When the Mental Health Expert ' Isn't One

Forensic mental health professionals (hereinafter, FMHPs) who offer their services as evaluators in litigated disputes concerning the custodial placement of or access to children are expected to possess scientific, technical, or other specialized knowledge that will enable them to assist triers of fact. At great cost to families and to public confidence in the operation of our judicial system, the process of adjudicating custody disputes is often perverted by self-identified experts whose knowledge of appropriate procedures and familiarity with current empirical research certainly does not exceed that of the reasonably informed family court judge.

Expertise Exposed for What It Is Not

A few true stories may reveal more than an extended, though erudite, tirade, about the experts who are not what they purport to be.

'Lock 'em in a Room'

In the first story, the protagonist is an FMHP who asserts that she has conducted “thousands” of child custody evaluations. Evidence that a FMHP has conducted many evaluations should not be viewed as evidence that she has done them well. She purports to have developed an as-yet-untested means by which to assess parent-child attachment. In a display of modesty, she has not given her new assessment technique a name, so, in this article, I will refer to it as the “lock 'em in a room” technique.

Each parent comes to the evaluator's office with the child. When the mother comes with the child, part of the time is spent alone with the child, part of the time is spent observing the mother-child interaction, and part of the time is spent alone with the mother. In the course of her deposition, the expert is asked about that portion of the session during which she met with the mother. The child in this case is four years old.

The FMHP explains that while she was interviewing the mother, the child “was locked in a little waiting room that I have. And I always make certain that the child is comfortable. I don't just suddenly say 'You're staying here and we're going inside.' I finesse it so the child will be excited to play with the toys that are there. And I let them know they can knock on the door if they need to.”

Though the evaluator has relied upon number of knocks at the door in formulating her opinion that the child's attachment to her mother is stronger than is her attachment to her father, the evaluator acknowledges on examination that she has not actually kept track of the knocks, but recalls: “With the mother, it was more.” Nowhere in the evaluator's testimony does one find a hint of scientific methodology and the opinion that the evaluator has formulated on the basis of her “lock-'em-in-a-room” technique is an opinion that has been developed in the absence of data. Should expert testimony on the matter of attachment be taken from this FMHP?

'Why Do You Suppose?'

In another case, an FMHP, much of whose clinical work is with children, has listened attentively as a three-year-old child has described something done by her mother. The FMHP inquires: “Why do you suppose Mommy did that?” It is likely that almost all judges probably know that even the most precocious three-year-olds have no idea what “suppose” means, and lack the cognitive capacity to reflect upon the motives of others. This FMHP clearly did not possess scientific, technical, or other specialized knowledge that might have enabled her to assist the trier of fact in a family law matter.

'Standardized Questions'

In the last anecdote, an FMHP, on examination, describes the standardized interview technique that he employs with the parents in custody disputes. “I have a process ' standardized questions. I queue my questions related to the information I am receiving back and I have my own process of going through the information. I do not have a list of the questions that I ask. I have a set format in my head that I get a lot of information from. My format is my standardized procedure. Essentially, in any evaluation I start with getting personal history. I want information that does not have anything to do with the case that I am evaluating [emphasis added]. I ask the questions that are related to the general headings that you would expect. In general, I will always ask people or I will often ask people follow-up questions, depending on the situation. For example, I will ask people if they hear voices or have certain symptoms of mental illness. So, it may not relate to their legal matter, but I want to know these things [emphasis added].”

In the evaluator's explanation of his interview procedure, there is not one sentence that makes any sense. Why would an evaluator “want information that does not have anything to do with the case”? Unless one parent has alleged that the other parent is mentally ill and experiencing hallucinations, is it constructive to incorporate into an interview protocol questions concerning whether people “hear voices or have certain symptoms of mental illness”? Is it at all likely that a judge would know what the evaluator is referring to when he alludes to “the general headings that you would expect”?

Defining Expertise

In all fields of endeavor, there will always be poseurs. There will always be individuals who somehow manage to obtain the pieces of paper that seem to suggest that some body of knowledge has been mastered. The first lesson to be learned by attorneys and judges endeavoring to evaluate an FMHP's professed expertise is that expertise is defined not only by credentials, but also by methodology. Consider the ruling by the United States Supreme Court in Kumho Tire Co., v. Carmichael, 526 U.S. 137 (1999). Evidence proferred by an expert had been rejected by an Alabama court. In upholding the ruling of the Alabama court, the
Supreme Court called attention to the fact that “[t]he District Court did not doubt [the expert's] qualifications ' . Rather, it excluded the testimony because, despite these qualifications, it initially doubted, and then found unreliable, 'the methodology employed by the expert ”.” (at 153).

Forensic Psychology

In 2001, forensic psychology was officially recognized as a psychological specialty by the Commission for the Recognition of Specialties in Professional Psychology (CRSPP), a commission that functions under the aegis of the American Psychological Association. Recognition of forensic psychology as a specialty placed upon psychologists an obligation to secure appropriate education and training in this specialty, yet an alarmingly high percentage of practicing custody evaluators did nothing to prepare for the work in which they are now engaged.

Responding anonymously to survey questions, 31% of currently practicing evaluators acknowledged not having attended any workshops, and 12% indicated that they had read not a single book or journal article addressing custody-related matters [Bow, J. N. & Martindale, D. A. (2009): "Developing and Managing a Child Custody Practice." J. Forensic Psychology Practice, 9:2, 127-137]. It is possible that some of those who are not educating themselves in a manner consistent with professional standards are relying on 'internet wisdom' to guide them. There are numerous professional listservs (Internet discussion groups) to which MHPs can post case-specific inquiries and obtain guidance from colleagues. Court-imposed parenting plans that have been constructed with assistance from FMHPs who, in turn, have sought assistance from the Internet may very well be harmful to families hoping to emerge from their litigation with parenting plans that will best serve the interests of their children.

In one such Internet post, a psychologist describes an assignment that he has accepted and asks his colleagues: “How would you do such an eval? Any suggestions are greatly appreciated.” If the evaluator does not know how to proceed and reaches out blindly for advice, how does he or she separate the good advice from the bad as the replies begin to appear on his computer screen?

In another post, a psychologist who uses the Minnesota Multiphasic Personality Inventory, second edition (MMPI-2) poses this question to his Internet colleagues: “Does anyone know where I can find the composition of the MMPI-2 scales?” I am reasonably confident that many (if not most) family law attorneys are aware that the information sought can be found in the manual ' a document that the psychologist should own and with which the psychologist should be familiar.

In yet another Internet display of ignorance, an FMHP identifying himself as a “Clinical Professor of Psychiatry” at a respected medical school, and inquiring about the Global Assessment of Functioning Scale, asks his listserv colleagues: “Anyone ever here [sic.] of this?” The Diagnostic and Statistical Manual of Mental Disorders (the DSM), a document with which anyone affiliated with a department of psychiatry should be familiar, employs what is known as a multiaxial system. Axis V of the five-axis system is the Global Assessment of Functioning Scale.

Economic concerns cause educational institutions ' including reputable ones ' to do strange things. Among the strange things that are often done is the recruitment of
individuals, some of whom are conspicuously unqualified, to serve in non-remunerative positions. The duties vary. The inducement is the award of an impressive-sounding academic title and, in most cases, access to the library and gym. It cannot be presumed that FMHPs with academic affiliations are any more qualified than are colleagues without such affiliations.

Assessing Expertise Before the Appointment

The best solution to the problem of the expert-who-isn't-an-expert is to screen evaluators with reasonable care before agreeing to their appointment. Such screening should be conducted, even where the experts being proposed are those who have been functioning as evaluators for a reasonable period of time. Our case law is replete with examples of the work and/or the testimony of experts-who-weren't-experts.

In its decision overturning the conviction of Margaret Kelly Michaels on 115 counts of sexual assault on the three- to five-year-old children in her care, the New Jersey Supreme Court noted that there is a “fairly wide consensus ' among experts, scholars, and practitioners concerning improper interrogation techniques” (642 A 2d 1372, at 1377). Eileen Treacy, the FMHP who had improperly interviewed Michaels' young accusers, had functioned as a prosecution expert in a great many cases involving allegations of child sexual abuse. It would be absurd to presume that Treacy knew how to interview young children properly but, for some reason, disregarded what she knew as she interviewed the 20 allegedly sexually assaulted children at the Wee Care Day Nursery, in Maplewood, NJ. It is far more likely that Treacy's many earlier evaluations were conducted with the same ineptitude that characterized her work in the Michaels case.

When the investigation into the allegations was initiated, an FMHP at the Child Abuse Diagnostic and Treatment Center at Children's Hospital of New Jersey provided the parents with a list of symptoms often observed in children who have been sexually abused. The list included stomach aches, separation anxiety, and bedwetting. Is an expert needed to confirm that many children who have not been sexually abused also experience stomach aches, separation anxiety and nighttime enuresis?

In their preemptive screening of FMHPs whose services as evaluators are being considered, attorneys and judges should obtain the information needed to enable them to assess the FMHPs' education, training, and supervised experience in conducting child custody evaluations. Some FMHPs routinely include the necessary information in a curriculum vitae. Where the needed information is not included, it should be requested.

John Zervopolous, a professional educated both in psychology and in law, lectures regularly to attorneys, and encourages them to seek information from FMHPs that will provide an answer to the question: “How do you know what you say you know?” Among the ways to ascertain how purported experts know what they say they know is to obtain information addressing when, where, how, and under whose supervision they acquired the knowledge and skills needed to perform custody evaluations. Obtaining the information listed below may be helpful.

• A list of any courses taken in graduate school that bear directly upon custody-related issues.
• For each post-graduate course taken, obtain: a) dates; b) credits; c) institution; d) instructor; and e) course description, if available.
• For each professional workshop attended, obtain: a) dates; b) duration of workshop; c) continuing education credits awarded; d) sponsoring organization; e) workshop leader(s); and f) workshop description, if available.
• For individual supervision/consultation, obtain: a) dates; b) logged hours; c) supervisor/consultant; and d) description of professional activities in connection with which supervision/consultation was received.
• For group supervision/consultation, obtain: a) dates; b) logged hours; c) name of the supervisor/consultant; d) description of professional activities in connection with which supervision/consultation was received; and e) professions to which others in the group belong.
• For those who assert that much of their knowledge has been obtained through independent study, obtain a reasonably comprehensive list of the materials utilized by them.

After the Barn Door Has Been Opened

When evaluators have already been selected, when their work has been done, and when cases come to trial, attorneys should modify their too-often-boilerplate subpoenas to include a demand that evaluators produce any e-mail messages from colleagues that address the fact patterns of the cases being litigated, whether those messages were sent directly to them or posted to professional listservs. I urge cross-examining attorneys to include in their routine inquiries questions intended to elicit information concerning reliance by evaluators on input from colleagues. Testifying evaluators should be asked if they belong to any professional listservs. Those who do should be asked if they have posted to one or more listservs any inquiries that relate in any way to the issues in dispute in the case.

What Happens When the Expert Is a Computer?

Of the psychologists who use formal assessment instruments such as the Minnesota Multiphasic Personality Inventory, second edition (MMPI-2), a great many order computer-generated interpretive reports (referred to by psychologists as computer based test interpretations ' CBTIs). The question to which there is no discernible answer is: Of those who order CBTIs, what percentage are totally dependent upon the narrative reports to interpret the test data and, without the CBTIs, would be unable to create the descriptive statements that appear in their reports?

Ethical standard 9.09 (c) of the Psychologists' Ethics Code reads: “Psychologists retain responsibility for the appropriate application, interpretation, and use of assessment instruments, whether they score and interpret such tests themselves or use automated or other services.” (p. 1072). Diligent cross-examination provides the means by which attorneys can ascertain whether or not psychologists utilizing CBTIs have, in fact, accepted responsibility for interpretations of the data.

It is likely that, even in states that apply the standards set out in the Frye case, family law attorneys are familiar with Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). Many, however, may not be familiar with the Daubert post-script. The Daubert case was returned to the Ninth Circuit Court and, again, the scientific evidence proffered by the plaintiffs was rejected by the Court. (Daubert v. Merrell Dow Pharmaceuticals (on remand), 43 F.3d. 1311 (9th Cir. 1995). Judge Alex Kozinski, writing for the court, declared that “[s]omething doesn't become 'scientific knowledge' just because it's uttered by a scientist ' .” (Id. at 1315-16). The court's task, Kozinski wrote, “is to analyze not what the experts say, but what basis they have for saying it.” (Id. at 1316).

When evaluators have provided descriptions of litigants that the evaluators assert have been developed on the basis of test data, the means by which to discover “what basis they have for saying” whatever it is that they have said is to identify specific descriptive statements offered by the evaluators and ask what scores or patterns of scores form the basis for those descriptive statements.

Alex Caldwell, whose CBTIs are utilized by many custody evaluators, has presented an opposing perspective. In an e-mail (9/3/09 ' on file, quoted with permission), Caldwell has proposed that a standard response be provided by evaluators facing questions such as the one proposed above. Caldwell compares his CBTIs to consultations with him. Caldwell suggests that evaluators relying upon his CBTIs should make this known and should inform cross-examining attorneys that the “'sources and origins [of specific descriptive statements] are [Caldwell's] responsibility. If you want to identify them, it is your right to retain him and ask him.'” I hypothesize that in very few courts would this response be deemed acceptable.

The Chutzpah Conundrum

Unlike percipient witnesses, most of whom are reluctant participants in the legal process, expert witnesses are ordinarily eager participants. Like confident students in a classroom, they raise their hands, acting in the sometimes mistaken belief that they have the answers. Confidence, like reticence, is relative and though the notion of the modest expert may seem oxymoronic, there are FMHPs who testify with regularity but who do not identify themselves as experts on all matters within the mental health fields. In contrast, there are FMHPs (like the expert who asks a three-year-old child to reflect upon the motives of her mother) who claim expertise in treating children, but who probably know less about the cognitive development of children than do most family court judges and certainly know less than MHPs who recall a reasonable portion of what they learned in undergraduate courses in developmental psychology.

The problem of testimonial temerity becomes particularly thorny when the arrogant expert faces off against the more knowledgeable, but reasonably modest, expert. Since I cannot conclude this article with an answer, I conclude with a challenge to the legal profession. As things now stand, arrogant but unqualified FMHPs who claim expertise in some subspecialty can only be rebutted by other experts who are willing to present themselves to courts as experts in the same subspecialty. What happens when the knowledgeable generalist knows more about the pertinent subspecialty than the self-identified expert? The problem is not academic. It is a problem that often surfaces in disputes that attract FMHPs who are emotionally invested in the issues in dispute. These include disputes that incorporate requests to relocate, allegations of child sexual abuse or intimate partner violence, and claims of parental alienation.

So, Where Does This Leave Us?

In 1995 New Mexico's Legislature passed a law that provided:

When a psychologist or psychiatrist testifies during a defendant's competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts. Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than eighteen inches in length, and [he] shall punctuate crucial elements of his testimony by stabbing the air with a wand.

The legislation was vetoed, but the fact that it passed through two houses of a state legislature bears witness to one state's skepticism and dissatisfaction with the sort of forensic wizardry that this article addresses.

The perspective of New York judges appears to be in sharp contrast with that of the New Mexico legislature. On May 23, 2004, The New York Times published an article by Leslie Eaton headlined “For Arbiters in Custody Battles, Wide Power and Little Scrutiny.” Eaton pointed out that, in litigated custody disputes heard in the courts of New York, “the most important person in determining who gets custody, and on what terms, is frequently a court-appointed forensic evaluator.” Eaton declared ' accurately, in my view ' that evaluators “usually make detailed recommendations [with which] the judges usually go along.”

Conclusion

Whether troubled families embroiled in custody litigation reside in New Mexico, New York, or elsewhere, their futures may lie in the hands of the wizards, charlatans, and poseurs who present themselves as experts, unless their advisory input is scrutinized through vigorous, cross-examination by informed attorneys and vigilant gatekeeping by informed trial judges.

David Martindale, Ph.D., ABPP (forensic) a member of this newsletter's Board of Editors, board certified in forensic psychology by the American Board of Professional Psychology, served as the Reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of The Art and Science of Child Custody Evaluations. His practice is limited to consulting with attorneys, psychologists, and psychology licensing boards in the areas of child custody and professional ethics and standards. He can be contacted by e-mail at [email protected].

Forensic mental health professionals (hereinafter, FMHPs) who offer their services as evaluators in litigated disputes concerning the custodial placement of or access to children are expected to possess scientific, technical, or other specialized knowledge that will enable them to assist triers of fact. At great cost to families and to public confidence in the operation of our judicial system, the process of adjudicating custody disputes is often perverted by self-identified experts whose knowledge of appropriate procedures and familiarity with current empirical research certainly does not exceed that of the reasonably informed family court judge.

Expertise Exposed for What It Is Not

A few true stories may reveal more than an extended, though erudite, tirade, about the experts who are not what they purport to be.

'Lock 'em in a Room'

In the first story, the protagonist is an FMHP who asserts that she has conducted “thousands” of child custody evaluations. Evidence that a FMHP has conducted many evaluations should not be viewed as evidence that she has done them well. She purports to have developed an as-yet-untested means by which to assess parent-child attachment. In a display of modesty, she has not given her new assessment technique a name, so, in this article, I will refer to it as the “lock 'em in a room” technique.

Each parent comes to the evaluator's office with the child. When the mother comes with the child, part of the time is spent alone with the child, part of the time is spent observing the mother-child interaction, and part of the time is spent alone with the mother. In the course of her deposition, the expert is asked about that portion of the session during which she met with the mother. The child in this case is four years old.

The FMHP explains that while she was interviewing the mother, the child “was locked in a little waiting room that I have. And I always make certain that the child is comfortable. I don't just suddenly say 'You're staying here and we're going inside.' I finesse it so the child will be excited to play with the toys that are there. And I let them know they can knock on the door if they need to.”

Though the evaluator has relied upon number of knocks at the door in formulating her opinion that the child's attachment to her mother is stronger than is her attachment to her father, the evaluator acknowledges on examination that she has not actually kept track of the knocks, but recalls: “With the mother, it was more.” Nowhere in the evaluator's testimony does one find a hint of scientific methodology and the opinion that the evaluator has formulated on the basis of her “lock-'em-in-a-room” technique is an opinion that has been developed in the absence of data. Should expert testimony on the matter of attachment be taken from this FMHP?

'Why Do You Suppose?'

In another case, an FMHP, much of whose clinical work is with children, has listened attentively as a three-year-old child has described something done by her mother. The FMHP inquires: “Why do you suppose Mommy did that?” It is likely that almost all judges probably know that even the most precocious three-year-olds have no idea what “suppose” means, and lack the cognitive capacity to reflect upon the motives of others. This FMHP clearly did not possess scientific, technical, or other specialized knowledge that might have enabled her to assist the trier of fact in a family law matter.

'Standardized Questions'

In the last anecdote, an FMHP, on examination, describes the standardized interview technique that he employs with the parents in custody disputes. “I have a process ' standardized questions. I queue my questions related to the information I am receiving back and I have my own process of going through the information. I do not have a list of the questions that I ask. I have a set format in my head that I get a lot of information from. My format is my standardized procedure. Essentially, in any evaluation I start with getting personal history. I want information that does not have anything to do with the case that I am evaluating [emphasis added]. I ask the questions that are related to the general headings that you would expect. In general, I will always ask people or I will often ask people follow-up questions, depending on the situation. For example, I will ask people if they hear voices or have certain symptoms of mental illness. So, it may not relate to their legal matter, but I want to know these things [emphasis added].”

In the evaluator's explanation of his interview procedure, there is not one sentence that makes any sense. Why would an evaluator “want information that does not have anything to do with the case”? Unless one parent has alleged that the other parent is mentally ill and experiencing hallucinations, is it constructive to incorporate into an interview protocol questions concerning whether people “hear voices or have certain symptoms of mental illness”? Is it at all likely that a judge would know what the evaluator is referring to when he alludes to “the general headings that you would expect”?

Defining Expertise

In all fields of endeavor, there will always be poseurs. There will always be individuals who somehow manage to obtain the pieces of paper that seem to suggest that some body of knowledge has been mastered. The first lesson to be learned by attorneys and judges endeavoring to evaluate an FMHP's professed expertise is that expertise is defined not only by credentials, but also by methodology. Consider the ruling by the United States Supreme Court in Kumho Tire Co., v. Carmichael , 526 U.S. 137 (1999). Evidence proferred by an expert had been rejected by an Alabama court. In upholding the ruling of the Alabama court, the
Supreme Court called attention to the fact that “[t]he District Court did not doubt [the expert's] qualifications ' . Rather, it excluded the testimony because, despite these qualifications, it initially doubted, and then found unreliable, 'the methodology employed by the expert ”.” (at 153).

Forensic Psychology

In 2001, forensic psychology was officially recognized as a psychological specialty by the Commission for the Recognition of Specialties in Professional Psychology (CRSPP), a commission that functions under the aegis of the American Psychological Association. Recognition of forensic psychology as a specialty placed upon psychologists an obligation to secure appropriate education and training in this specialty, yet an alarmingly high percentage of practicing custody evaluators did nothing to prepare for the work in which they are now engaged.

Responding anonymously to survey questions, 31% of currently practicing evaluators acknowledged not having attended any workshops, and 12% indicated that they had read not a single book or journal article addressing custody-related matters [Bow, J. N. & Martindale, D. A. (2009): "Developing and Managing a Child Custody Practice." J. Forensic Psychology Practice, 9:2, 127-137]. It is possible that some of those who are not educating themselves in a manner consistent with professional standards are relying on 'internet wisdom' to guide them. There are numerous professional listservs (Internet discussion groups) to which MHPs can post case-specific inquiries and obtain guidance from colleagues. Court-imposed parenting plans that have been constructed with assistance from FMHPs who, in turn, have sought assistance from the Internet may very well be harmful to families hoping to emerge from their litigation with parenting plans that will best serve the interests of their children.

In one such Internet post, a psychologist describes an assignment that he has accepted and asks his colleagues: “How would you do such an eval? Any suggestions are greatly appreciated.” If the evaluator does not know how to proceed and reaches out blindly for advice, how does he or she separate the good advice from the bad as the replies begin to appear on his computer screen?

In another post, a psychologist who uses the Minnesota Multiphasic Personality Inventory, second edition (MMPI-2) poses this question to his Internet colleagues: “Does anyone know where I can find the composition of the MMPI-2 scales?” I am reasonably confident that many (if not most) family law attorneys are aware that the information sought can be found in the manual ' a document that the psychologist should own and with which the psychologist should be familiar.

In yet another Internet display of ignorance, an FMHP identifying himself as a “Clinical Professor of Psychiatry” at a respected medical school, and inquiring about the Global Assessment of Functioning Scale, asks his listserv colleagues: “Anyone ever here [sic.] of this?” The Diagnostic and Statistical Manual of Mental Disorders (the DSM), a document with which anyone affiliated with a department of psychiatry should be familiar, employs what is known as a multiaxial system. Axis V of the five-axis system is the Global Assessment of Functioning Scale.

Economic concerns cause educational institutions ' including reputable ones ' to do strange things. Among the strange things that are often done is the recruitment of
individuals, some of whom are conspicuously unqualified, to serve in non-remunerative positions. The duties vary. The inducement is the award of an impressive-sounding academic title and, in most cases, access to the library and gym. It cannot be presumed that FMHPs with academic affiliations are any more qualified than are colleagues without such affiliations.

Assessing Expertise Before the Appointment

The best solution to the problem of the expert-who-isn't-an-expert is to screen evaluators with reasonable care before agreeing to their appointment. Such screening should be conducted, even where the experts being proposed are those who have been functioning as evaluators for a reasonable period of time. Our case law is replete with examples of the work and/or the testimony of experts-who-weren't-experts.

In its decision overturning the conviction of Margaret Kelly Michaels on 115 counts of sexual assault on the three- to five-year-old children in her care, the New Jersey Supreme Court noted that there is a “fairly wide consensus ' among experts, scholars, and practitioners concerning improper interrogation techniques” (642 A 2d 1372, at 1377). Eileen Treacy, the FMHP who had improperly interviewed Michaels' young accusers, had functioned as a prosecution expert in a great many cases involving allegations of child sexual abuse. It would be absurd to presume that Treacy knew how to interview young children properly but, for some reason, disregarded what she knew as she interviewed the 20 allegedly sexually assaulted children at the Wee Care Day Nursery, in Maplewood, NJ. It is far more likely that Treacy's many earlier evaluations were conducted with the same ineptitude that characterized her work in the Michaels case.

When the investigation into the allegations was initiated, an FMHP at the Child Abuse Diagnostic and Treatment Center at Children's Hospital of New Jersey provided the parents with a list of symptoms often observed in children who have been sexually abused. The list included stomach aches, separation anxiety, and bedwetting. Is an expert needed to confirm that many children who have not been sexually abused also experience stomach aches, separation anxiety and nighttime enuresis?

In their preemptive screening of FMHPs whose services as evaluators are being considered, attorneys and judges should obtain the information needed to enable them to assess the FMHPs' education, training, and supervised experience in conducting child custody evaluations. Some FMHPs routinely include the necessary information in a curriculum vitae. Where the needed information is not included, it should be requested.

John Zervopolous, a professional educated both in psychology and in law, lectures regularly to attorneys, and encourages them to seek information from FMHPs that will provide an answer to the question: “How do you know what you say you know?” Among the ways to ascertain how purported experts know what they say they know is to obtain information addressing when, where, how, and under whose supervision they acquired the knowledge and skills needed to perform custody evaluations. Obtaining the information listed below may be helpful.

• A list of any courses taken in graduate school that bear directly upon custody-related issues.
• For each post-graduate course taken, obtain: a) dates; b) credits; c) institution; d) instructor; and e) course description, if available.
• For each professional workshop attended, obtain: a) dates; b) duration of workshop; c) continuing education credits awarded; d) sponsoring organization; e) workshop leader(s); and f) workshop description, if available.
• For individual supervision/consultation, obtain: a) dates; b) logged hours; c) supervisor/consultant; and d) description of professional activities in connection with which supervision/consultation was received.
• For group supervision/consultation, obtain: a) dates; b) logged hours; c) name of the supervisor/consultant; d) description of professional activities in connection with which supervision/consultation was received; and e) professions to which others in the group belong.
• For those who assert that much of their knowledge has been obtained through independent study, obtain a reasonably comprehensive list of the materials utilized by them.

After the Barn Door Has Been Opened

When evaluators have already been selected, when their work has been done, and when cases come to trial, attorneys should modify their too-often-boilerplate subpoenas to include a demand that evaluators produce any e-mail messages from colleagues that address the fact patterns of the cases being litigated, whether those messages were sent directly to them or posted to professional listservs. I urge cross-examining attorneys to include in their routine inquiries questions intended to elicit information concerning reliance by evaluators on input from colleagues. Testifying evaluators should be asked if they belong to any professional listservs. Those who do should be asked if they have posted to one or more listservs any inquiries that relate in any way to the issues in dispute in the case.

What Happens When the Expert Is a Computer?

Of the psychologists who use formal assessment instruments such as the Minnesota Multiphasic Personality Inventory, second edition (MMPI-2), a great many order computer-generated interpretive reports (referred to by psychologists as computer based test interpretations ' CBTIs). The question to which there is no discernible answer is: Of those who order CBTIs, what percentage are totally dependent upon the narrative reports to interpret the test data and, without the CBTIs, would be unable to create the descriptive statements that appear in their reports?

Ethical standard 9.09 (c) of the Psychologists' Ethics Code reads: “Psychologists retain responsibility for the appropriate application, interpretation, and use of assessment instruments, whether they score and interpret such tests themselves or use automated or other services.” (p. 1072). Diligent cross-examination provides the means by which attorneys can ascertain whether or not psychologists utilizing CBTIs have, in fact, accepted responsibility for interpretations of the data.

It is likely that, even in states that apply the standards set out in the Frye case, family law attorneys are familiar with Daubert v. Merrell Dow Pharmaceuticals, Inc. , 113 S.Ct. 2786 (1993). Many, however, may not be familiar with the Daubert post-script. The Daubert case was returned to the Ninth Circuit Court and, again, the scientific evidence proffered by the plaintiffs was rejected by the Court. (Daubert v. Merrell Dow Pharmaceuticals (on remand), 43 F.3d. 1311 (9th Cir. 1995). Judge Alex Kozinski, writing for the court, declared that “[s]omething doesn't become 'scientific knowledge' just because it's uttered by a scientist ' .” (Id. at 1315-16). The court's task, Kozinski wrote, “is to analyze not what the experts say, but what basis they have for saying it.” (Id. at 1316).

When evaluators have provided descriptions of litigants that the evaluators assert have been developed on the basis of test data, the means by which to discover “what basis they have for saying” whatever it is that they have said is to identify specific descriptive statements offered by the evaluators and ask what scores or patterns of scores form the basis for those descriptive statements.

Alex Caldwell, whose CBTIs are utilized by many custody evaluators, has presented an opposing perspective. In an e-mail (9/3/09 ' on file, quoted with permission), Caldwell has proposed that a standard response be provided by evaluators facing questions such as the one proposed above. Caldwell compares his CBTIs to consultations with him. Caldwell suggests that evaluators relying upon his CBTIs should make this known and should inform cross-examining attorneys that the “'sources and origins [of specific descriptive statements] are [Caldwell's] responsibility. If you want to identify them, it is your right to retain him and ask him.'” I hypothesize that in very few courts would this response be deemed acceptable.

The Chutzpah Conundrum

Unlike percipient witnesses, most of whom are reluctant participants in the legal process, expert witnesses are ordinarily eager participants. Like confident students in a classroom, they raise their hands, acting in the sometimes mistaken belief that they have the answers. Confidence, like reticence, is relative and though the notion of the modest expert may seem oxymoronic, there are FMHPs who testify with regularity but who do not identify themselves as experts on all matters within the mental health fields. In contrast, there are FMHPs (like the expert who asks a three-year-old child to reflect upon the motives of her mother) who claim expertise in treating children, but who probably know less about the cognitive development of children than do most family court judges and certainly know less than MHPs who recall a reasonable portion of what they learned in undergraduate courses in developmental psychology.

The problem of testimonial temerity becomes particularly thorny when the arrogant expert faces off against the more knowledgeable, but reasonably modest, expert. Since I cannot conclude this article with an answer, I conclude with a challenge to the legal profession. As things now stand, arrogant but unqualified FMHPs who claim expertise in some subspecialty can only be rebutted by other experts who are willing to present themselves to courts as experts in the same subspecialty. What happens when the knowledgeable generalist knows more about the pertinent subspecialty than the self-identified expert? The problem is not academic. It is a problem that often surfaces in disputes that attract FMHPs who are emotionally invested in the issues in dispute. These include disputes that incorporate requests to relocate, allegations of child sexual abuse or intimate partner violence, and claims of parental alienation.

So, Where Does This Leave Us?

In 1995 New Mexico's Legislature passed a law that provided:

When a psychologist or psychiatrist testifies during a defendant's competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts. Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than eighteen inches in length, and [he] shall punctuate crucial elements of his testimony by stabbing the air with a wand.

The legislation was vetoed, but the fact that it passed through two houses of a state legislature bears witness to one state's skepticism and dissatisfaction with the sort of forensic wizardry that this article addresses.

The perspective of New York judges appears to be in sharp contrast with that of the New Mexico legislature. On May 23, 2004, The New York Times published an article by Leslie Eaton headlined “For Arbiters in Custody Battles, Wide Power and Little Scrutiny.” Eaton pointed out that, in litigated custody disputes heard in the courts of New York, “the most important person in determining who gets custody, and on what terms, is frequently a court-appointed forensic evaluator.” Eaton declared ' accurately, in my view ' that evaluators “usually make detailed recommendations [with which] the judges usually go along.”

Conclusion

Whether troubled families embroiled in custody litigation reside in New Mexico, New York, or elsewhere, their futures may lie in the hands of the wizards, charlatans, and poseurs who present themselves as experts, unless their advisory input is scrutinized through vigorous, cross-examination by informed attorneys and vigilant gatekeeping by informed trial judges.

David Martindale, Ph.D., ABPP (forensic) a member of this newsletter's Board of Editors, board certified in forensic psychology by the American Board of Professional Psychology, served as the Reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of The Art and Science of Child Custody Evaluations. His practice is limited to consulting with attorneys, psychologists, and psychology licensing boards in the areas of child custody and professional ethics and standards. He can be contacted by e-mail at [email protected].