based in subjective parenting values held by the evaluator rather than on empirically established information? Custody evaluators are charged with the responsibility of interpreting data by employing the knowledge of their discipline. They take all steps that reasonably can be taken to prevent personally held values from influencing the data interpretation process. For example, a red flag might be raised about the following comment in a conclusions section: “This child plays violin every morning at 5 a.m. She then does swimming before school, followed by soccer at night. Children should not be scheduled this heavily and need more free time!” (In the absence of replicated research to support this claim, it is likely that such an inference is simply a reflection of the evaluator's values.)

Inattention to Rival Hypotheses

Are there contradictory data or rival hypotheses related to a conclusion that are not mentioned or explained in the report? A cautious approach to hypothesis testing should be apparent as final inferences are offered in the report. The careful exploration of alternative explanations is an indicator of a scientific approach to custody assessment, and its absence should raise a red flag. For example, an evaluator who concludes that a father's suspicious attitudes toward his wife suggest paranoia without fully exploring his assertion that that there are some real ways in which she is secretly harassing him (through false reports to his employer), is failing to consider all of the relevant possibilities.

Non-Psychological Inference

Does the inference involve a conclusion that falls outside of the evaluator's discipline? Occasionally, one will come across a CCE where an evaluator is willing to opine about matters that are not within the specialized knowledge base of his/her profession, stepping outside of the scope of the appointment order. For example, a red flag should be raised when the reader of a CCE report encounters the following in the conclusions section: “The father in this matter certainly has enough money to purchase a residence near his son and also meet his many financial obligations. It is time for this father to move out from his mother's residence.” (The commentary regarding finances might be appropriate in a report prepared by a CPA. It is inappropriate in a CCE report, prepared by a mental health professional.)

Credibility Judgments

Is the inference based on assumptions about reporter credibility or document accuracy? First, it is in the purview of the finder of fact, not custody evaluators, to assess the likelihood someone is telling the truth. Second, it has been established that mental health professionals are no more skilled at assessing credibility than are lay people ( e.g., Ekman & O'Sullivan, 1991). A red flag is warranted, for example, when each parent tells a blatantly different version of an alleged domestic violence incident and, without a clarifying piece of additional data, an evaluator simply chooses to endorse one of the two versions as most likely true, based on how it was presented.

Outdated Models Used

There are areas of the psychological research literature that have gone through profound changes over the last 10 to 15 years. Unfortunately, it has been our experience that a meaningful number of evaluators craft reports based on outdated models in such rapidly changing areas as child alienation, domestic violence, relocation, etc. If there is a psychological construct that appears to be central to the conclusions that an evaluator reaches, it is critical that the attorney analyzing the CCE explore the literature in that particular area (possibly with the assistance of a consultant) to confirm that empirically supported, updated models were utilized.

Implications for Practice

We often recommend that attorneys resist the normal impulse to jump to, and read, the conclusions section when a forensic custody report arrives. It is only by reading a report from the beginning that a reader can formulate opinions concerning the degree to which the ultimate inferences offered about a family flow logically from the data that were gathered. It is often what occurs between the ears of the evaluator that causes the process of offering a court guidance to go awry: An evaluator may have handled the relationships with the litigants well, gathered a broad and sufficient data set, and even used skilled forensic technique, yet may still interpret what s/he has gathered in a manner that defies logic or that is incongruent with the best literature our discipline has to offer. It is for this reason that the fourth dimension of analysis presented above is important and, at times, pivotal in the service of fully assessing the reliability of a forensic custody assessment.

Jeffrey P. Wittmann, PhD, is a licensed psychologist and trial consultant. See childcustodyforensics.com. David A. Martindale, PhD, ABPP, is the Reporter for the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation. See damartindale.com. Timothy M. Tippins is an Adjunct Professor at Albany Law School and serves on the faculty of the American Academy of Forensic Psychology. Reach him at [email protected]. All three authors are members of this newsletter's Board of Editors.