Custody Litigation: A Psychologist Discusses a Broken System

The vast majority of mental health professionals who, today, are performing child custody evaluations, began their work in the mental health field as treatment providers. One should not presume that practitioners who have demonstrated their ability to conduct effective interviews in treatment settings will be able to conduct effective interviews in forensic settings.

Different objectives demand the employment of different data-gathering techniques, and the objectives of forensic interviewers must be differentiated from the objectives of clinical interviewers. Unfortunately, it is likely that, if asked to do so, many child custody evaluators would be unable to specify the ways in which the objectives differ, and would be unable to articulate the manner in which forensic interviewing differs from interviewing conducted in a treatment context.

Forensic interviewers must gather information that bears upon specific issues in dispute. For that reason, forensic interviewers must be skilled at breaking (and braking) conversational momentum. They must learn how to re-direct litigants ' politely but firmly ' when they discuss issues that are not remotely related to the issues to be adjudicated by the court.

Example: In a litigated custody matter, an evaluator conducts three meetings with the mother and two with the father. A review of the evaluator's contemporaneously-taken notes reveals that on 10 different occasions during the five meetings, the sex life of the soon-to-be-divorced spouses was discussed. Discussions of the couple's sex life are, at best, a distraction. At worst, they represent an attempt on the part of the evaluator to identify the litigant who is more at fault for the failure of the marital relationship. This is not an issue before the court.

Forensic interviewers often must ask litigants how the accuracy of assertions made by them might be confirmed (or disconfirmed). A significant body of published literature documents quite well the inability of mental health professionals to function as human lie detectors. Though our inability to discern duplicity has been established in repeated research studies, some mental health professionals express baseless confidence that they can distinguish between the forthright and the deceitful. This confidence is manifested when evaluators elect to seek corroboration of assertions made by one litigant, while accepting at face value assertions made by the other litigant. Such unbalanced treatment of two litigants is not a rare occurrence.

Preparing Records in Anticipation of Scrutiny

The national organizations representing those mental health professions whose members offer forensic services have failed dramatically to establish strong, unambiguously worded, enforceable standards relating to the creation, maintenance, and production of records of forensic mental health services. Legislative bodies and professional regulatory agencies have failed, in a manner best described as unconscionable, to establish appropriate record-keeping standards for licensees.

Guidance is plentiful, but disciplinary action cannot be taken against forensic mental health professionals who ignore guidance provided by the organizations of which they are members. For example, Guideline 10.06 of the American Psychological Association's Specialty Guidelines for Forensic Psychology encourages psychologists to create records “with enough detail and quality to allow for reasonable judicial scrutiny and adequate discovery by all parties.” Similarly, Model Standard 3.2(a) of the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation states, in pertinent part, that “evaluators shall presume that their records are created, maintained, and preserved in anticipation of their review by others who are legally entitled to possess them and/or to review them.”

From the perspective of one who is regularly retained to review files that have been created by others, it does not seem unreasonable to expect that loose note pages will contain certain minimal identifying information and will include page numbers (among other things). In correspondence with a Guardian ad litem, a custody evaluator with an opposing perspective has stated that if litigants, their attorneys, and retained consultants “are asking for page numbering etc., they need to understand that these are labor intensive tasks that will add additional costs.” In another matter, when asked to identify the source of a document on which he relied, a testifying evaluator stated: “I got it from the zoo. What difference does it make?” A forensic mental health practitioner should recognize that the source of a document does make a difference and, for that reason, note should be made of the source. Noteworthy for its absence was any expression of outrage (or even dismay) by the presiding judges in these cases. In my opinion, the absence of outrage is outrageous.

Structured Assessment: The Good, the Bad, and the Unreliable

In ethical standard 9.02(b) psychologists are admonished to “use assessment instruments whose validity and reliability have been established for use with members of the population tested.” Perhaps what was needed was an admonition to “use ONLY assessment instruments whose validity and reliability have been established.” With regularity, psychologists and other mental health professionals use assessment instruments and procedures (such as drawings and doll play) the deficient reliability of which has been clearly and repeatedly documented.

Test Data Interpretation: It Is Not About You

As a matter of fact, it is not about anyone. It is about groups of people. Some of the widely accepted tests (such as the MMPI-2) are computer scored, and many users order computer-generated interpretations of the test data. Computer-generated narrative reports are written in a manner that leads most readers to believe that they address the psychological characteristics of specific test-takers. They do not. The report that reads as though it is about John Smith, the test-taker, is not about John Smith. It is about other people whose responses to test items were similar to those of John Smith.

The problems associated with reliance on the statements appearing in such reports, goes beyond the fact that, notwithstanding the frequent appearance in John Smith's report of the personal pronoun “he,” (suggesting that it is a about him , when it is not), the statements appearing in John Smith's report are, in essence, instructions to the evaluator who has administered the test . When a statement appearing in a narrative report informs the reader that people whose test responses are similar to those of Mr. Smith “tend to be rigid,” the task of the evaluator is to gather information that will shed light on this issue. It is important to look beyond the question of whether or not there is credible evidence of rigidity and to examine the contexts in which the rigidity (if it exists at all) has been manifested. If, for example, Mr. Smith is rigid in his work environment but does not display this characteristic in his interactions with his children, then it is a personality characteristic of unlikely significance to the judge who must construct a parenting plan for the Smith children. The evaluator who places in his/her report the statement that Mr. Smith tends to be rigid is, quite simply, not assisting the trier of fact.

Forensic Report Writing

Reports prepared in treatment contexts are written: 1) for one's own use; 2) for use by colleagues; or 3) for use by individuals providing oversight (supervisors; insurance claims examiners, in situations in which reimbursement for the cost of treatment must be authorized). In these contexts, the inclusion of hypotheses (even those for which there is only marginal support) is likely to be helpful and quite unlikely to create harm. For example, reference to provisional diagnoses is quite acceptable.

Reports prepared by custody evaluators are written for the purpose of furnishing information that is: 1) of a type gathered by professionals with expertise in a mental health field; and 2) pertinent to specific issues in dispute. Care must be taken to exclude data (and commentary based on those data) that might misinform a legal decision-maker. When offering descriptions of litigants, forensic report writers should limit their descriptions to those that are relevant to parenting capacity and for which there is an adequate foundation. AFCC Model Standard 12.3 requires that there be “an adequate foundation for the information provided and/or opinions offered.” In some states, specific statutorily identified factors, taken collectively, define the best interests standard. In such jurisdictions the designated factors should be addressed.

Where's the Basis?

When the Daubert case was returned to the U.S. Circuit Court of Appeals for the Ninth Circuit, the scientific evidence proffered by the plaintiffs was, again, rejected. Daubert v. Merrell Dow Pharmaceuticals, Inc. (on remand), 43 F.3d. 1311 (9th Cir. 1995). Judge Alex Kozinski, writing for the court, declared that a court's task “is to analyze not what the experts say, but what basis they have for saying it” (at 1316). With disturbing frequency, the bases for the opinions expressed by evaluators are not articulated either in their reports or in the course of direct testimony. A first-year law student would be likely to assume that, in the absence of articulated bases for expressed opinions, judges would not simply presume that sound bases must, nevertheless, exist. The law student would learn that real-world family law is not like textbook law.

Evidence of unwarranted presumptions that the work of court-appointed evaluators does not require scrutiny is seen in the often-referenced decision in Ochs v. Ochs, 193 Misc.2d 502, 2002 N.Y. Slip Op. 22691 (N.Y.Sup.Ct., Westchester Co., 2002). In Ochs, the court declared that “reviewing [an evaluator's] raw data and notes ' does not ultimately reach the central issue of the validity of the psychologist's conclusions ' [and, may turn] the litigation into a ' critique of the psychologist's methodology, rather than a test of the conclusions themselves” (at 509). It is not possible to put any evaluator's conclusions to a test without examining the methods that were employed in arriving at those conclusions.

Remarkably, the Ochs court expressed concern that evaluators “who know that their data and notes are likely to be scrutinized may, understandably, be less willing to commit to paper the impressions they form in the course of their interviews '” (at 509). Evaluators wishing to protect their work from scrutiny are evaluators whom the courts should wish to jettison. They undermine due process.

It is possible (though not likely) that the enlightened perspective expressed by Judge Kozinski is attributable to geography. The Ninth Circuit includes the State of Washington, where, On July 1, 1940, the (first) Tacoma Narrows Bridge opened to much acclaim. It was the third-longest suspension bridge in the world, and quite attractive. It became less attractive on Nov. 7, 1940, when it collapsed into Puget Sound. The bridge could not withstand the strong crosswinds that were common in the area. Perhaps Judge Kozinski is more aware than are New York judges of the error that is made when we examine a finished product, judge it by those elements that can immediately be seen, and fail to examine the manner in which it was constructed.

Spoliation Without Castigation

In an astonishing opinion handed down in 2012 (O'Loughlin v. Sweetland, 98 A.D. 3rd 983 [2d Dept. 2012]), a New York appellate court ruled that a custody litigant's contention that “missing audiotapes denied her the ability to effectively cross-examine the forensic evaluator” was not supported by the record. Notably missing from the record were the deleted audiotapes. How do jurists (even very wise jurists) ascertain what impact destroyed evidence might have had if had been available? Timothy M. Tippins, a member of the Board of Editors of this newsletter, directing forceful commentary to a noticeably unreceptive audience, described the O'Laughlin decision as “Dazzling,” among other things (Vanity of the Bonfires: Spoliation of Evidence, NYLJ , 11/7/13). In reading Tippins' article, it becomes quite clear, even to the less astute, that by “dazzling,” Tippins did not mean “bright,” “brilliant,” or “shining;” He meant “staggering.”

To someone not trained in law (and, I suspect, even to some who are), it is difficult to understand why the intentional or negligent destruction, loss, material alteration or obstruction of evidence that is relevant to litigation is tolerated. In Prudential Ins. Co. of America Sales Practices Litigation (N.J.D. 1997) 169 F.R.D. 598, the court declared that “[t]he obligation to preserve documents that are potentially discoverable materials is an affirmative one ' ” (at 615). In Stevenson v. Union Pacific Railroad Company (8th Cir. 2004), the U.S. Court of Appeals for the Eighth Circuit ruled that where there is knowledge of litigation, bad faith intent can be inferred.

What kind of na'vet' leads a court to conclude that anything other than bad faith is involved when, as occurred in O'Loughlin v. Sweetland, tape recordings are selectively deleted? Though evaluators are conceptualized as disinterested , many evaluators are quite interested in transforming the cross-examination process into an ineffective search for pertinent (but not supportive) information. Why is it difficult for judges to contemplate the possibility that an evaluator who has failed (either deliberately or negligently) to consider evidence not supportive of his/her recommendations might destroy the troublesome evidence?

Justice Antonin Scalia, delivering the opinion of the United States Supreme Court in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), wrote: “Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” Though the context was a criminal prosecution, and the allusion to confrontation related to the requirements of the Sixth Amendment, reference is made in the decision to the guarantee “that reliability be assessed in a particular manner: by testing in the crucible of cross-examination ' ” (at 319). When one considers the impact on an entire family (and, quite often, extended family) of a court-imposed parenting plan, it is likely that custody litigants wonder why cross-examination is not viewed as being as important in litigated custody matters as it is in criminal matters.

In the context of litigation regarding custody of and access to children, the sought-for “truth” is the parenting plan that will best serve the interests of the children. For that reason, we are likely to view Wigmore's description of cross-examination as “the greatest legal engine ever invented for the discovery of truth” (as cited in Lilly v. Virginia, 527 U.S. 116 [1999]) as inapplicable to the cross-examination of custody evaluators (whether court-appointed or retained). Though cross-examination of evaluators will not necessarily lead to the discovery of an ideal parenting plan, it will quite often lead to the discovery of deficiencies in evaluators' education, training, skills, methods, data analyses, and reasoning. It is through cross-examination that the reliability of the foundation upon which an evaluator's opinions have been constructed can be tested.

Closing Statement

I have furnished a brief and incomplete list of flaws in what most knowledgeable participants acknowledge is a broken system. Making the requisite repairs will require effort on the part of both legal and mental health professionals. Though I will refrain from offering advice to the legal community, I offer the observation that as long as judges accept evaluative reports and testimony, the methodological foundation for which is left unexplored, our courts will continue to receive the kinds of reports about which there have been so many complaints. With only mild discomfort, I herewith scold my colleagues in the mental health professions. Put simply, we must abandon our resistance to scrutiny and our efforts to insulate ourselves through the strengthening of immunity provisions. Though his words were spoken in a significantly different context, Eldridge Cleaver was correct when he observed that “[y]ou either have to be part of the solution, or you're going to be part of the problem.” We have been part of the problem. It is time for us to become part of the solution.

David Martindale, a member of this newsletter's Board of Editors and certified in forensic psychology by the American Board of Professional Psychology, is the Reporter for the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation. He offers forensic psychological consulting services to psychologists, attorneys, and licensing boards. Additional information may be found at www.damartindale.com.

The first of many model standards appearing in the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation addresses “Custody Evaluation as a Specialization.” (Model Standard 1.1.) Evaluators are reminded that specialized knowledge is required, even where the evaluators are not “conducting evaluations that raise special issues. ' ” In Model Standard 1.2, 18 “ [a]reas of expected training for all child custody evaluators” are enumerated. It is expected that evaluators will develop forensic interviewing skills, will understand (and apply in their work) basic principles of reliability and validity, and will master forensic report-writing.

Few active participants or regular observers of the custody litigation process in the United States would challenge my assertion that the system is broken. Many are responsible for the breaks. This article focuses on evaluators and judges who accept work that, by an objective and reasonable standard, is unacceptable.

Forensic Interviews

The vast majority of mental health professionals who, today, are performing child custody evaluations, began their work in the mental health field as treatment providers. One should not presume that practitioners who have demonstrated their ability to conduct effective interviews in treatment settings will be able to conduct effective interviews in forensic settings.

Different objectives demand the employment of different data-gathering techniques, and the objectives of forensic interviewers must be differentiated from the objectives of clinical interviewers. Unfortunately, it is likely that, if asked to do so, many child custody evaluators would be unable to specify the ways in which the objectives differ, and would be unable to articulate the manner in which forensic interviewing differs from interviewing conducted in a treatment context.

Forensic interviewers must gather information that bears upon specific issues in dispute. For that reason, forensic interviewers must be skilled at breaking (and braking) conversational momentum. They must learn how to re-direct litigants ' politely but firmly ' when they discuss issues that are not remotely related to the issues to be adjudicated by the court.

Example: In a litigated custody matter, an evaluator conducts three meetings with the mother and two with the father. A review of the evaluator's contemporaneously-taken notes reveals that on 10 different occasions during the five meetings, the sex life of the soon-to-be-divorced spouses was discussed. Discussions of the couple's sex life are, at best, a distraction. At worst, they represent an attempt on the part of the evaluator to identify the litigant who is more at fault for the failure of the marital relationship. This is not an issue before the court.

Forensic interviewers often must ask litigants how the accuracy of assertions made by them might be confirmed (or disconfirmed). A significant body of published literature documents quite well the inability of mental health professionals to function as human lie detectors. Though our inability to discern duplicity has been established in repeated research studies, some mental health professionals express baseless confidence that they can distinguish between the forthright and the deceitful. This confidence is manifested when evaluators elect to seek corroboration of assertions made by one litigant, while accepting at face value assertions made by the other litigant. Such unbalanced treatment of two litigants is not a rare occurrence.

Preparing Records in Anticipation of Scrutiny

The national organizations representing those mental health professions whose members offer forensic services have failed dramatically to establish strong, unambiguously worded, enforceable standards relating to the creation, maintenance, and production of records of forensic mental health services. Legislative bodies and professional regulatory agencies have failed, in a manner best described as unconscionable, to establish appropriate record-keeping standards for licensees.

Guidance is plentiful, but disciplinary action cannot be taken against forensic mental health professionals who ignore guidance provided by the organizations of which they are members. For example, Guideline 10.06 of the American Psychological Association's Specialty Guidelines for Forensic Psychology encourages psychologists to create records “with enough detail and quality to allow for reasonable judicial scrutiny and adequate discovery by all parties.” Similarly, Model Standard 3.2(a) of the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation states, in pertinent part, that “evaluators shall presume that their records are created, maintained, and preserved in anticipation of their review by others who are legally entitled to possess them and/or to review them.”

From the perspective of one who is regularly retained to review files that have been created by others, it does not seem unreasonable to expect that loose note pages will contain certain minimal identifying information and will include page numbers (among other things). In correspondence with a Guardian ad litem, a custody evaluator with an opposing perspective has stated that if litigants, their attorneys, and retained consultants “are asking for page numbering etc., they need to understand that these are labor intensive tasks that will add additional costs.” In another matter, when asked to identify the source of a document on which he relied, a testifying evaluator stated: “I got it from the zoo. What difference does it make?” A forensic mental health practitioner should recognize that the source of a document does make a difference and, for that reason, note should be made of the source. Noteworthy for its absence was any expression of outrage (or even dismay) by the presiding judges in these cases. In my opinion, the absence of outrage is outrageous.

Structured Assessment: The Good, the Bad, and the Unreliable

In ethical standard 9.02(b) psychologists are admonished to “use assessment instruments whose validity and reliability have been established for use with members of the population tested.” Perhaps what was needed was an admonition to “use ONLY assessment instruments whose validity and reliability have been established.” With regularity, psychologists and other mental health professionals use assessment instruments and procedures (such as drawings and doll play) the deficient reliability of which has been clearly and repeatedly documented.

Test Data Interpretation: It Is Not About You

As a matter of fact, it is not about anyone. It is about groups of people. Some of the widely accepted tests (such as the MMPI-2) are computer scored, and many users order computer-generated interpretations of the test data. Computer-generated narrative reports are written in a manner that leads most readers to believe that they address the psychological characteristics of specific test-takers. They do not. The report that reads as though it is about John Smith, the test-taker, is not about John Smith. It is about other people whose responses to test items were similar to those of John Smith.

The problems associated with reliance on the statements appearing in such reports, goes beyond the fact that, notwithstanding the frequent appearance in John Smith's report of the personal pronoun “he,” (suggesting that it is a about him , when it is not), the statements appearing in John Smith's report are, in essence, instructions to the evaluator who has administered the test . When a statement appearing in a narrative report informs the reader that people whose test responses are similar to those of Mr. Smith “tend to be rigid,” the task of the evaluator is to gather information that will shed light on this issue. It is important to look beyond the question of whether or not there is credible evidence of rigidity and to examine the contexts in which the rigidity (if it exists at all) has been manifested. If, for example, Mr. Smith is rigid in his work environment but does not display this characteristic in his interactions with his children, then it is a personality characteristic of unlikely significance to the judge who must construct a parenting plan for the Smith children. The evaluator who places in his/her report the statement that Mr. Smith tends to be rigid is, quite simply, not assisting the trier of fact.

Forensic Report Writing

Reports prepared in treatment contexts are written: 1) for one's own use; 2) for use by colleagues; or 3) for use by individuals providing oversight (supervisors; insurance claims examiners, in situations in which reimbursement for the cost of treatment must be authorized). In these contexts, the inclusion of hypotheses (even those for which there is only marginal support) is likely to be helpful and quite unlikely to create harm. For example, reference to provisional diagnoses is quite acceptable.

Reports prepared by custody evaluators are written for the purpose of furnishing information that is: 1) of a type gathered by professionals with expertise in a mental health field; and 2) pertinent to specific issues in dispute. Care must be taken to exclude data (and commentary based on those data) that might misinform a legal decision-maker. When offering descriptions of litigants, forensic report writers should limit their descriptions to those that are relevant to parenting capacity and for which there is an adequate foundation. AFCC Model Standard 12.3 requires that there be “an adequate foundation for the information provided and/or opinions offered.” In some states, specific statutorily identified factors, taken collectively, define the best interests standard. In such jurisdictions the designated factors should be addressed.

Where's the Basis?

When the Daubert case was returned to the U.S. Circuit Court of Appeals for the Ninth Circuit, the scientific evidence proffered by the plaintiffs was, again, rejected. Daubert v. Merrell Dow Pharmaceuticals, Inc. (on remand), 43 F.3d. 1311 (9th Cir. 1995). Judge Alex Kozinski, writing for the court, declared that a court's task “is to analyze not what the experts say, but what basis they have for saying it” (at 1316). With disturbing frequency, the bases for the opinions expressed by evaluators are not articulated either in their reports or in the course of direct testimony. A first-year law student would be likely to assume that, in the absence of articulated bases for expressed opinions, judges would not simply presume that sound bases must, nevertheless, exist. The law student would learn that real-world family law is not like textbook law.

Evidence of unwarranted presumptions that the work of court-appointed evaluators does not require scrutiny is seen in the often-referenced decision in Ochs v. Ochs , 193 Misc.2d 502, 2002 N.Y. Slip Op. 22691 (N.Y.Sup.Ct., Westchester Co., 2002). In Ochs, the court declared that “reviewing [an evaluator's] raw data and notes ' does not ultimately reach the central issue of the validity of the psychologist's conclusions ' [and, may turn] the litigation into a ' critique of the psychologist's methodology, rather than a test of the conclusions themselves” (at 509). It is not possible to put any evaluator's conclusions to a test without examining the methods that were employed in arriving at those conclusions.

Remarkably, the Ochs court expressed concern that evaluators “who know that their data and notes are likely to be scrutinized may, understandably, be less willing to commit to paper the impressions they form in the course of their interviews '” (at 509). Evaluators wishing to protect their work from scrutiny are evaluators whom the courts should wish to jettison. They undermine due process.

It is possible (though not likely) that the enlightened perspective expressed by Judge Kozinski is attributable to geography. The Ninth Circuit includes the State of Washington, where, On July 1, 1940, the (first) Tacoma Narrows Bridge opened to much acclaim. It was the third-longest suspension bridge in the world, and quite attractive. It became less attractive on Nov. 7, 1940, when it collapsed into Puget Sound. The bridge could not withstand the strong crosswinds that were common in the area. Perhaps Judge Kozinski is more aware than are New York judges of the error that is made when we examine a finished product, judge it by those elements that can immediately be seen, and fail to examine the manner in which it was constructed.

Spoliation Without Castigation

In an astonishing opinion handed down in 2012 ( O'Loughlin v. Sweetland , 98 A.D. 3rd 983 [2d Dept. 2012]), a New York appellate court ruled that a custody litigant's contention that “missing audiotapes denied her the ability to effectively cross-examine the forensic evaluator” was not supported by the record. Notably missing from the record were the deleted audiotapes. How do jurists (even very wise jurists) ascertain what impact destroyed evidence might have had if had been available? Timothy M. Tippins, a member of the Board of Editors of this newsletter, directing forceful commentary to a noticeably unreceptive audience, described the O'Laughlin decision as “Dazzling,” among other things (Vanity of the Bonfires: Spoliation of Evidence, NYLJ , 11/7/13). In reading Tippins' article, it becomes quite clear, even to the less astute, that by “dazzling,” Tippins did not mean “bright,” “brilliant,” or “shining;” He meant “staggering.”

To someone not trained in law (and, I suspect, even to some who are), it is difficult to understand why the intentional or negligent destruction, loss, material alteration or obstruction of evidence that is relevant to litigation is tolerated. In Prudential Ins. Co. of America Sales Practices Litigation (N.J.D. 1997) 169 F.R.D. 598, the court declared that “[t]he obligation to preserve documents that are potentially discoverable materials is an affirmative one ' ” (at 615). In Stevenson v. Union Pacific Railroad Company (8th Cir. 2004), the U.S. Court of Appeals for the Eighth Circuit ruled that where there is knowledge of litigation, bad faith intent can be inferred.

What kind of na'vet' leads a court to conclude that anything other than bad faith is involved when, as occurred in O'Loughlin v. Sweetland, tape recordings are selectively deleted? Though evaluators are conceptualized as disinterested , many evaluators are quite interested in transforming the cross-examination process into an ineffective search for pertinent (but not supportive) information. Why is it difficult for judges to contemplate the possibility that an evaluator who has failed (either deliberately or negligently) to consider evidence not supportive of his/her recommendations might destroy the troublesome evidence?

Justice Antonin Scalia, delivering the opinion of the United States Supreme Court in Melendez-Diaz v. Massachusetts , 557 U.S. 305 (2009), wrote: “Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” Though the context was a criminal prosecution, and the allusion to confrontation related to the requirements of the Sixth Amendment, reference is made in the decision to the guarantee “that reliability be assessed in a particular manner: by testing in the crucible of cross-examination ' ” (at 319). When one considers the impact on an entire family (and, quite often, extended family) of a court-imposed parenting plan, it is likely that custody litigants wonder why cross-examination is not viewed as being as important in litigated custody matters as it is in criminal matters.

In the context of litigation regarding custody of and access to children, the sought-for “truth” is the parenting plan that will best serve the interests of the children. For that reason, we are likely to view Wigmore's description of cross-examination as “the greatest legal engine ever invented for the discovery of truth” (as cited in Lilly v. Virginia , 527 U.S. 116 [1999]) as inapplicable to the cross-examination of custody evaluators (whether court-appointed or retained). Though cross-examination of evaluators will not necessarily lead to the discovery of an ideal parenting plan, it will quite often lead to the discovery of deficiencies in evaluators' education, training, skills, methods, data analyses, and reasoning. It is through cross-examination that the reliability of the foundation upon which an evaluator's opinions have been constructed can be tested.

Closing Statement

I have furnished a brief and incomplete list of flaws in what most knowledgeable participants acknowledge is a broken system. Making the requisite repairs will require effort on the part of both legal and mental health professionals. Though I will refrain from offering advice to the legal community, I offer the observation that as long as judges accept evaluative reports and testimony, the methodological foundation for which is left unexplored, our courts will continue to receive the kinds of reports about which there have been so many complaints. With only mild discomfort, I herewith scold my colleagues in the mental health professions. Put simply, we must abandon our resistance to scrutiny and our efforts to insulate ourselves through the strengthening of immunity provisions. Though his words were spoken in a significantly different context, Eldridge Cleaver was correct when he observed that “[y]ou either have to be part of the solution, or you're going to be part of the problem.” We have been part of the problem. It is time for us to become part of the solution.

David Martindale, a member of this newsletter's Board of Editors and certified in forensic psychology by the American Board of Professional Psychology, is the Reporter for the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation. He offers forensic psychological consulting services to psychologists, attorneys, and licensing boards. Additional information may be found at www.damartindale.com.