This article proposes a four-level model of clinical inferences to analyze the psychological evaluation process in custody matters. At each level the authors summarize the status of the relevant psychological literature and conclude that, as clinicians respond to the ultimate issues (e.g., who should be the custodial parent) the empirical foundation for such conclusions is tenuous or non-existent. A jurisprudence argument is also made that such opinions should be routinely excluded from the fact-finding process. Given the significant potential for specific custody recommendations to limit personal liberties and the trajectory of a child's life, the paucity of relevant research available in this area, and profound evidentiary issues, such recommendations should be viewed as ethically inappropriate. A model for what clinicians can ethically say to courts is proposed.
In writing the lead article, we hoped to produce a deeper interdisciplinary discourse that will lead to a higher level of service for the families and children we serve. The thoughtful responses that follow the lead article encourage us to believe that such discourse and the consequential elevation of practice standards is, indeed, a realistic hope.Kelly and Johnston (this issue) state that they are in essential agreement with our analysis, but express concern that we may have understated the breadth and depth of the empirical research base in the area of divorce psychology. They further express the concern that our call for a moratorium on recommendations may create even greater risk for families.With respect to their first point, we thank them for augmenting what we knew was only a partial review of the available empirical research base. Our shorter description of the literature is intended to be illustrative. We repeatedly observe in the lead article that the empirical literature available to custody evaluators, though insufficient as a foundation for ultimate expressions of best interest, is quite substantial and can provide a firm anchor for many less abstract, yet still helpful family-related conclusions. Kelly and Johnston have performed an important service by delineating the scope of this empirical database. This delineation provides additional support for our point that, even at Level II, the mental health discipline is able to provide a great deal of objective and verified information that can assist courts in making decisions relative to the needs of children.Their position is that our call for a moratorium on recommendations may create even more risks for divorcing families. This seems to rest upon an implicit assumption that the current state of affairs, wherein evaluators choose specific custody plans in the absence of evidence that they can reliably do so, thus altering children's life courses and truncating fundamental parenting rights, poses little or no risk to those families. That assumption is not necessarily valid. In fact, whether children and families are better off with or without explicit recommendations is an empirically unanswered question and, therefore, we would posit that such an assumption is at least questionable.For example, for decades the mental health profession used the simple metric of determining the "primary psychological parent" according to the Goldstein, Freud, and Solnit model (1979); yet we essentially do not know, on average, how those children fared in response to recommendations that placed them in largely sole-parent custodial arrangements. Best interest recommendations were widely admitted during those decades on theoretical premises that many scholars now would view as questionable. It is entirely possible, because these child custody decisions were based on overly simplistic notions of attachment psychology, that children would have been at a lesser risk had such testimony Author Note: We wish to thank FCR for publishing our four-level model for analyzing the ...
In July, 2011, the Family Court Review published an article by Ackerman and Pritzl that purported to provide new data reflecting the current practices of custody evaluators. Regrettably, as a result of flawed methodology and a deficient legal analysis, the data reported, the interpretations offered, and the conclusions provided can only mislead courts, attorneys, and custody evaluators as to the present state of custody evaluation practices. This response will detail the flaws in the Ackerman and Pritzl article and explain why their conclusions should not be accepted either within the custody evaluation community or within the legal system. Key Points for the Family Court Community: Assessment procedures and instruments used by psychologists in family law matters must be selected based upon their demonstrated reliability and validity. As it pertains to assessment procedures and instruments, survey data that reflect frequency of use are a distraction, since the selection by test users of several of the often‐used instruments is attributable to impressive marketing, not to psychometric attributes.
Bias can taint the forensic work product to a far greater degree than many lawyers and judges, as relatively unsophisticated consumers of psychological expertise, are aware. Daniel Pickar's article, "Countertransference Bias in the Child Custody Evaluator" (this issue) describes the deep roots and potential impact on evaluations that can emerge from countertransference thoughts and feelings forming in the shadows of the evaluator's psyche. This article examines countertransference bias primarily from the perspective of the cross-examining attorney charged with the obligation of revealing possible sources of invalidity underlying the expert's conclusions. It addresses also the legitimate concerns raised
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