Anatomy of a Child Custody Evaluation
Florida Family Law Rules of Procedure 12.360 and 12.363 provide for evaluation of parents and children by a psychologist. A psychological evaluation is only useful if it is done properly and if those who rely upon it actually understand it. One problem encountered by family law attorneys and judges is that when they receive a psychological report, they do not always understand it. Some reports are filled with more jargon and theory than practical and relevant information. Further confusion can occur because there is no standardized format for conducting custody evaluations. Different psychologists use different procedures, different psychological tests, and different writing styles.
However, the lack of a standardized format for conducting custody evaluations does not mean that psychologists can simply do whatever they want in the evaluation. Although there is no one right way to conduct a custody evaluation, there are wrong ways. The key is to understand enough about the various standards and procedures that govern custody evaluations in order to identify the right from the wrong and mount an effective cross examination if necessary. The goal of this article is to provide such an understanding.
Issues Related to Evaluator
• General Considerations
The Specialty Guidelines for Forensic Psychologists require that psychologists who conduct forensic evaluations (of which custody evaluations are included) have specialized knowledge, skill, experience, and education in the areas necessary to perform the evaluation.1 Even more specifically, the Guidelines for Child Custody Evaluations in Divorce Proceedings and the Model Standards of Practice for Child Custody Evaluations indicate that custody evaluators should have specialized knowledge and training in performing psychological assessments of children, adults, and families as well as education, experience, and/or supervision in child and family development, child and family psychopathology, and the impact of divorce on children.2 These documents also indicate that custody evaluators should be aware of the legal definitions, standards, and laws that apply to custody cases in their state or jurisdiction. Finally, in cases in which there are more complex issues such as domestic violence or sexual abuse allegations, custody evaluators are required to have specialized training, experience, and/or supervision in these specific areas.3
Ethical guidelines also require custody evaluators to conduct evaluations from an objective and impartial perspective.4 Unfounded personal biases toward or against certain classes of individuals, such as fathers or homosexuals, have no place in a custody evaluation. In addition, it is almost always inappropriate for a psychologist who conducts a custody evaluation to have any prior or future involvement with any of the parties or children involved in the case.5 Such involvements would include personal (friendships) or professional relationships (the evaluator is or was a therapist to someone in the family).
The first step in challenging the results of a psychological evaluation by questioning the psychologist’s qualifications is to obtain a copy of the psychologist’s curriculum vitae. From the vitae, the psychologist’s training and experience working with children and families and evaluating children and families for custody purposes can be determined. In addition, in deposition the psychologist can be asked to elaborate on his or her training and experience in these critical areas.
The psychologist also can be asked about specific knowledge of or reliance upon any publications in the areas of child custody, time sharing, or any other topics relevant to the case. If the psychologist is able to provide references, copies of these documents should be obtained because they may be helpful in your preparation of the case. If the psychologist answers that he or she is aware of relevant research but cannot recall the citations, simply ask the psychologist to prepare a list of citations and send them to your office as soon as possible. If the psychologist cannot cite any references, this can be used to criticize the psychologist’s overall knowledge in the specific areas about which he or she is forming opinions and making recommendations.
The number of custody evaluations that the psychologist has conducted also is a question that should be asked in order to determine the psychologist’s qualifications and experience. Likewise, but more related to objectivity, the psychologist may be asked about his or her investigations in other custody cases and whether the custody recommendations favored the mother or father. Answers such as “I don’t know” or “I don’t remember” should not be accepted. Psychologists in Florida are required to maintain complete records in their cases for three years and at least a summary of their records for an additional four years.6 Therefore, it is reasonable to ask the psychologist to review his or her records, at least over the last seven years, and get these answers. A follow-up with an expert witness interrogatory after giving the psychologist sufficient time to obtain this information subsequent to the deposition may be in order.
Another issue related to objectivity of the evaluator is the issue of bias. There may be times when unfounded societal or professional biases against certain individuals or behaviors, such as homosexuality, sexual promiscuity, domestic violence, or child sexual abuse may affect the evaluator’s opinions and recommendations. Therefore, if any of these issues are relevant to a particular case, the psychologist’s position on these issues should be determined. If any potential biases are uncovered, the psychologist should be asked to provide references for any psychological research or literature that supports his or her position. If the psychologist cannot cite any specific literature on the subject, there will then be a basis to challenge the findings. Research has shown that when an evaluator enters a case with preconceived biases, those biases are likely to be reflected in the questions that are asked and the ultimate conclusions that are drawn.7 Imagine a case in which the evaluator holds strong views that children never lie about sexual abuse and the impact that such an unfounded bias could have on a custody case involving child sexual abuse allegations.
It also is important to inquire as to the psychologist’s knowledge of family law and family law procedures as they apply to the issues in the case. There may be times when an adverse psychologist’s lack of knowledge of relevant law will demonstrate the psychologist’s inexperience, which may go to the weight of the testimony. For example, Florida Family Law Rule of Procedure 12.363(e) provides that whenever a mental health professional is appointed to evaluate a minor child, any findings or report by such an expert “shall not be considered by the court before it is properly admitted into evidence.” Many psychologists who hold themselves out as being experienced in the area of custody evaluations are not cognizant of this rule, and if they submit their report to the court, this error creates a few avenues of approach. For example, asking for recusal of the judge may be an option based upon the argument that the judge had the opportunity to review the report before it was properly admitted into evidence. Another argument may be that the psychologist circumvented the law by submitting the report directly to the court when the psychologist knew or should have known of the existence of the rule. In some cases, the court may be displeased with the psychologist for putting it in such a position and that displeasure may, of course, go to the weight given to the psychologist’s testimony.
Finally, the psychologist’s knowledge of and familiarity with relevant psychological ethical standards and guidelines should be examined. Although almost every psychologist will be familiar with the general ethical standards for psychologists, it is surprising to find that many will not be aware of or familiar with the specialty guidelines for forensic evaluations and custody evaluations. If this is the case, this lack of knowledge is not only professionally unacceptable, it also is likely to result in the discovery that the psychologist did not follow some or all of the procedural guidelines outlined in the standards. If the psychologist responds to this type of challenge by arguing that the guidelines are “just guidelines” and do not have to be followed, the point should be made that the guidelines represent the standard of care in the general area of forensic psychology and the specific area of child custody evaluations.8 Failure to follow these guidelines puts the psychologist in the precarious position of having to explain why he or she is not practicing the standard of care expected among all psychologists who perform forensic evaluations.
Issues Related to Evaluation
• Scope of the Evaluation
At a minimum, a custody evaluation should involve both parents, the minor child(ren), observations of the parent-child relationships, and contact with relevant collateral sources. If an evaluator does not evaluate both parents and the child(ren), he or she cannot and should not make recommendations about custody or time sharing.9 Most psychologists also include psychological testing as a part of the evaluation process. In addition, a review of any relevant records is a typical part of a comprehensive custody evaluation.
The evaluator is responsible for ensuring that all parties are treated as equally as possible. Fairness requires that each party generally be given close to equal amounts of interview time, that the parent-child observation time should be fairly equal, and, generally, that the psychological tests utilized in the case are given to both parties. Similarly, both parents should be given the opportunity to provide collateral sources and records for the evaluator to consider.
• The Forensic Interview
Although every psychologist is likely to conduct interviews differently, there are certain areas of inquiry that are typically included in custody evaluation interviews. Parent interviews usually are done first to get an understanding of the specific issues involved in the case from each parent’s perspective. The parent interview should begin with a thorough discussion about the nature and procedures of the evaluation, including confidentiality limitations. After informed consent is obtained, the parent interview should be designed to discover information about the parent’s psychological functioning; their knowledge and understanding of the child(ren) and their needs; parenting skills, practices, and capacities; and the fit between the parent and the child(ren)’s personalities. Information about past and current custody and time sharing arrangements between the parents and how the child has adjusted to these arrangements also is important information to obtain. In addition, the interview should assess the parent’s current positions on custody and time sharing and how realistic and child-sensitive these positions are.
In order to cross examine an adverse psychological witness properly, it is essential to review all of the notes and information collected during the evaluation. Good note-taking is essential to forensic evaluations because, without detailed notes, other professionals are limited in their ability to review what was done in the evaluation and understand what led to the opinions. That is why psychologists who perform forensic evaluations of any type ethically are required to keep detailed notes.10 This standard for documentation is higher than the standard for documentation in general clinical practice.11
The purpose of reviewing the notes, of course, is to find any errors in the information or lack of specificity in the notes. To this end, it may be wise to issue a subpoena duces tecum to the psychologist’s records custodian prior to any scheduled testimony so that the documents can be reviewed with the client prior to the testimony. Certainly, to the extent that it can be demonstrated that the information relied upon by the psychologist is inaccurate, it may be able to “poison the premise” to the extent of invalidating some or all of the results.
• Traditional Psychological Testing
Although psychological testing is the part of the evaluation usually most foreign and confusing to attorneys, knowing some basic information about psychological testing can be helpful in both preparation and cross examination. For example, it is elementary that psychological tests tend to be grouped into categories called objective and projective tests.
Objective tests as a group are generally considered the more researched, the more valid, and the more reliable tests in the field of psychology.12 With objective tests, the responses that the test-taker gives are controlled to a large degree (i.e., true or false answers; agree or disagree with a statement). In addition, the scoring, results, and interpretation of objectivetests are relatively structured and controlled. Examples of objective tests include the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and the Millon Multiphasic Personality Inventory-III (MCMI-III).
One reason that objectivetests are favored in forensic evaluations is that many have validity scales that provide information about how honest test-takers are being in their answers. Another strength of objective tests is that there is little room for subjective scoring and interpretation. In other words, the scores should be the same no matter who scores the test and most psychologists agree on what represents an elevated score and what such a score means interpretively about the test-taker. Finally, most of the commonly used objective tests have been well-researched and have strong validity (the test measures what it proposes to measure) and reliability (the consistency/stability of the test results).13 Validity, reliability, and a strong research base are important factors in the selection of psychological tests in forensic cases. Therefore, if the tests selected by the psychologist lack validity, reliability, or an adequate research base, this can lead to a very successful attack on the test results and possibly the ultimate opinions offered by the psychologist.
In contrast to objective tests, projectivetests are designed to be ambiguous. The expectation is that the ambiguity of the task will cause test-takers to unknowingly projecting their feelings and beliefs into their responses. Examples of projective tests are the Rorschach (a.k.a. Inkblot) Test, Thematic Apperception Test (TAT), and House-Tree-Person (HTP) Drawings. While some psychologists strongly disagree with the use of projective tests in any type of forensic evaluation, the Rorschach probably is the best known, most commonly used, and most well-researched of the projective tests.14 Therefore, with the possible exception of the Rorschach, if projective tests are used in custody cases, they should be used with extreme caution because of their lack of validity, reliability, and well-accepted or researched scoring systems as well as the level of subjectivity used in their interpretation.15
Finally, many psychologists use intelligence tests in custody evaluations. However, except possibly at extremes (very low IQ individuals), intelligence testing results usually are not necessary or directly relevant to custody issues.16 Some parents with below average intelligence make excellent parents while some parents with superior intelligence make poor parents. Therefore, when intelligence tests are used in custody evaluations, the evaluator should be able to justify why they were used and how much the results contributed to the ultimate conclusions.
Knowing this basic information about testing may help with cross-examination. There also are books that have been written on psychological tests with attorneys in mind, such as The MMPI, MMPI-2 and MMPI-A: A Practical Guide for Expert Witnesses and Attorneys in Court.17 It is not realistic, however, for an attorney with no specialized training in psychological testing to expect to read an article or book and understand the data at the same level as a psychologist.
Therefore, whenever financially feasible, a psychological consultant should be hired. A psychological consultant can obtain the actual test data, re-score it to make sure it was scored and interpreted correctly (many times it has not been), provide consultation, elaborate on the strengths and weaknesses of the overall evaluation, and assist in preparing for deposition or trial questioning of the custody evaluator.
Even if a hired consultant is not feasible, at some point in time the custody evaluator should be asked to explain what tests were used, why, and what the results mean. This may seem simple, but often it is not. A common problem for psychologists, intentional or otherwise, when answering seemingly simple questions is that they tend to use a lot of jargon and technical terms when describing test results. Answers like, “The L scale on the MMPI-2 was significantly elevated, which reduces the validity of the measure due to a defensive response set” are not uncommon and can make you cautious about proceeding further. In fact, in some cases, such responses may lead to avoidance of this area of questioning altogether.
However, there is no reason to play on such an uneven playing field. First, the attorney is in control of the questioning and should spend as much time as necessary getting the evaluator to answer questions in ways that are understandable. Second, there is no reason that psychologists who testify in the legal arena cannot explain tests and test results in understandable terms. Consider the fact that psychologists have to speak in plain English when they explain test results to their adult clients or to the parents of their child clients. If it can be done in clinical practice, it can be done in a legal case.
As far as challenges related to test selection, the use of objective testing is easier to defend than the use of projective tests. There are volumes of research on the validity and reliability of the commonly used objective tests, such as the MMPI and MCMI tests.18 In addition, objective scoring and interpretive criteria can be easily shown. In contrast, the validity and reliability of almost every projective test, including the often used House-Tree-Person Test and the Thematic Apperception Test, are either poor or nonexistent.19 With the exception of the Rorschach, there are no objective or well-accepted scoring systems for projective tests and there is no reliable normative data or research on the use of these tests in any type of case, particularly not custody evaluations. In addition, there are no validity scales on projective tests to measure how honest a person was being when giving responses. For all of these reasons, whenever psychologists use such tests, there will be legitimate grounds to attack the conclusions drawn from them. The attack can be even stronger if the psychologist relied heavily on these tests in forming his or her ultimate opinions in the case.
If projective tests were used in your case, ask the psychologist to provide you with research that shows the validity and reliability of these tests and the research on their use in custody cases. If the psychologist broadly references a book written on this subject, ask for specific information on the validity, reliability, and the normative sample for the particular test(s) and how that normative sample compares to the parties in the custody case. There is no such data for most projective tests and that is why weak projective tests should not be used in forensic evaluations.
In fact, an article written by psychologist Kirk Heilbrun indicates that the reliability of any test used in a forensic case should be at or exceed. 80.20 If not, the test should not be used. As an attorney, one does not need to completely understand what the. 80 means; just make the psychologist testify as to which of the tests that he or she utilized meets that criteria. Few projective tests will.
• Specialized Psychological Tests
More recently, specialized tests have been published in an attempt to provide more directly relevant information on custody issues, such as parenting skills and abilities. Examples of such tests are the Parent Awareness Skill Survey (PASS), the Ackerman-Schoendorf Scales for Parent Evaluation of Custody (ASPECT), and the Bricklin instruments (Bricklin Perceptual Scales, Perception of Relationships Test, and Parent Perception of Child Profile). These tests are less regularly used in custody cases than are traditional objective tests;21 however, when they are used, their limitations should not be overlooked.
The specialized tests described above have undergone rather extensive reviews in the psychological literature, and these reviews have repeatedly identified significant limitations related to their validity and reliability.22 Therefore, when these tests are used in custody cases, it should be fairly easy to challenge the results. For an excellent recent review of these tests, you should refer to an article by Otto, Edens, and Barcus, but the conclusion they reach about these tests speaks for itself:
Although those who have developed these instruments have made an important first step, it is clear that further research examining the reliability and validity of these forensic instruments is necessary before they become a part of the custody evaluator’s assessment process. What is less clear, however, is whether this research will occur. In essentially every published review of these custody assessment instruments, concerns about their reliability and validity have been identified and the need for research has been made clear. Unfortunately, child custody evaluators continue to wait for that research.23
Issues Related to Report
A good custody evaluation report should focus more on the data that formed the basis for the opinions rather than psychological theory and excessive jargon.24 The report also should clearly present the evaluator’s opinions and recommendations as well as the basis for these opinions and recommendations. In doing so, it should include a description of all of the data relied upon in the evaluation, including parent and child interview information, test results, parent-child observations, collateral source information, and whatever records were reviewed and relied upon. In addition, the report should include demographic information about the parties and the child(ren), the dates of the evaluation, the date of the report, reason for referral, who was evaluated, and what procedures were utilized.
A good report also is balanced. Parents usually have strengths and weaknesses, and both should be included in the report. Similarly, each parent’s concerns and comments should be given equal coverage, even if the evaluator’s conclusions end up being that one parent’s concerns are supported by the data and the other parent’s concerns are not. Any recommendations that are offered should be based on relevant data, research, and the developmental needs of the child(ren). Yet, recommendations also should be realistic in terms of implementation. In addition, any limitations of the evaluation should be clearly described and discussed in the report. For example, if one parent is given a test that the other parent is not given, the reason for this variation should be documented.
Finally, psychologists should be willing to concede that even reasonable and realistic time-sharing recommendations for children at one particular point in time are not likely to remain reasonable and realistic as the children grow and mature. Developmental considerations should always play a role in time-sharing plans. Yet, the psychologist should readily acknowledge that developmental issues and needs change as children mature.
The decisions that are made in child custody cases can have a long-term impact on the lives of children and families. If the court has seen fit to order a custody evaluation in a particular case, it is very likely that the court will rely, to some extent, on the findings of the court-appointed or agreed-upon psychologist unless given valid reasons not to do so. Therefore, it is incumbent upon attorneys in their representation of clients to become familiar with the proper procedures and guidelines for conducting such evaluations. Such familiarity should greatly assist in recognizing strong and weak evaluations, and may help make some decisions as to how to proceed in the case. q
1 Committee on Ethical Guidelines for Forensic Psychologists, Specialty Guidelines for Forensic Psychologists, 15 Law and Human Behavior no. 6, at 655–665 (1991).
2 Committee on Professional Practice and Standards, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychologist no. 7, at 677–680 (1994); Association of Family and Conciliation Courts, Model Standards of Practice for Child Custody Evaluations (1994).
3 Committee on Professional Practice and Standards, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychologist no. 7, at 677–680 (1994).
4 Committee on Ethical Guidelines for Forensic Psychologists, Specialty Guidelines for Forensic Psychologists, 15 Law and Human Behavior no. 6, at 655–665 (1991); Committee on Professional Practice and Standards, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychologist no. 7, at 677–680 (1994); Association of Family and Conciliation Courts, Model Standards of Practice for Child Custody Evaluations (1994).
5 Committee on Ethical Guidelines for Forensic Psychologists, Specialty Guidelines for Forensic Psychologists, 15 Law and Human Behavior no. 6, at 655–665 (1991); Committee on Professional Practice and Standards, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychologist no. 7, at 677–680 (1994); Association of Family and Conciliation Courts, Model Standards of Practice for Child Custody Evaluations (1994).
6 Fla. Admin. Code 64B19-19.003(3).
7 M.D. Everson & B.W. Boat, False Allegations of Sexual Abuse by Children and Adolescents, 2 J. Am. Acad. Child and Adolescent Psychiatry 230–235 (1989); K.A. Kendall-Tackett & M.W. Watson, Factors that Influence Professionals’ Perceptions of Behavioral Indicators of Child Sexual Abuse, 6 J. Interpersonal Violence 385–395 (1991); M.D. Everson B.W. Boat, S. Bourg & K.R. Robertson, Beliefs Among Professionals About Rates of False Allegations of Child Sexual Abuse, 11 J. Interpersonal Violence no. 4, at 541–553 (1996).
8 D.L. Shapiro, Forensic Psychological Assessment: An Integrative Approach 232, 233 (1991); A.K. Hess & I.B. Weiner, The Handbook of Forensic Psychology 676, 677 (1999).
9 Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychologist no. 7, at 677–680; Association of Family and Conciliation Courts, Model Standards of Practice for Child Custody Evaluations (1994).
10 Committee on Ethical Guidelines for Forensic Psychologists, Specialty Guidelines for Forensic Psychologists, 15 Law and Human Behavior no. 6, at 655–665 (1991).
12 M.J. Ackerman & A.W. Kane, Psychological Experts in Divorce Actions 492–493 (1998).
13 Id. at 339–343.
15 B.K. Clark, Acting in the Best Interest of the Child: Essential Components of a Child Custody Evaluation, 29 Fam. L.Q. no. 1, at 19–38 (1995).
17 K.S. Pope, J.N. Butcher & J. Seelen, The Mmpi, Mmpi-2, & Mmpi-A: a Practical Guide for Expert Witnesses and Attorneys (1993).
18 J.R. Graham, MMPI-2: Assessing Personality and Psychopathy (2000); The Millon Inventories: Clinical and personality assessment (Millon, T., ed.) (1997).
19 Ackerman & Kane, supra note 12, at 490–493.
20 K. Heilbrun, The Role of Psychological Testing in Forensic Assessment, 16 Law and Human Behavior no. 3, at 257–272.
21 Ackerman & Kane, supra note 12, at 182.
22 R.K. Otto, J.F. Edens & E.H. Barcus, The Use of Psychological Tests in Child Custody Evaluations, 38 Family and Conciliation Courts Review no. 3, at 312–340 (2000).
24 Clark, supra note 15, at 19–38.
Sherrie Bourg Carter received a B.S. in psychology in 1986 and an M.S. in experimental psychology in 1988 from the University of Southwestern Louisiana. In 1992 she obtained an M.S. in clinical psychology and in 1993 a doctorate in psychology from Nova University, Ft. Lauderdale. Dr. Bourg Carter serves as an adjunct professor at Nova Southeastern University and is director of the Institute for Behavioral Sciences and the Law in Plantation.
Dale R. Sanders received an undergraduate degree in accounting from the University of Miami in 1967 and his J.D. from the University of Florida College of Law in 1970. He limits his practice to family law and is a shareholder in Lyons and Sanders, Chartered, Ft. Lauderdale.
This column is submitted on behalf of the Family Law Section, Jeffrey P. Wasserman, chair, and David L. Manz and Susan G. Chopin, editors.