Bias in Custody Evaluations

Analyzing for Bias

There is no blood test for evaluator bias. It happens between the ears of the mental health professional (MHP) and has to be inferred from the way the MHP related to the parties, the data he or she chose to gather, and how the data was ultimately interpreted. While it is a phenomenon that affects all mental health and legal professionals working with court-involved families, it is still a source of worrisome distortion in the evaluation process. The task for an attorney faced with an adverse forensic opinion by a biased evaluator is to be alert to the red flags or hints of its existence in the evaluator's process or work product so that a strategy can be developed for making it evident for the finder-of-fact.

The list of biases that follows represents a partial catalog of some of the predispositions that the general psychological literature suggests affect judgment; that were detected by this author during the process of reviewing scores of forensic work-products by others; and that have been outlined by previous commentators on this forensic issue (e.g., Martindale, D.A. (2005a). Confirmatory Bias and Confirmatory Distortion. J Child Custody, 2(1/2), 31-48; Martindale, D.A. (2010); Top Ten Biases Often Overlooked by Child Custody Evaluators. Assn of Family and Conciliation Courts eNews, 5:8; Tippins, T.M. (2007). Custody Evaluations — Part XXIV: Confirmatory Bias. NY Law Journal, 5/01/07, 3; Wittmann, J.P. (2013). Evaluating Evaluations. MatLaw Corp.).

Relational Biases

Group Membership Bias: This is the tendency to have one's judgments skewed by cultural, gender or racial stereotypes, as when an evaluator with unspoken mysogenistic views comes to be known as the person to go to if the desired outcome is father-custody.

Retention Bias: This is the tendency to have one's judgments of litigants skewed by a desire to please the source of the referral or by a disproportionately involved, positive or lucrative relationship with that source.

Affiliative Bias: This is the tendency to arrive at more positive judgments about litigants who have similar worldviews or beliefs, or whom one finds attractive or especially likable. One example would be the politically conservative MHP who unconsciously favors a father who is a right-wing Republican over a mother who is not.

Disaffiliative Bias: This is the tendency to arrive at more negative judgments about litigants one finds interpersonally distasteful, difficult, or unattractive — e.g., negative inferences about a father who is brash, blunt and socially annoying in ways that have no established connection with poor parenting.

Credibility Bias: This is the belief in one's power to discern deception and truth-telling, and the effect of this assumption on relative judgments about two parents, despite little evidence of the MHP's actual ability to accurately detect lying (Referred to by Martindale (2010) as “Jiminy Cricket Bias”).

Data-Gathering Biases

Data-Selection Bias: This is the tendency to favor the gathering of a class of information that is irrelevant or marginally related to parenting capacity, leading the evaluator to miss information that is much more probative about this issue. For instance, a psychiatrist might favor the highly detailed gathering of medical history, but fail to ask about attachment/separation issues. Or, an MHP might emphasize a detailed analysis of the sexual problems that caused the failure of a marriage rather than a detailed analysis of parenting skills.

Confirmatory Bias: This is the tendency to seek data that supports one's hypotheses about a family while neglecting to seek disconfirming information. An example of this bias would be a case where an evaluator suspects a father is depressed, asks collaterals if they have ever seen him depressed, yet administers no tests that might suggest otherwise, and fails to attend to information suggesting the depression issue is resolved.

Intervention Bias: This factor, suggested by Martindale (2010), probably flows from the reality that many evaluators started their careers emphasizing therapy. It involves the tendency to provide counseling guidance or mediation-like interventions in cases where the professional's role is defined as evaluative — e.g., when an evaluator counsels both parents to start interacting with their child in certain new ways, and tries to facilitate a reconciliation between father and son. Data about the family is analyzed through a “How can I help” lens rather than a lens focused on educating the court.

Instrument Bias: This is the tendency to routinely administer tests and other protocols one is familiar with despite a lack of data establishing the usefulness of those instruments for reliably assessing parenting-related questions, or despite data suggesting that such instruments may tend toward worrisome inaccuracy — e.g., when an evaluator regularly gives parents a projective instrument like the Thematic Apperception Test despite the absence of data indicating the instrument reliably measures parenting constructs.

Inferential Bias

Primacy/Recency Bias: This is the tendency to weight the earliest or latest information received during an assessment process most heavily, leading to a disproportionate influence by such sequence factors on the overall evaluation. This may be suggested when an evaluator receives and reviews a hefty stack of accusatory documents from the father against the mother — before seeing the mother — and his notes suggest he may have concluded early on that such accusations were true.

Internal-Factors Bias: This is the tendency to attribute undesirable parent behavior or psychological symptoms to internal factors in the parent while ignoring or under-weighting situational/environmental explanations. For example, if a mother presents as anxious and disorganized, the evaluator would speak about these symptoms as abiding, stable traits (despite the alternative possibility that the prospect of losing access to her children, and the evaluation setting itself, are time-limited stressors that will dissipate and that might more accurately explain her emotional state).

Pathology Bias: This is a tendency on the part of evaluators, due to their mental health backgrounds, to perceive, seek evidence for, or emphasize in their final work product any indication of psychological symptoms despite the infrequency of such symptoms or their frequent irrelevance to parenting or to the case at hand. An example would be an evaluator with a counseling-focused practice who writes pages in his report about the internal psychological conflicts of the parents, possible diagnoses, etc., despite an absence of mental health allegations in the case.

Shock Bias: This bias involves a tendency to give greater weight to information that is most easily recalled, and ease of recall is determined by such factors as the salience, severity or repetition of the information. It is referred to in the judgment literature as the “availability bias.” For instance, an evaluator might give the greatest weight to the information about a momentary lapse in judgment by a father 12 years ago that led to his child's brief coma and concussion, despite the fact that, for all of the subsequent years, the mother was drunk most evenings and the father acted competently. In this case, the coma-factor was more medically severe, so it was more “available” in the evaluator's memory as the case was processed, despite the severity of the consequences that could flow from chronic parental alcohol abuse.

Conceptual Bias: This is a tendency to weight assessment factors according to subjective theoretical preferences rather than empirically confirmed principles. To illustrate: A psychodynamically oriented evaluator heavily weights (in favor of the mother) a slight difference in attachment security between a child and her parents, while giving little weight to the fact that the father is far superior in his capacity to set firm, clear limits on the child's oppositional behavior, and despite a lack of empirical confirmation that weighting such a slight difference makes sense.

Parenting Values Bias: This is a tendency in an evaluator to view parenting behavior that is more consistent with her own as superior to behavior that is not, despite a lack of empirical confirmation that such preferences are associated with better child outcomes. An example would be an evaluator who works hard to minimize her own child's extracurricular commitments, and writes critically in her report about a mother whose straight-A student takes a violin lesson before school and plays on two sports teams.

Implications for Practice

Biases and judgment-shortcuts are so ubiquitous in situations requiring complex judgments that effective legal advocacy demands careful attention to any hints that an evaluator may have had his or her reasoning distorted in a manner that was unfair to a litigant or child. This usually requires a careful review of the forensic case-file (including notes, marginal scribbles by the evaluator, the language used to describe the parent-subjects of the assessment and the way a report is structured). In addition, the particular evaluator's prior statements in other cases and written works may help determine if there is reason to believe he or she has a historical leaning that manifests in biased treatment of the case at issue. With this information in hand, the family law practitioner becomes better equipped to amplify for the court any biases that may be negatively impacting a client's case and that hold the potential to mislead the finder-of-fact.

*****
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).

There are several foundational components of effective and reliable forensic work:

1. Fair-minded and even-handed interaction with litigants and their representatives;
2. Complete and balanced collection of relevant data;
3. Choice of a method of data collection that is known to produce valid information; and
4. A sufficiently logical and empirically supported interpretation of what has been learned about a family.

However, evaluator bias can interfere with these noble goals and lead to the court being misled. “Bias,” in the broadest sense, refers to an emotional or cognitive inclination that interferes with an unprejudiced consideration of the information that has been gathered about a family. Bias on the part of an evaluator can introduce distortion in any of the foundational components listed above, increasing the risk that the conclusions that are guiding the court may actually be less than reliable.

Bias manifests in many forms. An evaluator may unconsciously favor mothers, a prejudice that quickly becomes evident when she shows disdain for some of the father's assertions without reason. Another evaluator may set himself/herself up for a preference for the father's position in a case simply by interviewing the father first — and repeatedly — in advance of ever seeing the mother. Still another evaluator may enter an assessment with firmly held preconceptions about what is emotionally healthy and unhealthy for children (e.g., the family bed is bad; young children should be with their mothers; etc.) despite the fact that the empirical research in his or her discipline fails to support such perspectives.

These assumptions and cognitive sets, however formed, fashion a lens through which information that is gathered on a family will be analyzed and interpreted. They create a very real potential for error at the stage where the court is being given an evaluator's “bottom line” about a particular parent's functional capacities and skills or a certain child's emotional and developmental needs.

Analyzing for Bias

There is no blood test for evaluator bias. It happens between the ears of the mental health professional (MHP) and has to be inferred from the way the MHP related to the parties, the data he or she chose to gather, and how the data was ultimately interpreted. While it is a phenomenon that affects all mental health and legal professionals working with court-involved families, it is still a source of worrisome distortion in the evaluation process. The task for an attorney faced with an adverse forensic opinion by a biased evaluator is to be alert to the red flags or hints of its existence in the evaluator's process or work product so that a strategy can be developed for making it evident for the finder-of-fact.

The list of biases that follows represents a partial catalog of some of the predispositions that the general psychological literature suggests affect judgment; that were detected by this author during the process of reviewing scores of forensic work-products by others; and that have been outlined by previous commentators on this forensic issue (e.g., Martindale, D.A. (2005a). Confirmatory Bias and Confirmatory Distortion. J Child Custody, 2(1/2), 31-48; Martindale, D.A. (2010); Top Ten Biases Often Overlooked by Child Custody Evaluators. Assn of Family and Conciliation Courts eNews, 5:8; Tippins, T.M. (2007). Custody Evaluations — Part XXIV: Confirmatory Bias. NY Law Journal, 5/01/07, 3; Wittmann, J.P. (2013). Evaluating Evaluations. MatLaw Corp.).

Relational Biases

Group Membership Bias: This is the tendency to have one's judgments skewed by cultural, gender or racial stereotypes, as when an evaluator with unspoken mysogenistic views comes to be known as the person to go to if the desired outcome is father-custody.

Retention Bias: This is the tendency to have one's judgments of litigants skewed by a desire to please the source of the referral or by a disproportionately involved, positive or lucrative relationship with that source.

Affiliative Bias: This is the tendency to arrive at more positive judgments about litigants who have similar worldviews or beliefs, or whom one finds attractive or especially likable. One example would be the politically conservative MHP who unconsciously favors a father who is a right-wing Republican over a mother who is not.

Disaffiliative Bias: This is the tendency to arrive at more negative judgments about litigants one finds interpersonally distasteful, difficult, or unattractive — e.g., negative inferences about a father who is brash, blunt and socially annoying in ways that have no established connection with poor parenting.

Credibility Bias: This is the belief in one's power to discern deception and truth-telling, and the effect of this assumption on relative judgments about two parents, despite little evidence of the MHP's actual ability to accurately detect lying (Referred to by Martindale (2010) as “Jiminy Cricket Bias”).

Data-Gathering Biases

Data-Selection Bias: This is the tendency to favor the gathering of a class of information that is irrelevant or marginally related to parenting capacity, leading the evaluator to miss information that is much more probative about this issue. For instance, a psychiatrist might favor the highly detailed gathering of medical history, but fail to ask about attachment/separation issues. Or, an MHP might emphasize a detailed analysis of the sexual problems that caused the failure of a marriage rather than a detailed analysis of parenting skills.

Confirmatory Bias: This is the tendency to seek data that supports one's hypotheses about a family while neglecting to seek disconfirming information. An example of this bias would be a case where an evaluator suspects a father is depressed, asks collaterals if they have ever seen him depressed, yet administers no tests that might suggest otherwise, and fails to attend to information suggesting the depression issue is resolved.

Intervention Bias: This factor, suggested by Martindale (2010), probably flows from the reality that many evaluators started their careers emphasizing therapy. It involves the tendency to provide counseling guidance or mediation-like interventions in cases where the professional's role is defined as evaluative — e.g., when an evaluator counsels both parents to start interacting with their child in certain new ways, and tries to facilitate a reconciliation between father and son. Data about the family is analyzed through a “How can I help” lens rather than a lens focused on educating the court.

Instrument Bias: This is the tendency to routinely administer tests and other protocols one is familiar with despite a lack of data establishing the usefulness of those instruments for reliably assessing parenting-related questions, or despite data suggesting that such instruments may tend toward worrisome inaccuracy — e.g., when an evaluator regularly gives parents a projective instrument like the Thematic Apperception Test despite the absence of data indicating the instrument reliably measures parenting constructs.

Inferential Bias

Primacy/Recency Bias: This is the tendency to weight the earliest or latest information received during an assessment process most heavily, leading to a disproportionate influence by such sequence factors on the overall evaluation. This may be suggested when an evaluator receives and reviews a hefty stack of accusatory documents from the father against the mother — before seeing the mother — and his notes suggest he may have concluded early on that such accusations were true.

Internal-Factors Bias: This is the tendency to attribute undesirable parent behavior or psychological symptoms to internal factors in the parent while ignoring or under-weighting situational/environmental explanations. For example, if a mother presents as anxious and disorganized, the evaluator would speak about these symptoms as abiding, stable traits (despite the alternative possibility that the prospect of losing access to her children, and the evaluation setting itself, are time-limited stressors that will dissipate and that might more accurately explain her emotional state).

Pathology Bias: This is a tendency on the part of evaluators, due to their mental health backgrounds, to perceive, seek evidence for, or emphasize in their final work product any indication of psychological symptoms despite the infrequency of such symptoms or their frequent irrelevance to parenting or to the case at hand. An example would be an evaluator with a counseling-focused practice who writes pages in his report about the internal psychological conflicts of the parents, possible diagnoses, etc., despite an absence of mental health allegations in the case.

Shock Bias: This bias involves a tendency to give greater weight to information that is most easily recalled, and ease of recall is determined by such factors as the salience, severity or repetition of the information. It is referred to in the judgment literature as the “availability bias.” For instance, an evaluator might give the greatest weight to the information about a momentary lapse in judgment by a father 12 years ago that led to his child's brief coma and concussion, despite the fact that, for all of the subsequent years, the mother was drunk most evenings and the father acted competently. In this case, the coma-factor was more medically severe, so it was more “available” in the evaluator's memory as the case was processed, despite the severity of the consequences that could flow from chronic parental alcohol abuse.

Conceptual Bias: This is a tendency to weight assessment factors according to subjective theoretical preferences rather than empirically confirmed principles. To illustrate: A psychodynamically oriented evaluator heavily weights (in favor of the mother) a slight difference in attachment security between a child and her parents, while giving little weight to the fact that the father is far superior in his capacity to set firm, clear limits on the child's oppositional behavior, and despite a lack of empirical confirmation that weighting such a slight difference makes sense.

Parenting Values Bias: This is a tendency in an evaluator to view parenting behavior that is more consistent with her own as superior to behavior that is not, despite a lack of empirical confirmation that such preferences are associated with better child outcomes. An example would be an evaluator who works hard to minimize her own child's extracurricular commitments, and writes critically in her report about a mother whose straight-A student takes a violin lesson before school and plays on two sports teams.

Implications for Practice

Biases and judgment-shortcuts are so ubiquitous in situations requiring complex judgments that effective legal advocacy demands careful attention to any hints that an evaluator may have had his or her reasoning distorted in a manner that was unfair to a litigant or child. This usually requires a careful review of the forensic case-file (including notes, marginal scribbles by the evaluator, the language used to describe the parent-subjects of the assessment and the way a report is structured). In addition, the particular evaluator's prior statements in other cases and written works may help determine if there is reason to believe he or she has a historical leaning that manifests in biased treatment of the case at issue. With this information in hand, the family law practitioner becomes better equipped to amplify for the court any biases that may be negatively impacting a client's case and that hold the potential to mislead the finder-of-fact.

*****
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).