'Forensic Clairvoyance'

Whenever I review a report that takes this approach, it brings to mind an image of the evaluator sitting on the set of The Tonight Show with Johnny Carson, wearing the feathered and beaded “Carnac the Magnificent” turban, holding a sealed envelope to his head and leaning into the microphone to pronounce, “I sense there was domestic violence in this family.” I have elsewhere referred to this approach as a threat to the reliability of a custody assessment, involving a failure to cross-check allegations (Evaluating Evaluations, MatLaw , 2013) and here refer to it, less charitably, as “forensic clairvoyance” (FC). It involves an evaluator hearing the allegations from one side, then from the other, yet never offering an organized, sufficient opportunity for each party to give its version, to deny, admit, or place the allegation into a context that might change its meaning. The evaluator then draws a conclusion about the veracity of one version of the story.

FC represents a fundamental failure in method that violates the principles of objectivity, balance, and fairness. Drawing potentially life-changing conclusions about an allegation without hearing the target's version of the story represents a kind of intuitive hubris, leading to opinions based on a woefully insufficient empirical foundation. The primary risk is that the court will be misled by less-than-reliable information in the emanations from a supposedly learned expert.

Mental health professionals should know that the truth is often found in the comparison of narratives. Common sense and a wealth of research literature make clear that people can experience the very same event yet frame it in strikingly different ways in the retelling. These professionals should also know that context is everything with respect to understanding stressful family events. Evaluators who avoid using FC by giving parents a chance to respond to allegations can cite many examples of how the other party's version of an alleged event conveyed it in an entirely different light. I recall a father proclaiming his wife to be a “flaming maniac” who had suddenly and impulsively slapped their teenage son “out of the blue, for no reason.” Both the son's and the mother's stories revealed that this unfortunate yet isolated instance of family violence happened after the son had made an obscene gesture toward his mother, then had taken ketchup and poured it all over the new, white couch the mother had saved for several years to buy. This was a relevant contextual piece of data the father had chosen to leave out. Mental health professionals should know that people sometimes lie when it suits their purposes, and will work hard to spin events in a manner that presents them in a positive fashion.

Rationalizations and Their Flaws

I was taught to be non-judgmental in my clinical training: It has been my experience that many handle forensic interviews as if they are doing therapy, listening patiently and non-judgmentally to a person's narrative and avoiding probing questions or any hint of doubt or skepticism about an account. While this may be a good technique for creating trust on the part of the litigant-parent early in the process, challenging narratives that appear questionable, probing inconsistencies, and confronting litigants with data raising questions about what they have said are basic to forensic work. Therapists who also do custody assessments (especially those trained in more psychodynamic systems that emphasize noninterference in the patient's verbal productions) sometimes have difficulty switching hats to a forensic role involving a more active, assertive, and occasionally confrontational mode of interaction. As Greenberg and Shuman noted in their 1997 article, “Irreconcilable Conflict Between Therapeutic and Forensic Roles,” (Professional Psychology: Research and Practice, Vol. 28), the forensic role is not focused on advocacy for the parent-litigant's welfare and often requires a quasi-adversarial, critical stance toward the individuals being evaluated. This forensic mode is meant to ensure the reliability of the process by focusing less on the welfare or comfort of the parent-litigant than on the main task at hand: assisting the trier of fact via a thorough, objective, and fair process.

I don't want to make things worse for the families I see: Some evaluators contend that going through a list of allegations heard from the other parent can worsen the conflict or estrangement between the parents. While this is a possibility, it is important to recall that by the time most families arrive for their assessment, they have traded court petitions and other volleys; as a result, many allegations will not come as news. More important, however, is the reality that between the two options ' of not making people uncomfortable or angry with a list of allegations or choosing to do so in the service of clarifying issues relevant to a best-interests determination by the court ' the task of assisting the court with reliable information should take precedence.

The mother's story just rang more true. She was far more credible, so I didn't need to ask for father's version: While judgments about credibility are hard to avoid and can occasionally be useful in everyday life, in a professional forensic process, evaluators need to refrain from this normal human tendency. We have known for some time that mental health professionals (and humans of many other stripes) do no better than chance at determining the accuracy or truthfulness of narrative accounts. Indeed, Paul Eckman reported in 1991 that, in his study, only Secret Service Agents did better than chance at identifying liars (American Psychologist, Vol 46).

The Solution

Parent-litigants should always be offered an organized opportunity to respond to all allegations made against them by the other party that are relevant to a best-interests determination. This principle is set forth in the Model Standards of Practice for Child Custody Evaluation (2007, Section 5.5) and supported by the American Psychological Association's Specialty Guidelines for Forensic Psychology, where it is asserted that forensic opinions are to be based in reliable and valid methods (2013, Section 2.05). It is difficult to support the validity and reliability of listening to allegations relevant to best-interests and not choose to cross-check them by listening to the target's version of reality. Interestingly, the Association of Family and Conciliation Court (AFCC) Model Standards highlight the principles of balance and fairness with the notion that cross-checking of allegations is to be considered a basic aspect of child-custody assessments. It would be an extreme understatement to say it is unfair to allow one litigant to offer a litany of allegations that could lead to an infringement on the other litigant's liberty rights as a parent with no chance for them to refute, contextualize or respond to the assertions.

Implications for Legal Advocacy

Parent-litigants and their attorneys should discuss, in advance of an evaluation, which allegations they should be sure to describe from their point of view during a custody assessment, because of the implications for their case of not doing so. If not offered such an opportunity by the evaluator, they should ask for one.

Unfortunately, evaluators engaging in FC are in the driver's seat of the forensic process, and it is often not until post-evaluation recollections of that process are shared by parents that it becomes apparent they were never offered a chance to give their version of reality about pivotal family events. It is then left to the attorney, via a review of the report and the underlying forensic notes, to establish in cross-examination or affirmative testimony that an extremely unreliable method was used by the appointed evaluator ' that Carnac is indeed guiding the court.

Jeffrey P. Wittmann, Ph.D, a member of this newsletter's Board of Editors, is a licensed psychologist and trial consultant whose national practice concentrates on trial support for attorneys in custody and access matters and on forensic work-product reviews. He is author of Evaluating Evaluations: An Attorney's Handbook for Analyzing Child Custody Reports (MatLaw, 2013). Additional information can be found at www.childcustodyforensics.com.

Attorneys take a variety of approaches to client preparation in advance of a child custody evaluation, ranging from a “hands-off” stance (sending their parent litigant off to the assessment with no guidelines about how to handle the process) to hours of guidance ' what to be careful about, what materials to offer the evaluator, etc. When preparation is provided, a rational and understandable assumption often held by both litigants and the lawyers that represent them is that there will be a chance during the assessment to respond to all central allegations made by the other parent. Sadly, such trust in the fairness of the evaluation process is, in some cases, quite misplaced, and can lead to unfortunate outcomes.

Peer reviews of the custody evaluations of other mental health professionals have revealed a worrisome approach to assessment, represented by the following case example: The mother in a custody matter describes for the evaluator an alleged pattern of threats, intimidation and episodic violence on the part of her husband over the past three years. She states that some of the frightening behavior happened in front of the couple's child. The evaluator also hears from the husband that the mother had, on occasion, thrown things at him when she was angry, and that their child watched this. Neither party is asked about the allegations made by the other, and no information confirming violence is gleaned from the collaterals, yet the evaluator proceeds to conclude that the father appears to be a coercive-control batterer.

Special Powers

Whenever I review a report that takes this approach, it brings to mind an image of the evaluator sitting on the set of The Tonight Show with Johnny Carson, wearing the feathered and beaded “Carnac the Magnificent” turban, holding a sealed envelope to his head and leaning into the microphone to pronounce, “I sense there was domestic violence in this family.” I have elsewhere referred to this approach as a threat to the reliability of a custody assessment, involving a failure to cross-check allegations (Evaluating Evaluations, MatLaw , 2013) and here refer to it, less charitably, as “forensic clairvoyance” (FC). It involves an evaluator hearing the allegations from one side, then from the other, yet never offering an organized, sufficient opportunity for each party to give its version, to deny, admit, or place the allegation into a context that might change its meaning. The evaluator then draws a conclusion about the veracity of one version of the story.

FC represents a fundamental failure in method that violates the principles of objectivity, balance, and fairness. Drawing potentially life-changing conclusions about an allegation without hearing the target's version of the story represents a kind of intuitive hubris, leading to opinions based on a woefully insufficient empirical foundation. The primary risk is that the court will be misled by less-than-reliable information in the emanations from a supposedly learned expert.

Mental health professionals should know that the truth is often found in the comparison of narratives. Common sense and a wealth of research literature make clear that people can experience the very same event yet frame it in strikingly different ways in the retelling. These professionals should also know that context is everything with respect to understanding stressful family events. Evaluators who avoid using FC by giving parents a chance to respond to allegations can cite many examples of how the other party's version of an alleged event conveyed it in an entirely different light. I recall a father proclaiming his wife to be a “flaming maniac” who had suddenly and impulsively slapped their teenage son “out of the blue, for no reason.” Both the son's and the mother's stories revealed that this unfortunate yet isolated instance of family violence happened after the son had made an obscene gesture toward his mother, then had taken ketchup and poured it all over the new, white couch the mother had saved for several years to buy. This was a relevant contextual piece of data the father had chosen to leave out. Mental health professionals should know that people sometimes lie when it suits their purposes, and will work hard to spin events in a manner that presents them in a positive fashion.

Rationalizations and Their Flaws

I was taught to be non-judgmental in my clinical training: It has been my experience that many handle forensic interviews as if they are doing therapy, listening patiently and non-judgmentally to a person's narrative and avoiding probing questions or any hint of doubt or skepticism about an account. While this may be a good technique for creating trust on the part of the litigant-parent early in the process, challenging narratives that appear questionable, probing inconsistencies, and confronting litigants with data raising questions about what they have said are basic to forensic work. Therapists who also do custody assessments (especially those trained in more psychodynamic systems that emphasize noninterference in the patient's verbal productions) sometimes have difficulty switching hats to a forensic role involving a more active, assertive, and occasionally confrontational mode of interaction. As Greenberg and Shuman noted in their 1997 article, “Irreconcilable Conflict Between Therapeutic and Forensic Roles,” (Professional Psychology: Research and Practice, Vol. 28), the forensic role is not focused on advocacy for the parent-litigant's welfare and often requires a quasi-adversarial, critical stance toward the individuals being evaluated. This forensic mode is meant to ensure the reliability of the process by focusing less on the welfare or comfort of the parent-litigant than on the main task at hand: assisting the trier of fact via a thorough, objective, and fair process.

I don't want to make things worse for the families I see: Some evaluators contend that going through a list of allegations heard from the other parent can worsen the conflict or estrangement between the parents. While this is a possibility, it is important to recall that by the time most families arrive for their assessment, they have traded court petitions and other volleys; as a result, many allegations will not come as news. More important, however, is the reality that between the two options ' of not making people uncomfortable or angry with a list of allegations or choosing to do so in the service of clarifying issues relevant to a best-interests determination by the court ' the task of assisting the court with reliable information should take precedence.

The mother's story just rang more true. She was far more credible, so I didn't need to ask for father's version: While judgments about credibility are hard to avoid and can occasionally be useful in everyday life, in a professional forensic process, evaluators need to refrain from this normal human tendency. We have known for some time that mental health professionals (and humans of many other stripes) do no better than chance at determining the accuracy or truthfulness of narrative accounts. Indeed, Paul Eckman reported in 1991 that, in his study, only Secret Service Agents did better than chance at identifying liars (American Psychologist, Vol 46).

The Solution

Parent-litigants should always be offered an organized opportunity to respond to all allegations made against them by the other party that are relevant to a best-interests determination. This principle is set forth in the Model Standards of Practice for Child Custody Evaluation (2007, Section 5.5) and supported by the American Psychological Association's Specialty Guidelines for Forensic Psychology, where it is asserted that forensic opinions are to be based in reliable and valid methods (2013, Section 2.05). It is difficult to support the validity and reliability of listening to allegations relevant to best-interests and not choose to cross-check them by listening to the target's version of reality. Interestingly, the Association of Family and Conciliation Court (AFCC) Model Standards highlight the principles of balance and fairness with the notion that cross-checking of allegations is to be considered a basic aspect of child-custody assessments. It would be an extreme understatement to say it is unfair to allow one litigant to offer a litany of allegations that could lead to an infringement on the other litigant's liberty rights as a parent with no chance for them to refute, contextualize or respond to the assertions.

Implications for Legal Advocacy

Parent-litigants and their attorneys should discuss, in advance of an evaluation, which allegations they should be sure to describe from their point of view during a custody assessment, because of the implications for their case of not doing so. If not offered such an opportunity by the evaluator, they should ask for one.

Unfortunately, evaluators engaging in FC are in the driver's seat of the forensic process, and it is often not until post-evaluation recollections of that process are shared by parents that it becomes apparent they were never offered a chance to give their version of reality about pivotal family events. It is then left to the attorney, via a review of the report and the underlying forensic notes, to establish in cross-examination or affirmative testimony that an extremely unreliable method was used by the appointed evaluator ' that Carnac is indeed guiding the court.

Jeffrey P. Wittmann, Ph.D, a member of this newsletter's Board of Editors, is a licensed psychologist and trial consultant whose national practice concentrates on trial support for attorneys in custody and access matters and on forensic work-product reviews. He is author of Evaluating Evaluations: An Attorney's Handbook for Analyzing Child Custody Reports (MatLaw, 2013). Additional information can be found at www.childcustodyforensics.com.