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Protecting Children From Incompetent Evals and Tesitmony

Protecting Children From Incompetent Evals and Tesitmony

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Published by Ricardo
Journal Vol 19-2-5 Protecting Children From Incompetent Evals and Tesitmony
Journal Vol 19-2-5 Protecting Children From Incompetent Evals and Tesitmony

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Published by: Ricardo on Nov 30, 2009
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07/10/2013

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Vol. 19, 2005Forensic Evaluations
277
Protecting Children FromIncompetent Forensic Evaluations andExpert Testimony
Mary Johanna McCurley*Kathryn J. Murphy**Jonathan W. Gould***
I.Introduction
Mental health professionals are frequently appointed bycourts to become involved in custody cases in the role of childcustody evaluator. This role requires that the mental health pro-fessional assess the fit between a minor child’s emerging develop-mental and socioemotional needs and the parents’ comparativeability to meet those needs. Following that assessment, themental health professional is expected to tender recommenda-tions to the court regarding the extent to which various parentingplans will further the child’s best psychological interests.A.
 Influence of the Evaluator 
The recommendations contained in child custody evalua-tions (“CCEs”) exert considerable influence on the course of ongoing custody litigation. Many courts accord significant weightto the opinions of child custody evaluators, often accepting theevaluator’s recommendations without challenge.
1
An evaluator’srecommendations can also precipitate case settlement or materialconcessions once both parties become aware of the evaluator’sfindings. Given the import of CCEs, it is imperative that these
*Partner, McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P.,Dallas, Texas.**Partner, Koons, Fuller, Vanden Eykel, and Robertson, P.C., Dallas,Texas.***Forensic and Clinical Psychologist, Private Practice, St. Paul,Minnesota.
1
T
HE
S
CIENTIFIC
B
ASIS OF
C
HILD
C
USTODY
D
ECISIONS
(RobertGalatzer-Levy & Louis Kraus, eds., 1999); James N. Bow & Francella A. Quin-nell,
 A Critical Review of Child Custody Evaluation Reports
, 40 F
AM
. C
T
. R
EV
.164 (2002).
 
278
 JournaloftheAmericanAcademyofMatrimonialLawyers
evaluations should be conducted with due regard for scientificmethods, extant behavioral science research, ethical standardsand professional practice guidelines. This responsibility is furtherheightened by the need to protect the well-being of children of divorcing parents
2
and to avoid inadvertently harming families ata time of enormous stress and conflict.
3
B.
Criticism of Evaluations Falling Below APA Standards
Unfortunately, CCEs frequently fall below recommendedpractice methods promulgated by the American PsychologicalAssociation (“APA”). Commentators have criticized the quality,reliability, and utility of CCEs by noting the lack of scientificmethodology, empirical grounding, and psycholegal relevancecommon among these reports.
4
This article discusses the requirement that expert testimonyregarding parenting competency and comparative custodial suita-bility must meet legal standards of admissibility. It builds on aprior article coauthored by Dr. Jonathan Gould.
52
R
OBERT
H. W
OODY
, C
HILD
C
USTODY
: P
RACTICE
S
TANDARDS
, E
THI-CAL
I
SSUES
,
AND
L
EGAL
S
AFEGUARDS FOR
M
ENTAL
H
EALTH
P
ROFESSIONALS
(2000).
3
Marc J. Ackerman & Melissa C. Ackerman,
Child Custody EvaluationPractices: A 1996 Survey of Psychologists
, 30 F
AM
. L.Q. 565 (1996).
4
T
HE
S
CIENTIFIC
B
ASIS OF
C
HILD
C
USTODY
D
ECISIONS
,
 supra
note 1;G
ARY
B. M
ELTON
, J
OHN
P
ETRILA
, N
ORMAN
G. P
OYTHRESS
, & C
HRISTOPHER
S
LOBOGIN
, P
SYCHOLOGICAL
E
VALUATIONS FOR THE
C
OURTS
: A H
ANDBOOKFOR
M
ENTAL
H
EALTH
P
ROFESSIONALS AND
L
AWYERS
(2nd ed. 1997); DanielA. Krauss & Bruce D. Sales,
Legal Standards, Expertise, and Experts in theResolution of Contested Child Custody Cases
, 6 P
SYCHOL
., P
UB
. P
OL
Y
& L. 843(2000); Timothy M. Tippins & Jeffrey P. Wittman,
Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Ju-dicial Vigilance,
43 F
AM
C
T
. R
EV
.
193
(April 2005); Ira D. Turkat,
Questioningthe Mental Health Expert’s Custody Report 
, 7 A
M
. J. F
AM
. L. 175 (1993).
5
The authors wish to thank Dana Royce Baerger, Robert Galatzer-Levy, and Sandra G. Nye for allowing us to liberally use their prior article:Dana Royce Baerger, Robert Galatzer-Levy, Jonathan W. Gould, & Sandra G.Nye,
Methodology for Reviewing the Reliability and Relevance of Child CustodyEvaluations,
18 J. A
M
. A
CAD
. M
ATRIM
. L
AW
. 35 (2002).
 
Vol. 19, 2005Forensic Evaluations
279C.
Differences Between Therapeutic and Forensic Mental Health Assessment 
Some child custody evaluators do not adequately under-stand the distinctions between a therapeutic and a forensic role.Furthermore, much of the testimony offered by child custodyevaluators is based upon clinical impressions uninformed by em-pirical research, yet presented as empirical science. These twopoints merit further discussion. First, as the field of forensicmental health has grown to constitute a distinct subspecialty,commentators have noted the increasing need for practitioners toobtain specialized and advanced training.
6
The reason for this isthat the field requires appreciably distinct competencies andskills than does the treatment of patients. Moreover, differencesbetween forensic and therapeutic services have now been codi-fied in ethical guidelines
7
and clarified in the behavioral scienceliterature.
8
II.Expert Testimony in Child CustodyEvaluations —
Daubert 
 / 
 Frye
A.Frye v. United StatesExpert testimony has long played a substantial role in thetrial of a child custody case. Whether in the form of a socialstudy or a psychiatric evaluation after a battery of tests, testi-mony based on the social sciences has become the norm. Experttestimony regarding parenting competency and comparative cus-todial suitability must meet legal standards of admissibility.In 1923, the U.S. Supreme Court in
Frye v. United States
9
issued the primary determinative test for the admissibility of “novel” scientific evidence. For seventy years, the general stan-
6
Randy K. Otto & Kirk Heilbrun,
The Practice of Forensic Psychology: A Look Toward the Future in Light of the Past 
, 57 A
M
. P
SYCHOLOGIST
5 (2002).
7
A
MERICAN
A
CADEMY OF
P
SYCHIATRY AND THE
L
AW
, E
THICAL
G
UIDELINES FOR THE
P
RACTICE OF
F
ORENSIC
P
SYCHIATRY
(1995); Committeeon Ethical Guidelines for Forensic Psychologists,
Specialty Guidelines for Fo-rensic Psychologists
, 15 L
AW
& H
UM
B
EHAV
. 655 (1991).
8
Lyn R. Greenberg & Jonathan W. Gould,
The Treating Expert: A Hy-brid Role with Firm Boundaries
, 32(5) P
ROF
. P
SYCHOL
.: R
ES
. & P
RAC
. 469(2001).
9
293 F. 1013 (D.C. Cir. 1923).

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