Ethical Responsibilities in Child Custody Evaluations: Implications for Evaluation Methodology

Child custody evaluators frequently encounter 3 complex problems: (a) assessment of highly contested cases; (b) how to help the court, attorneys, and clients struggle with the ambiguity of the "best interest" standard; and (c) ethical issues in assessing the children's preferences for their primary custodial parent. The purpose of this article is to describe the methodological implications of recent custody evaluation guidelines and recent research. Recommendations include reliance on family-process oriented diagnostic approaches and functional assessment methods, use of evaluation methods in which relevant parties have an opportunity to state their views and rationale concerning the children's best interests, and understanding of the content areas relevant to assessing children's custodial preferences at different developmental levels.     

The child custody evaluation: Issues and trends

Custody disputes are often the crisis point in the divorcing process and the numbers of contested custody cases are increasing. Mental health professionals are being called upon to provide evaluations of these families more frequently than ever. This article focuses on how to perform child custody evaluations. It touches on the highly troublesome cases where accusations of abuse and alcoholism have been made, and how to convey to attorneys the findings of an evaluation. It begins by reviewing developments in child custody law and concludes by addressing the problems between behavioral sciences and the law in these stressful cases. The presentation of clinical examples provides a view of the decision making process, while addressing the contextual setting for these cases as well.     

The Effect of Race on Decisions by Judges and Other Officers of the Court1

This study examined the impact of the ethnic group of defendant and victim on perceptions of a simulated trial. The subjects were judges, prosecuting attorneys, defense attorneys, and probation officers. People of different racial groups are perceived and would be treated differently by the respondents. Most respondents perceived the White defendant as a more serious offender than a minority defendant. However, there was one very important exception—judges. Judges indicated that a minority defendant who victimized a White was more likely to commit future crimes. Minority respondents and different occupational groups responded in diverse ways. Chen's filtering model of case processing in the criminal justice system (1991) is used to explain these results.     

Ethics and the forensic expert: a case study of child custody involving allegations of child sexual abuse

Psychologists who participate as forensic evaluators in custody and visitation cases involving allegations of child sexual abuse must possess advanced assessment skills and a thorough knowledge of child development, child sexual abuse, and child interviewing techniques. This case study illustrates the types of problems that are inevitable when psychologists violate the boundaries of their role as an independent evaluator and fail to uphold their ethical obligation to be knowledgeable and competent in the area in which they profess expertise.     

Risk assessment in sentencing and plea bargaining: The roles of prosecutors and defense attorneys

Research on risk assessment in sentencing has focused heavily on the role of judges. Ignoring the role of other courtroom actors in the sentencing process, however, leaves unexamined the potentially significant effects on judicial decision making of arguments made by prosecutors and defense attorneys at sentencing hearings. Unduly focusing on judges also overlooks the vast majority of sentences arrived at through negotiated guilty pleas. We explored the extent to which considerations of risk are made among prosecutors and defense attorneys when advocating for given sentences in open court or during plea negotiations. We surveyed all prosecutors and defense attorneys in 14 judicial circuits in Virginia and found that most prosecutors and defense attorneys at least “sometimes” explicitly invoked actuarial risk estimates both at sentencing hearings and during plea negotiations. However, defense attorneys were much more likely than prosecutors to be averse to the use of risk assessment in either form of case disposition.     

Conflicting testimony: Judges' and attorneys' perceptions of gender bias in legal settings

Statewide samples of women judges (N = 40), men judges (N = 326), women attorneys (N = 414), men attorneys (N = 288) in Florida rated the extent to which judges and attorneys of both genders engage in different forms of biased behavior against women in legal settings. Women judges and attorneys are most aware of gender-biased behavior against women. Women judges differ, especially, from men judges in perceiving other judges as behaving unprofessionally toward women. Multiple regression results show that this gender gap in perceptions is partly a function of age. This study suggests that promotion of more women to judgeships and educational efforts aimed at the younger generation of men judges will be productive in reducing biased treatment of women in the legal system.We are especially grateful to Barry Sapolsky for providing us with data from the Florida Gender Bias Study Commission surveys of judges and attorneys. We also wish to thank Patricia Martin and Irene Padavic for their thoughtful comments on an earlier draft of this paper.     

MMPI-2 validity scales in child custody evaluations: clinical versus statistical significance

The MMPI-2 is commonly used in the psychological assessment of parents within child custody evaluations. Due to the interface of mental health practitioners with non-mental-health professionals in the context of child custody cases, careful attention must be paid to the potential misunderstanding or misuse of data from psychological testing. While traditional clinical lore has maintained an expectation of clinically significant defensiveness on the MMPI-2 with this population, the research data does not support this view. Despite empirical findings that identify patterns of elevations on the MMPI-2 validity scales with parents involved in child custody disputes, these patterns have been demonstrated to reach statistical but not clinical significance. That is, MMPI-2 profiles that contain elevations on scales L or K that either invalidate or notably suppress clinical scales are not to be expected in the child custody population. False causal attributions contributing to the potential mischaracterization or loss of important data related to personality functioning within this population are identified and discussed. Potential dangers associated with such false causal attributions are reviewed.     

Getting it right: the trial of sexual assault and child molestation cases under federal rules of evidence 413-415

Congressional enactment of Federal Rules of Evidence 413-415 changed centuries of the law which had excluded evidence by the state that the defendant had committed other bad acts and was therefore the sort of person who would be more likely to commit the act charged. The passage of Rules 413-415 opens the door to this type of character evidence in sexual assault and child molestation cases and requires trial judges to assess the probative value of this propensity evidence offered. Yet, neither these rules nor their legislative history offer much guidance in this assessment. This article offers guidance to trial judges and lawyers to assess the probative value of propensity evidence offered under these rules.     

MMPI-2 Findings of Primitive Defenses in Alienating Parents

To test the involvement of primitive defenses in Parental Alienation Syndrome (PAS), we collected 158 MMPI-2s from court ordered custody evaluations from 7 forensic psychology practices; 76 were PAS cases and 82 were custody cases without PAS (controls). We used two MMPI-2 indexes to measure primitive defenses: L + K ? F and (L + Pa + Sc) ? (Hy + Pt). We found that mothers and fathers who were alienators had higher (clinical range) scores indicating primitive defenses such as splitting and projective identification, than control mothers and fathers (normal range scores) in both our indexes. Target parents were mostly similar to the control parents. The results showed strong support for Gardner's definition of PAS.     

Gender stereotypes underlie child custody decisions

Using hypothetical divorce cases we examine the role of gender stereotypes in decisions about child custody. Good mothers received greater custody allocations than did good fathers across a tightly matched pair of vignettes in three culturally distinct samples: Argentina, Brazil, and the United States (Study 1). Two follow-up studies indicated that the warmth dimension of stereotype content partly accounted for the asymmetry in custody awards: The proportion of maternal-primary custody was predicted by the tendency to ascribe warmth-related traits—such as friendliness, generosity, or trustworthiness—to mothers (Study 2) and associate them with female over male nouns (Study 3). We also found that endorsing shared custody mitigated the asymmetry in custody awards documented in our studies. Together, these results highlight the interplay of stereotyped attitudes and egalitarian commitments in the context of judicial decisions about child custody.     

Mothers' and Fathers' Gender-Role Characteristics: The Assignment of Postdivorce Child Care and Custody

Adults (151 female, 130 male; 17.4% African American/Black, 48% Caucasian, 22.8% Latino/Hispanic, 11.7% “other”) assigned postdivorce parental care and custody for four combinations of traditional/nontraditional mothers and fathers described in vignettes of divorcing parents. Parental gender characteristics influenced the assignment of parental care and child custody to divorcing mothers and fathers described in the scenarios and interacted with child gender. Across scenarios, female participants assigned more parental care and custody to mothers than did male participants. When feminine qualities were paired with masculine qualities, greater custody was assigned to the parent described with feminine characteristics (whether a father or mother) than when that parent was described with masculine characteristics. The role of feminine gender characteristics for child custody and care was discussed with regard to maternal primacy and possible changes for father involvement in the aftermath of divorce.     

Swedish Legal Professionals' Opinions on Child and Adult Witness Memory‐reporting Capabilities: Using the Method of Indirect Comparisons

Legal professionals' opinions about the memory abilities of child and adult witnesses are important in the legal process. We surveyed 266 legal professionals (Swedish police, prosecutors, and attorneys) and 33 lay judges about their beliefs about child and adult eyewitnesses' recall and metacognitive abilities. Prior research has usually asked for direct comparisons of children and adults but this may be rare in forensic practice. The respondents completed a story questionnaire (about a 9‐ or 45‐year‐old person witnessing an event), allowing indirect, or researcher‐made, comparisons. In contrast to previous research (direct comparisons), our participants mostly rated children and adults to be on an equal level, but within‐group consensus was low. Also, fairly few differences emerged between the groups' beliefs. Finally, the participants' opinions in our study were less in line with results from eyewitness research, compared with previous research using direct comparisons. Implications for legal and research practice are discussed. Copyright © 2015 John Wiley & Sons, Ltd.     

Getting it wrong about Miranda rights: false beliefs, impaired reasoning, and professional neglect

Television and other media inundate Americans with innumerable yet fragmentary examples of Miranda warnings; however, familiarity born of repeated exposures cannot be equated with accuracy or understanding. The intended purpose of these warnings is to inform and caution rather than to pacify and reassure--a purpose that cannot be realized when most custodial suspects assume that they already know everything the law insists they should be told. Painstakingly negotiated Constitutional safeguards are further imperiled when attorneys, judges, and forensic evaluators are lulled into complacency by the commonly held misconception that everyone understands their Miranda rights. This article elucidates certain false beliefs and misapprehensions regarding Miranda comprehension and identifies widespread neglect of these issues by the professional community. (PsycINFO Database Record (c) 2011 APA, all rights reserved).     

The status of the Rorschach in clinical and forensic practice: an official statement by the Board of Trustees of the Society for Personality Assessment

This statement is intended for psychologists, other mental health professionals, educators, attorneys, judges, and administrators. Its purpose is to present a summary of the issues and evidence concerning the Rorschach. This statement affirms that the Rorschach possesses reliability and validity similar to that of other generally accepted personality assessment instruments, and its responsible use in personality assessment is appropriate and justified.     

Innovative Approaches to Child Custody and Domestic Violence in New Zealand

Summary

In 1995, as part of a major review of domestic violence law, the New Zealand Parliament amended the legislation under which disputes about custody of and access to children are determined by the Court. Specifically, the amendment introduced a rebuttable presumption that a parent who had used violence against a child or against the other parent would not have custody of, or unsupervised access to the child unless the Court could be satisfied that the child would be safe during visitation arrangements. Three years after the implementation of this legislation, it is timely to reflect on the impact of this major domestic violence law reform initiative. Our findings indicate that there are indeed advances. Psychological violence is now clearly being considered when Courts are assessing the issue of children's safety. As well, the delineation of mandatory risk assessment factors has led many judges to see a continuum of power and control tactics as relevant in domestic violence related visitation proceedings; the previous emphasis on physical violence has given way to an analysis which more closely reflects accords with women's and children's realities of the abuse they are exposed to. Some of the old problems continue to exist despite the law changes. There are still recent cases where perpetrators of serious violence are awarded unsupervised access and where their violence continues to be construed as “out of character,” arising because of the perpetrator's “despair” about the breakdown of his relationship. These and other issues are discussed.     

Marxism and Surrogacy

In this article, 1 argue that the liberal framework—its autonomous individuals with equal rights—allows judges to justify enforcing surrogacy contracts. More importantly, even where judges do not enforce surrogacy contracts, the liberal framework conceals gender and class issues which insure that the surrogate will lose custody of her child. I suggest that Marx's analysis of estranged labor can reveal the class and gender issues which the liberal framework conceals.     

Guardianship determinations by judges, attorneys, and guardians

Guardianship is intended to protect incapacitated individuals through the appointment of a surrogate decision maker. Little is known about how judges, attorneys, and professional guardians assess the need for guardianship, to what extent they apply statutory guidelines when making these determinations, and how their decisions compare. Three groups of participants (probate judges, elder law attorneys, and professional guardians) read vignettes portraying older adults that varied in the extent to which the evidence supported the appointment of a guardian. They were asked about the appropriateness of various resolutions. Participants were reluctant to endorse full guardianship even when warranted by the evidence and preferred informal, family-based interventions that do not involve legal action. Professional groups did not always agree on the appropriate resolutions, suggesting that one's professional orientation may play a role in perceptions of older adults.     

Psychological assessment versus psychological testing. Validation from Binet to the school, clinic, and courtroom

Increasingly, psychological assessment is conducted with clients and patients involved in child custody and personal injury litigation. Clinical neuropsychologists are being asked sophisticated questions by attorneys regarding the validity of practitioners' most highly respected tests. Research reviewed here bears on the validity of test-buttressed clinical opinions, including research related to the following psychometric properties of individual test scores: standard errors of measurement, test-retest stability and subtest-to-subtest intercorrelations. The highest and the lowest subtest scores used as indices, respectively, of an individual's premorbid level of cognitive functioning and the degree of current impairment from that presumed earlier level is not justified when used in isolation from the life history and current medical findings. Although many practitioners use information from the wider research, courtroom experience suggests that a number do not; contrariwise, the attempt of Faust and Ziskin (1988a) to undermine the courtroom testimony of every psychologist who serves as an expert witness is also criticized.     

Defense attorneys' concerns about the competence of adolescent defendants

Research indicates that a sizable proportion of adolescent defendants have difficulty understanding and participating in legal proceedings against them, and may be incompetent to stand trial. To examine attorneys' experience in defending adolescents with competence‐related difficulties, 214 juvenile attorneys were surveyed. Findings indicated that attorneys have doubts about the competence of approximately 10% of adolescent defendants, and that they find these cases particularly challenging to defend. Most attorneys appear to recognize that developmental factors may contribute to adolescents' competence‐related difficulties, and believe that the law should accept developmental immaturity as a basis for incompetence findings. In approximately half of the cases in which attorneys had doubts about competence, attorneys did not request a competence evaluation but instead made other efforts to address competence issues, such as by teaching adolescents about legal proceedings and further involving their parents. The implications of these findings are discussed. Copyright © 2010 John Wiley & Sons, Ltd.