Spotting Unreliable Child Interviews

It is not uncommon for forensic child custody evaluations (CCEs) to include detailed interviews with children that focus, to some extent, on alleged events in a family that may be relevant to a best interests determination. Evaluators may explore with the subject children allegations related to such difficult issues as family violence, alcohol abuse, alienation, neglect etc. The reasons are straightforward: Children are often witnesses to toxic family events that one or both parent-litigants refuse to admit happened ' or they can help disconfirm an allegation. Given the goal of assisting the court, evaluators also seek to gather information on such issues as the child's adjustment to the divorce, perceptions of each parent's emotional responsiveness, disciplinary style, etc.

Unfortunately, not all child interviews are created equal, and a biased or unskilled evaluator can shape or distort a child's recollection of family history by violating basic principles for maximizing reliability in child reports (Principles meant to help navigate the challenges of suggestibility, the vagaries of child memory, developmental limitations in language, etc.). If an attorney for a child or for a litigant can gain access to the underlying forensic file for inspection, an analysis of the session notes can offer reassurance that distorting dynamics were not present or suggest that the narrative offered by the child should be viewed as unreliable for court purposes.

Listed below are the ways of interacting with children in an assessment that can decrease the reliability of the child's responses. The principles for effective, heuristic interviewing along with the errors listed below are derived from the research literature that informs effective forensic assessment (e.g., Lamb, M. & Poole, D. (1998). Investigative interviews of children: A guide for helping professionals. Washington, DC: APA; Kuehnle, Greenberg & Gottlieb (2004). Incorporating the principles of scientifically based child interviews into family law cases. J Child Custody, 1(1), 97- 114).

Forensic Interview Errors

There are many potential errors an interviewer might make; the six listed below are the most common.

1. Failure to Clarify Purpose: Children enter assessments with their own set of assumptions about why they are being interviewed. When these assumptions are erroneous, it can interfere with their openness or with their trust in the evaluator. The forensic notes should indicate that some attempt was made to describe the purpose of the evaluation clearly in language the child can understand.
2. Failure to Establish Rapport or Set the Stage: It is important to lay the groundwork for trust with the child because the evaluator is, in most circumstances, a stranger. When an evaluator appears to have rushed into inquires about negative, threatening, or painful issues, it is a sign that the child may not have had the best mental set for a reliable response (and that the evaluator is not well-trained). During rapport-building, there is also a chance to empower the child to feel comfortable providing detailed, elaborated stories about recalled events. The use of non-threatening questions about interests, friends, etc. can reduce anxiety and make the evaluator seem less threatening. In addition, asking a child to tell “everything” s/he can remember about an emotionally neutral family or school event offers a chance to encourage detailed narratives.
3. Failure to Use Developmentally Appropriate Language: Well-trained evaluators know how to select language that fits a child's developmental stage. Failing to do so means that a child may be unable to respond or, even worse, may offer answers to questions that s/he is actually unable to understand (leading to false or misleading assertions). Attorneys should inspect forensic records to make sure that, for example, the questions presented to a five-year-old did not require the higher levels of abstraction that only appear much later (approximately age 11).
4. Failure to Confirm Understanding of Truth/Lies: When the interview focus will be, to some extent, on discrete alleged family events (e.g., a parent's drunkenness rather than general perceptions, feelings, etc) it is best for the evaluator to establish a child's ability to recall past events, understand the difference between the truth and a lie, and appreciate the moral obligation to tell the truth. Attorneys should look for evidence that the evaluator used early inquires focused on these issues (such as having the child respond to a list of things that are obviously true and others that are obviously false and label them appropriately).
5. Failure to Establish Ground Rules: Children can be prone to feel that they must answer all questions, cannot say “I don't know,” or cannot say they don't understand an inquiry because the evaluator will likely be seen as an authority figure who is in a position of power and control. When inspecting the forensic notes, attorneys should check to see if the evaluator clarified these issues with the child before commencing the core assessment. This includes making it clear that the child can refuse to answer a question, can express confusion about a question, or can express ignorance about issues explored. For example, an evaluator might praise a child who, after being asked what color the evaluator's house is, says, “I don't know” (“That's right. ' You couldn't know the color of my house ' that's the right answer because you just don't know”) and make clear that such a proclamation is desired during the session when the child genuinely does not know the answer to a question.
6. Failure to Avoid Suggestive Questioning: The goal of effective forensic interviewing is the gathering of a narrative that is not contaminated by an approach to questioning that the research suggests leads to distorted reports by children. When inspecting forensic notes from sessions with a child, attorneys should make sure that none of the following inquiry-styles characterized what happened between an evaluator and a child: 1) Leading questions that suggest a particular answer (“Then your mom pulled your hair, didn't she?”); 2) repetitious questions (The evaluator, convinced that a certain answer is the correct one, keeps asking about the event in the hope of eventually getting the “right” response; 3) excessively specific, or “yes-no” inquires before using more open-ended questioning (e.g., “Did your dad hit your mom on Easter?” rather than “Your family just celebrated Easter. Tell me all about the dinner at your house from beginning to end.”). The reliability of the child-narrative reported in a custody evaluation is buttressed to the extent that the evaluator worked hard to inquire about each salient family event with an open-ended, free-narrative style before progressing to more focused, specific questioning.

Implications for Practice

Attorneys representing parent-litigants can provide more effective legal advocacy by carefully inspecting the forensic notes that formed the foundation for what is reported in the final custody report. It should be noted that several professional organizations have promulgated practice guidelines relevant to interviewing children that can be easily accessed online (e.g., American Psychological Association, 2012; American Professional Society on the Abuse of Children, 2012; American Academy of Child and Adolescent Psychiatry, 1997).

In cases where a child's comments are used by the evaluator to support an argument working against one's client, an inspection of the forensic notes can assist an attorney in crafting an argument that the child's productions were contaminated by the evaluator's assessment style. When a child's comments are working in favor of the version of family history proffered by one's client, such an inspection can help insure that the foundation of the evaluator's reasoning is not vulnerable to attack due to unsound forensic technique.

If one is representing a child in a custody matter, careful analysis of how an evaluator explored sensitive matters relevant to best interests can allow for a more accurate assessment of how, in the service of child advocacy, to respond in court to a custody evaluation that may affect the trajectory of a child's life. The quality of the interview technique used in an assessment has very real relevance when what a child said to a forensic expert becomes central to the evaluator's ultimate reasoning about psychological best interests.

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, NY. He conducts peer work-product reviews and is the author of Evaluating Evaluations: An Attorney's Handbook for Analyzing Child Custody Reports (MatLaw Corp., 2013). He can be reached at [email protected].

It is not uncommon for forensic child custody evaluations (CCEs) to include detailed interviews with children that focus, to some extent, on alleged events in a family that may be relevant to a best interests determination. Evaluators may explore with the subject children allegations related to such difficult issues as family violence, alcohol abuse, alienation, neglect etc. The reasons are straightforward: Children are often witnesses to toxic family events that one or both parent-litigants refuse to admit happened ' or they can help disconfirm an allegation. Given the goal of assisting the court, evaluators also seek to gather information on such issues as the child's adjustment to the divorce, perceptions of each parent's emotional responsiveness, disciplinary style, etc.

Unfortunately, not all child interviews are created equal, and a biased or unskilled evaluator can shape or distort a child's recollection of family history by violating basic principles for maximizing reliability in child reports (Principles meant to help navigate the challenges of suggestibility, the vagaries of child memory, developmental limitations in language, etc.). If an attorney for a child or for a litigant can gain access to the underlying forensic file for inspection, an analysis of the session notes can offer reassurance that distorting dynamics were not present or suggest that the narrative offered by the child should be viewed as unreliable for court purposes.

Listed below are the ways of interacting with children in an assessment that can decrease the reliability of the child's responses. The principles for effective, heuristic interviewing along with the errors listed below are derived from the research literature that informs effective forensic assessment (e.g., Lamb, M. & Poole, D. (1998). Investigative interviews of children: A guide for helping professionals. Washington, DC: APA; Kuehnle, Greenberg & Gottlieb (2004). Incorporating the principles of scientifically based child interviews into family law cases. J Child Custody, 1(1), 97- 114).

Forensic Interview Errors

There are many potential errors an interviewer might make; the six listed below are the most common.

1. Failure to Clarify Purpose: Children enter assessments with their own set of assumptions about why they are being interviewed. When these assumptions are erroneous, it can interfere with their openness or with their trust in the evaluator. The forensic notes should indicate that some attempt was made to describe the purpose of the evaluation clearly in language the child can understand.
2. Failure to Establish Rapport or Set the Stage: It is important to lay the groundwork for trust with the child because the evaluator is, in most circumstances, a stranger. When an evaluator appears to have rushed into inquires about negative, threatening, or painful issues, it is a sign that the child may not have had the best mental set for a reliable response (and that the evaluator is not well-trained). During rapport-building, there is also a chance to empower the child to feel comfortable providing detailed, elaborated stories about recalled events. The use of non-threatening questions about interests, friends, etc. can reduce anxiety and make the evaluator seem less threatening. In addition, asking a child to tell “everything” s/he can remember about an emotionally neutral family or school event offers a chance to encourage detailed narratives.
3. Failure to Use Developmentally Appropriate Language: Well-trained evaluators know how to select language that fits a child's developmental stage. Failing to do so means that a child may be unable to respond or, even worse, may offer answers to questions that s/he is actually unable to understand (leading to false or misleading assertions). Attorneys should inspect forensic records to make sure that, for example, the questions presented to a five-year-old did not require the higher levels of abstraction that only appear much later (approximately age 11).
4. Failure to Confirm Understanding of Truth/Lies: When the interview focus will be, to some extent, on discrete alleged family events (e.g., a parent's drunkenness rather than general perceptions, feelings, etc) it is best for the evaluator to establish a child's ability to recall past events, understand the difference between the truth and a lie, and appreciate the moral obligation to tell the truth. Attorneys should look for evidence that the evaluator used early inquires focused on these issues (such as having the child respond to a list of things that are obviously true and others that are obviously false and label them appropriately).
5. Failure to Establish Ground Rules: Children can be prone to feel that they must answer all questions, cannot say “I don't know,” or cannot say they don't understand an inquiry because the evaluator will likely be seen as an authority figure who is in a position of power and control. When inspecting the forensic notes, attorneys should check to see if the evaluator clarified these issues with the child before commencing the core assessment. This includes making it clear that the child can refuse to answer a question, can express confusion about a question, or can express ignorance about issues explored. For example, an evaluator might praise a child who, after being asked what color the evaluator's house is, says, “I don't know” (“That's right. ' You couldn't know the color of my house ' that's the right answer because you just don't know”) and make clear that such a proclamation is desired during the session when the child genuinely does not know the answer to a question.
6. Failure to Avoid Suggestive Questioning: The goal of effective forensic interviewing is the gathering of a narrative that is not contaminated by an approach to questioning that the research suggests leads to distorted reports by children. When inspecting forensic notes from sessions with a child, attorneys should make sure that none of the following inquiry-styles characterized what happened between an evaluator and a child: 1) Leading questions that suggest a particular answer (“Then your mom pulled your hair, didn't she?”); 2) repetitious questions (The evaluator, convinced that a certain answer is the correct one, keeps asking about the event in the hope of eventually getting the “right” response; 3) excessively specific, or “yes-no” inquires before using more open-ended questioning (e.g., “Did your dad hit your mom on Easter?” rather than “Your family just celebrated Easter. Tell me all about the dinner at your house from beginning to end.”). The reliability of the child-narrative reported in a custody evaluation is buttressed to the extent that the evaluator worked hard to inquire about each salient family event with an open-ended, free-narrative style before progressing to more focused, specific questioning.

Implications for Practice

Attorneys representing parent-litigants can provide more effective legal advocacy by carefully inspecting the forensic notes that formed the foundation for what is reported in the final custody report. It should be noted that several professional organizations have promulgated practice guidelines relevant to interviewing children that can be easily accessed online (e.g., American Psychological Association, 2012; American Professional Society on the Abuse of Children, 2012; American Academy of Child and Adolescent Psychiatry, 1997).

In cases where a child's comments are used by the evaluator to support an argument working against one's client, an inspection of the forensic notes can assist an attorney in crafting an argument that the child's productions were contaminated by the evaluator's assessment style. When a child's comments are working in favor of the version of family history proffered by one's client, such an inspection can help insure that the foundation of the evaluator's reasoning is not vulnerable to attack due to unsound forensic technique.

If one is representing a child in a custody matter, careful analysis of how an evaluator explored sensitive matters relevant to best interests can allow for a more accurate assessment of how, in the service of child advocacy, to respond in court to a custody evaluation that may affect the trajectory of a child's life. The quality of the interview technique used in an assessment has very real relevance when what a child said to a forensic expert becomes central to the evaluator's ultimate reasoning about psychological best interests.

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, NY. He conducts peer work-product reviews and is the author of Evaluating Evaluations: An Attorney's Handbook for Analyzing Child Custody Reports (MatLaw Corp., 2013). He can be reached at [email protected].