For forensic family evaluators custody evaluators

For forensic family evaluators
(a.k.a., "custody evaluators")

"More professionals, at all educational levels, are performing child custody evaluations without having obtained formal training; many practitioners are performing evaluations that do not meet the needs of the courts that have appointed them; with increasing frequency, judges have expressed concern over the poor quality of the reports being submitted to them by evaluators; and problems with the custody evaluation process have become the subject of front page articles in newspapers as prestigious as The New York Times."

Martindale, D. A., & Gould, J. W. (2008). Evaluating the evaluators in custodial placement disputes.
In H. V. Hall (Ed.), Forensic psychology and neuropsychology for criminal
and civil cases (p. 527). Boca Raton, FL: CRC Press.

What is forensic family evaluation?

Forensic family evaluation refers to the application of standardized psychological observation and measurement methods to assist the courts to answer child-centered relationship questions. Forensic family assessment is distinct from individual evaluation (e.g., conventional intelligence testing) in that the focus is on the quality of relationships as they bear on a child's well-being. They are also distinct from juvenile justice evaluations which are child-centered and may include questions about relationships (e.g. "Is the child able to establish healthy relationships?"), but are primarily focused on a specific minor's culpability, responsibility and capacity to change .

Types. Forensic family evaluation is a broad category of professional mental health assessment procedures that includes what is conventionally known as "child custody evaluations" or CCEs. Also included under this rubric are child-centered, relationship evaluations that arise in the context of foster and adoptive care, attachment or "bonding" evaluations, termination of parental rights, relocation litigation, reunification or reconciliation matters, and post-divorce litigation seeking to re-allocate parenting rights and responsibilities.

Labels. The phrase "child custody evaluation" remains in common use but is more and more eschewed by professionals and jurisdictions that recognize that the word "custody" connotes ownership. The word "visitation" is similarly falling into disfavor. Although alternatives to these familiar references can become a mouthful, "child custody evaluation" is better known as "parenting plan evaluation" or as "child-centered family evaluation" (CCFE). "Visitation" is better known as "access" or "parenting time." The evaluator is responsible to present these concepts using language that is congruent with relevant jurisdictional conventions, always aware that these subtleties can fuel or douse the fires of family conflict.

Forensic family evaluation by any name is an intense, intrusive, highly emotionally charged, often expensive and pivotal moment for any individual or family. The process is not scientifically reliable or valid. The voluminous literature in family law and the forensic mental health fields contain scant evidence that children who have undergone family forensic evaluation are any better or worse for the experience years later. Nevertheless, forensic family evaluation is in very high demand and, in some jurisdictions, can be instrumental in prompting litigants to settle pending litigation consistent with the evaluators' recommendations.

Read more here:

Van Horne, B. A. (2004). Psychology Licensing Board Disciplinary Actions: The Realities. Professional Psychology: Research and Practice, 35(2), 170-178.

Kelly, R. F. and Ramsey, S. H. (2009). Child custody evaluations: The need for systems-level outcome assessments. Family Court Review, 47: 286–303.

Vertue, F. M. (2011). Applying case study methodology to child custody evaluations. Family Court Review, 49: 336–347.

Garber, Benjamin D. (2016). Exploring a process-oriented forensic family observation protocol. Family Court Review.

Patel, Samir H.; Choate, Laura Hensley (2014). Conducting child custody evaluations: Best practices for mental health counselors who are court-appointed as child custody evaluators. Journal of Mental Health Counseling, Vol 36(1),18-30 .

For many skilled evaluators, forensic family evaluation represents the perfect integration of organization, clinical acumen, scientific research, social science evaluation, and professional responsibility. The process requires a synthesis and depth of knowledge of child development, family systems, and jurisprudence. Regardless of motivation, the forensic family evaluator is engaged in one of the most professionally risky endeavors in the field. Those of us who do this work are extremely likely to face licensing board complaints and malpractice suits.

Read more here:

Pickar, D. B. (2007). On being a child custody evaluator: Professional and personal challenges, risks, and rewards. Family Court Review, 45: 103–115.

Glassman, J. B. (1998). Preventing and managing board complaints: The downside risk of custody evaluation. Professional Psychology: Research and Practice, 29(2), 121–124.

Benjamin, G. A. H., & Gollan, J. K. (2003). Forensic practice guidebook. Family evaluation in custody litigation: Reducing risks of ethical infractions and malpractice.

Relevant professional guidelines and standards.

Forensic family evaluators are held accountable by courts, licensing boards, and consulting experts such as Family Law Consulting, PLLC, to comply with jurisdictional mandates, the court's orders, and all relevant guidelines and standards of practice. This includes:

The American Psychological Association's "Guidelines for Child Custody Evaluations in Family Law Proceedings"

The Association of Family and Conciliation Courts' "Model Standards of Practice for Child Custody Evaluation"

The American Academy of Matrimonial Lawyers' "Child Custody Evaluations Standards"

See also: Coupet, Sacha M., The AAML Child Custody Evaluation Standards: Bridging Two Worlds.
American Academy of Matrimonial Lawyers, 295 (2012)

The American Academy of Child and Adolescent Psychiatry's "Practice Parameters for Child Custody Evaluation"

Practice Guidelines for Child Custody Evaluations for Licensed Clinical Social Workers

The American Bar Association's "Section of Family Law Standards of Practice for Lawyers Representing Children in Custody Cases"

What's the question?

A court's order that Mr. and Mrs. Smith engage you to complete a "custody evaluation" is necessary, but hardly sufficient. A competent and skilled evaluator needs the court to clarify the particular questions to be answered and the nature of the answers sought. At issue is whether the evaluator's job is to simply observe and report, observe and infer hypotheses, or to observe, infer, and recommend answers to the ultimate question before the court, usually regarding the future allocation of parenting rights and responsibilities.

Time and again, otherwise adequate family forensic evaluations (and their authors in deposition or on the stand) fail to understand and acknowledge these successive levels of analysis.

Read more here:

Tippins, T. M., & Wittmann, J. P. (2005). Empirical and Ethical Problems With Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance. Family Court Review, 43(2), 193-222.

Kelly, J. B., & Johnston, J. R. (2005). Commentary on Tippins and Wittmann's "Empirical and Ethical Problems With Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance". Family Court Review, 43(2), 233-241.

Bala, N. (2005). Tippins And Wittmann Asked The Wrong Question: Evaluators May Not be "Experts," But They Can Express Best Interests Opinions. Family Court Review, 43(4), 554-562.

Dessau, L. (2005). A Short Commentary on Timothy M. Tippins and Jeffrey P. Wittmann's "Empirical and Ethical Problems With Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance". Family Court Review, 43(2), 266-269.

Gould, J. W., & Martindale, D. A. (2005). A Second Call for Clinical Humility and Judicial Vigilance: Comments on Tippins and Wittmann (2005). Family Court Review, 43(2), 253-259.

Common errors

A review of board complaints, malpractice actions and work product reviews concerning forensic family ("custody") evaluations spanning over a decade and numerous jurisdictions across North America identify a handful of essential errors:

Failure to comply with relevant ethics, guidelines and standards of practice

Failure to obtain adequate informed consent: The court order is not enough. Evaluators are ethically obligated to establish that participants are fully aware of the nature, scope, meaning and limitations of the evaluative process in advance of participation. In some instances, informed assent may be sufficient. Even references should be advised in advance that their contribution is voluntary and is not confidential.

See also: Connell, M. (2006). Notification of purpose in custody evaluation: Informing the parties and their counsel. Professional Psychology: Research and Practice, 37(5), 446-451.

Failure to collect balanced data. Evaluators are ethically bound to seek out (and ideally gather) an equitable breadth and depth of data on all parties.

Failures of impartiality, particularly in the form of ex parte communications with parties' counsel.

Failures of documentation. Evaluators are ethically bound to compile a record that supports the concluding report and can be reviewed by impartial third parties.

Failure to demonstrate consideration of multiple, competing hypotheses.

Failure to interpret the data collected within relevant developmental, systemic, and legal parameters.

Failure to interpret the data within relevant and contemporary theory and empirical knowledge. For example, a discussion of "parental alienation syndrome" or "parental alienation" without consideration of enmeshment and estrangement misses the mark.

Failure to respect relevant boundaries. For example, offering non-emergency advice, counsel or direction in the role of evaluator.

Read more here:

Kirkland, K., & Kirkland, K. L. (2001). Frequency of child custody evaluation complaints and related disciplinary action: A survey of the Association of State and Provincial Psychology Boards. Professional Psychology: Research and Practice, 32(2), 171–174.

Bow, J. N., Gottlieb, M. C., Siegel, J. C., & Noble, G. S. (2010). Licensing board complaints in child custody practice. Journal of Forensic Psychology Practice, 10(5), 403-418.

Test validity in family law matters.

Perhaps you'd agree that a ruler is an excellent instrument if you need to measure distance, but useless if you need to measure time. The same is true of standardized adult psychological tests. The most statistically reliable and valid instrument ever created is only reliable and valid for its intended use.

Consult Buros Center For Testing about the instruments that you use

Many forensic family evaluators administer standardized psychometric instruments to individual parents and include the resulting data in the summary report that is delivered to the court, and then speculate about if and how these individual profiles bear on parenting, co-parenting or the best interests of the child.

Read more here:

Garber, B.D. & Simon, R.A. (2018). Individual Adult Psychometric Testing and Child Custody Evaluations: If the Shoe Doesn’t Fit, Don’t Wear It. Journal of the American Academy of Matrimonial Lawyers, 30 (2), 325-341.

Sanders, J.D. and Katz, S. (2013) The Overuse and Misuse of Psychological Testing:
Why Less is More. American Journal of Family Law, Vol. 26, No 4.

Ackerman, M. J. and Pritzl, T. B. (2011). Child custody evaluation practices: A 20 year follow-up. Family Court Review, 49: 618–628.

Martindale, D. A., Tippins, T. M., Ben-Porath, Y. S., Wittmann, J. P. and Austin, W. G. (2012), Assessment instrument selection should be guided by validity analysis, not professional plebiscite: Response to a flawed survey. Family Court Review.

Within obvious extremes, the nuances of I.Q., social, emotional or personality functioning as assessed via contemporary individual psychometric instruments have little or no empirically demonstrable relationship to parenting, co-parenting and the best interests of the child. And those "obvious extremes"? They're obvious. They'll be self-evident in the courtroom, in interview and from references.

Worse, psych testing commonly generates diagnoses or diagnostic hypotheses. Once these data exist in the evaluator's file -even if they are never referenced in the summary report- they will be discovered and exaggerated and misunderstood and exploited to the detriment of all. Forensic family evaluation is not a competition to discover which parent has the fewest DSM labels.

Family Law Consulting, PLLC, takes great care when reviewing a professional's work product to assure that any standardized psychometric data brought to bear on best interests considerations are reliable and valid for that purpose.

Read more here:

Drozd, L. & Flens, J. (2005). Psychological Testing in Child Custody Cases. Haworth Press.

Hagan, L. D., & Hagan, A. C. (2008). Custody evaluations without psychological testing: Prudent practice or fatal flaw? Journal of Psychiatry & Law, 36(1), 67-106.

Otto, R.k.; Edens, J.F. & Barcus, E.H. (2000). The use of psychological testing in child custody evaluations. Family Court Review, 38(3), 312–340.

Ellis, E. M. (2012). Are MMPI–2 Scale 4 elevations common among child custody litigants? Journal of Child Custody: Research, Issues, and Practices, 9(3), 179-194.

Work product review.

"Work-product review" describes the expert consultant's role providing the court with impartial checks and balances intended to assure that the forensic family evaluator's work is consistent with relevant ethics, guidelines and standards. In it's most common form, the expert consultant is hired by counsel for a parent who reads the expert's summary report as unfavorable to his or her wishes or needs. However, the same review process can also occur on behalf of the "favored" parent, the GAL, or the court itself. In some instances, the evaluator him- or herself will hire Family Law Consulting, PLLC, to conduct a work product review

"Reviewers provide a monitoring function for the court or a function of forensic quality control so the court will not be misled by expert testimony of evaluators that is based on flawed data collection and/or analysis"

Austin, W. G., Kirkpatrick, H. D. and Flens, J. R. (2011), The emerging forensic role for work
product review and case analysis in child access and parenting plan disputes.
Family Court Review, 49: 737–749.

Read more here:

Martindale, D. A., & Gould, J. W. (2008). Evaluating the evaluators in custodial placement disputes. In H. V. Hall (Ed.), Forensic psychology and neuropsychology for criminal and civil cases (pp. 527-546). Boca Raton, FL: CRC Press.

Austin, W. G., Kirkpatrick, H. D. and Flens, J. R. (2011), The emerging forensic role for work
product review and case analysis in child access and parenting plan disputes.
Family Court Review, 49: 737–749.

Austin, W. G., Dale, M. D., Kirkpatrick, H. D., & Flens, J. R. (2011). Forensic expert roles and services in child custody litigation: Work product review and case consultation. Journal of Child Custody: Research, Issues, and Practices,8(1–2), 47–83.

Gould, J. W., Kirkpatrick, H. D., Austin, W. G., & Martindale, D. (2004). A Framework and Protocol for Providing a Forensic Work Product Review: Application to Child Custody Evaluations. Journal of Child Custody: Research, Issues, and Practices, 1(3), 37–64.

Kirkpatrick, H. D., Austin, W. G., & Flens, J. R. (2011). Psychological and legal considerations in reviewing the work product of a colleague in child custody evaluation. Journal of Child Custody: Research, Issues, and Practices, 8(1–2), 103–123.

Family Law Consulting PLLC: Evaluator prophylaxis, tune-up and defense.

Mental health professionals are not only wise to engage in routine consultation with colleagues, many licensing bodies require peer consultation or supervision on an ongoing basis. Family Law Consulting, PLLC, and Dr. Ben Garber are available to provide consultation directly to forensic family evaluators at any point in the process, from evaluation conceptualization and planning, through data collection, interpretation, summary and deposition or testimony. When necessary, Family Law Consulting, PLLC, will work with evaluators and defense counsel to respond to board complaints and malpractice actions.

Family Law Consulting, PLLC, and Dr. Garber will work directly with forensic family evaluators to:

Assist an individual professional, an entire practice or consultation group to establish ethically sound, empirically-driven, child-centered and systemically-informed forensic family evaluation procedures from the ground up, including the provision of reading in current research and methods.

Assist a single professional or group practice to fine-tune existing forensic family evaluation process, from the enabling court order through testimony, including the provision of standardized questionnaires and institution of cutting edge methodologies.

Preview and critique family forensic reports and/or files in advance of delivery to the court.

Coach the family forensic evaluator in preparation for deposition, testimony or in defense of work product subject to critical review.

Consult to board defense and malpractice defense counsel regarding the adequacy of a family forensic evaluation and the validity of consumer complaints.

Consult to licensing boards in consideration of consumer complaints concerning family forensic evaluations, relevant ethics, guidelines, standards and practices.