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Questioning the Mental Health Expert's Custody Report


http://www.fact.on.ca/Info/pas/turkat93.htm

AMERICAN JOURNAL OF FAMILY LAW, Vol 7, 175-179 (1993)

QUESTIONING THE MENTAL HEALTH EXPERT'S CUSTODY REPORT
IRA DANIEL TURKAT, PH.D., Venice, Florida

There are few activities in which a mental health professional can engage
that are more emotionally arousing, controversial, and potentially
damaging than performing a custody evaluation. The process is hampered by
two key facts. First, the scientific literature on custody determination
is woefully inadequate. Second, for every competent professional
evaluator, there may be many more incompetent ones.

For these reasons, it is important that attorneys be attuned to some of
the strengths and weaknesses inherent in mental health experts' custody
recommendations. This article will outline a variety of issues that one
might consider when questioning such an expert's report on custody
determination.

THE SCIENTIFIC LITERATURE

Perhaps the greatest impediment to the mental health expert's ability to
provide fair, competent, and appropriate custody recommendations is the
absence of a sound scientific body of research in this area. Currently,
there is no clear-cut body of scientific data about some of the basic
questions that underlie a custody recommendation. For example, there is an
absence of strong scientific evidence regarding precise parenting
characteristics that guarantee "good parenting." Similarly, we lack sound
research data regarding the effects on the future of a child who's been
placed with the "wrong" parent. Given the absence of well-established
scientific data on these issues, this leaves the mental health
professional with tremendous leeway in regard to how he or she decides to
go about doing a custody evaluation and in the interpretation of the data
collected for that investigation. As such, what one mental health expert
might see as critical, another similarly trained professional might see as
trivial. This leaves the court in a terrible quandary--one of which the
court, at times, may not even be aware.

The problem is well illustrated when a mental health expert who has an
excellent courtroom presentation style is actually incompetent. The court,
relying on someone believed to be an expert, actually receives poor advice
that the court does not have the expertise to evaluate. Unfortunately, as
noted above, many individuals engaged in the business of providing custody
recommendations probably have no business doing so. Hopefully, the reader
will find the information contained in this article useful in evaluating
such a mental health professional's report.

CREDENTIALS OF THE EXPERT

The psychiatrist (M.D.), psychologist (Ph.D.), and social worker (M.S.W.)
are the experts in our society regarding issues of mental health.
Unfortunately, this author is not aware of any scientific evidence proving
that an M.D. or Ph.D. or M.S.W. is any more competent in making a good
custody decision than a well-seasoned family court judge. However, since
these experts are often called upon to make custody recommendations, I
will present my biases regarding some of the "ideal" characteristics to be
found in the professional custody evaluator.
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The examiner should be able to document having accomplished a significant
number of custody decisions that reflect an unbiased record (e.g., the
evaluator does not always recommend that the mother get the children).
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Of the three professions noted in the above paragraph, the PhD. in
clinical psychology is typically the one distinguished by the most
training in basic science. Having a critical attitude about data of any
kind, and the tools by which to understand the scientific literature
pertinent to the case, the Ph.D. is probably the preferred professional.
However, this is not always the case. It is especially not the case when
the person doing the evaluation has no specific training in the area of
child development. Key to making a custody recommendation is the ability
to predict the future development of the child if placed with a particular
parent. As such, the professional with only one graduate level course in
child development would appear to have an insufficient background.
Instead, the ideal mental health professional for doing a custody
evaluation has significant training in the area of child development, with
particular understanding of the stages of development and how they
interact with the positive and negative attributes of each parent.

In addition to the qualifications above, the ideal evaluator has
significant training in psychopathology, with particular understanding of
the factors that promote the development of mental disorders. In
particular, the evaluator should have special expertise in the areas of
personality and personality disorders. The clinician who lacks top-notch
diagnostic skill is potentially short-changing the family and the child.

The ideal evaluator has many years of experience as a practicing
clinician. However, in addition, the examiner should be able to document
having accomplished a significant number of custody decisions that reflect
an unbiased record (e.g., the evaluator does not always recommend that the
mother get the children).

Finally, the mental health expert in this area must make it clear to the
court that his or her tests, interpretations, and recommendations are
potentially subject to error. The expert should not only make the court
aware of this, but should give some indication to the court regarding the
range and degree of possible errors involved.

RELATIONSHIP OF THE EXPERT TO THE PARTIES

We are all subject to biases, some of which we are not even aware. Even
the most impartial examiner can find himself or herself at times favoring
a particular parent in a custody dispute for reasons that have little to
do with the quality of the parenting offered. Given that this is
potentially the case with even the most "objective" of examiners, the
implications for the "hired gun" are obvious: the hired gun should not be
allowed to give a custody recommendation.

A second key issue in regard to the relationship between the expert and
the parties involved is what is known as the problem of "dual
relationships." This exists when the expert has a relationship with one or
more of the parents independent of the custody evaluation. For example,
assume the wife has been seeing a particular therapist for individual
psychotherapy and then offers his services to the court to provide a
custody evaluation. In this instance, the examiner has a clear history of
being supportive and helpful to, and most important, being on the side of
the wife. This unquestionably biases the therapist, whether or not he or
she wants to admit it. Such an individual should not be permitted to also
then evaluate the entire family for a custody determination.

Another example of the problem of dual relationships occurs when one of
the parties enters into court-ordered therapy with a particular therapist
and then afterward that therapist recommends that a full family evaluation
be done. While the recommendation itself might be appropriate, it is
inappropriate for the court-ordered therapist of one party to then perform
the family evaluation.

Trying to be therapist and evaluator at the same time increases the risk
of biased "professional" opinions.

PSYCHOLOGICAL TESTING

Psychologists are divided themselves about the importance and
appropriateness of psychological testing in making a custody
determination. The fact that there are thousands of tests available in the
psychological literature only compounds the problem.

The use of IQ tests is one clear-cut area of controversy. Some consider IQ
tests to be required in every case, whereas others consider IQ tests as
highly wasteful and inappropriate for a custody evaluation. To this
author, it would seem that if the intelligence of the children is an issue
in regard to which parent might be better able to foster that child's
attributes, then perhaps IQ tests are relevant. Some evaluators may be
viewed as adding them merely as a way to "pad the bill." The IQ test is
one of the most well-known and well-established assessment instruments
associated with the work of the clinical psychologist. Accordingly, the
reader should not be surprised that tests of less stature may be even more
controversial.

In recent years, several psychologists have attempted to develop
"objective" measures that are specific to custody evaluations. For
example, Bricklin has developed the Bricklin Perceptual Scales, and he
claims a 90 percent agreement rate between his scales and judges'
determinations. Similarly, the Ackerman-Schoendorf Scales for Parent
Evaluation of Custody (ASPECT) have recently been introduced and the
authors claim a 90 percent agreement with judges' custodial decisions as
well. The mental health expert who does not use these tests should be
queried as to why not. Those examiners who use these scales should be
questioned regarding the amount and quality of research on these scales,
what specific validity evidence exists in the research literature about
them, and what are the known sources of error in these scales, as they
relate to the case at hand.

TEST INTERPRETATION

While the choice of psychological test is controversial enough,
interpreting test data can be even more controversial. In my own practice,
both clinically and in training doctoral-level psychologists, I have often
seen two professionals look at the same data and come up with quite
different interpretations. Some psychologists may present computer
interpretations to imply a more "objective" presentation, but there are
problems here as well. First of all, the computer interpretation is
limited by what the human being puts into the computer interpretation
program. While the computer will be consistent in applying the rules it
has been given, it does not mean that the rules it has been given are
necessarily correct. Further, there are so many interpretive computer
programs available to psychologists these days, the amount of scientific
validity evidence for them varies tremendously. As such, the psychological
examiner should be examined on this particular issue.
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If the psychologist has a particular choice in mind as to who should
receive custody, he or she may examine the psychological test data
searching for evidence to confirm if as opposed to looking at evidence
that might disconfirm it.
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Additionally, the two most well-known and widely used major personality
inventories, the Minnesota Multiphasic Personality Inventory (MMPI) and
the Millon Multiaxial Clinical Inventory (MCMI), when given to the same
person, may yield two very different computer interpretations. The bias of
the examiner may come further into play when he or she examines the two
discrepant personality inventories on the same individual. Clearly, the
tendency to selectively pick out results becomes a problem.

Laypersons and psychologists alike are prone to search data looking for
instances that confirm one's ideas. In other words, if the psychologist
has a particular choice in mind as to who should receive custody, he or
she may examine the psychological test data searching for evidence to
confirm it as opposed to looking at evidence that might disconfirm it. He
or she may then selectively pull out those pieces of test data to present
to the court but inadvertently (or perhaps not inadvertently) leave out
those data points that might contradict the psychologist's
recommendations.

OBSERVATION OF PARENTING SKILL

Many custody evaluators do not specifically and systematically observe the
interaction between each parent and each child involved in the custody
evaluation. The psychologist who fails to make systematic observations of
how each child and each patent interact on various tasks may be doing the
family a disservice. In this case, the examiner restricts information to
that which is secondary to the basis of the custody question: namely, the
child-parent interactions that are most likely to produce the best
benefits for the child.
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The bottom line is that the psychologist who does not provide a thoroughly
convincing and compelling argument for the interpretation of his or her
interview, test data, and observations to provide a custody determination
is not doing the family or the court a useful service.
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An excellent way to assess parent-child interactions is to videotape each
parent with each child independently engaged in a variety of tasks. This
permits the psychologist to review those interactions when alone, and also
to invite other colleagues to view them and give opinions. This expands
the psychologist's ability to assess the case beyond interviews,
psychological tests, and records. The psychologist who does not do this
should be prepared to defend why it hasn't been done.

A key point in picking tasks for the parent-child interactions to be
observed is that they should not be biased toward either parent. For
example, if one parent knows how to sew and the other does not, it would
be unfair to instruct each parent to teach the child how to sew on
videotape. Tasks such as playing a game, solving a problem, or teaching
the child something new are useful indicators.

THE RATIONALE FOR CUSTODY DETERMINATION

It is not uncommon to read a psychological report of 10 to 15 pages
covering the interview, test data, and so on and then read the final
section in which recommendations are made that have no clear, logical
connection to all of the preceding information. The court should expect
the recommendation section to provide a logical, clear, and convincing
justification for why one parent should be named the primary residential
parent and the other should not

Psychological examiners, like other human beings, often make errors in
logic. For example, assume all of the data collected on the father and the
mother are relatively equal except that the mother has an elevation on her
depression subscale on the MMPI. To award primary residential custody to
the father purely because the mother has one test score suggesting an
elevation in depression represents an inadequate justification by itself.
In fact, even if one parent has some type of psychopathology, that does
not therefore mean that that parent is a poor parent. The bottom line is
that the psychologist who does not provide a thoroughly convincing and
compelling argument for the interpretation of his or her interview, test
data, and observations to provide a custody determination is not doing the
family or the court a useful service.

Another problem regarding the rationale for a custody recommendation is
that some evaluators misrepresent the value of their recommendations. For
example, one psychologist noted in his report to the judge that the method
he adopted for conducting the custody evaluation was based on a method
used by a former president of the American Psychological Association
(APA). This implies that the psychologist's report has merit.
Unfortunately, this is a misrepresentation of the report's value for at
least three reasons. First, the man who became APA president made a major
political achievement. However, there is no evidence that this APA
president's approach to custody determination won him the election.
Second, even if there is merit to this APA president's custody
determination procedure, there is no evidence that the particular
psychologist who used the method has the same competency as the APA
president in administering and interpreting this method. Finally, and most
importantly, there is no strong scientific evidence that this APA
president's procedure is the method of choice for performing a custody
evaluation. It is the scientific literature that should guide custody
evaluation procedures, not rhetoric nor the charisma of any one statesman.
The rationale underlying a custody recommendation has the most value when
scientific data is provided to support it.

CONCLUSION

Custody battles are heart-rending. Children's futures are at stake.
Scientific evidence to guide custody decisions is nowhere near the
necessary level for experts who need support in making such decisions.
Until the scientific literature on custody determination matures, the
report of the mental health "expert" should be viewed with a critical eye.
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Ira Daniel Turkat, PhD., is the chief psychologist at Venice Hospital and
is on the clinical faculty of the University of Florida College of
Medicine. He maintains a private practice in Venice, Florida.

F.A.C.T. Info Index: 
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