REPRINT OF PUBLISHED ARTICLE

The article that follows originally appeared in the Journal of Child Custody: Research, Issues, and Practices

Cite this article as: Martindale, D. A. & Gould, J. W. (2004). The forensic model: Ethics and scientific methodology applied to custody evaluations. Journal of Child Custody: Research, Issues, and Practices, 1:2, 1-22.

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The forensic model:

Ethics and scientific methodology applied to custody evaluations

David A. Martindale

Jonathan W. Gould

ABSTRACT Understanding the relationship between psychological ethics and scientifically informed methodology is critical to a competently crafted child custody advisory report. This paper offers a working definition of the Forensic Model and integrates elements of the 2002 American [2] Psychological Association’s Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2002) with forensic methods and procedures as applied to child custody evaluations.

THE FORENSIC MODEL DEFINED Three years ago, the Honorable Stephen Hjelt, the presiding Administrative Law Judge for the California Office of Administrative Hearings in San Diego, wrote what might best be described as an open letter to psychologists (Hjelt, 2000). Judge Hjelt observed: “[Y]our profession has strong roots as a discipline that has a foundation in the scientific method. However, some of you simply stopped using it” (p. 12). If asked what model they employ, many custody evaluators would seek clarification of the question. In our view, performing custody evaluations without first having selected a model is analogous to constructing a building without blueprints. We believe that evaluations performed for the legal system should be performed in accordance with the forensic model. The concepts that we, here, apply to services performed within the legal arena, have been discussed in earlier works addressing primarily therapeutic endeavors (Beutler, Williams, & Entwistle, 1995; Frank, 1984; Kanfer, 1990; O’Donohue, 1989; Stricker, 1992; and Stricker & Trierweiler, 1995) and have been discussed by Kuehnle (1996), in her in-depth examination of procedures to be employed in assessing allegations of child sexual abuse. As applied to child custody evaluations, the essential components of the forensic model, as conceptualized by us, are as follows: (a) The evaluator’s role, the purpose of the evaluation, and the focus of the evaluation are defined by the court; (b) where possible, the evaluator obtains (at the outset) a list of specific psycholegal issues concerning which the court seeks advisory input; (c) The evaluator conducts all professional activities in accordance with regulations and/or guidelines promulgated by state regulatory boards; (d) the procedures employed by the evaluator are informed by the psychologists’ Ethics Code (American Psychological Association, 2002), the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991), the APA’s Custody Evaluation Guidelines (Committee on Professional Practice and Standards, American Psychological Association, 1994), and similar documents developed by organizations that conceptualize the child custody evaluation as [3] an inherently forensic psychological activity; (e) the selection of assessment instruments is guided by the 1985

Forensic model - page 2 of 20 and 1999 editions of the Standards for Educational and Psychological Testing (American Educational Research Association, American Educational Research Association, American Psychological Association & National Council on Measurement in Education, 1985, 1999) and particular attention is given to the established reliability and validity of instruments under consideration (Heilbrun, 1992, 1995; Otto, Edens, & Barcus, 2000); (f) detailed records of all aspects of the evaluation are created, preserved, and made available in a timely manner to those with the legal authority to inspect or possess them; and (g) all professional activities are performed with a recognition of the investigative nature of the task, an acknowledgment of the limitations inherent in our evaluative procedures, an understanding of the distinction between psychological issues and the specific psycho-legal questions before the court, and an appreciation of the need not to engage in therapeutic endeavors before, during, or after the evaluation. In the preceding paragraph, we have identified eight specific documents that we believe offer excellent guidance to psychologists involved in custody-related work. It is likely that readers will know of other helpful documents. The standards enumerated in the Ethics Code (APA, 2002) are to be viewed as “enforceable rules for conduct as psychologists” (p. 1061). The other documents provide guidelines. In our view, it is inadvisable to emphasize the distinction between standards and guidelines. It is a distinction that is often lost on others. Very soon after reputable organizations disseminate guidelines, prudent practitioners conform their professional behavior to be in accord with those guidelines (even when the direction offered is identified as being aspirational in nature) and, over time, what once were guidelines come to define the standard of care. Marine and Bogie (2002) have observed that “the standard of care is being developed with increasing frequency in the courtroom rather than by the profession” (p. 21). We urge psychologists to conduct themselves as though the professional attitudes and behaviors alluded to in aspirational statements were, instead, obligatory.

ETHICS AND METHODOLOGY Understanding the relationship between psychological ethics and scientifically informed methodology is critical to a competently crafted child custody evaluation. The authors of the Standards for Educational and Psychological Testing (American Educational Research Association, et al., 1999) have observed: “The greater the potential impact on test takers, for good or ill, the greater the need to identify and satisfy the relevant standards.” (p. 112) Extending that obligation further, the greater the potential impact on consumers of psychological services, for good or ill, the greater the need to adhere to established standards; [4] to be responsive to applicable guidelines; and, to endeavor to identify and subsequently utilize the best methodology possible. Methods and procedures outlined here are those that we believe to be the most effective and for which we believe there to be the strongest rationale. Readers are reminded that the involvement of psychologists in the adjudication of custody disputes is a recent development. It will neither surprise us nor cause us dismay if better methods than those

Forensic model - page 3 of 20 we propose here are ultimately developed. We view our education in this field as ongoing and strongly encourage readers to take the same view of theirs. Experienced evaluators may feel that some of the observations offered here are self-evident. It is, nevertheless, our hope that evaluators at all levels of experience will find the practice suggestions offered here to be helpful.

CLARITY AND SPECIFICITY IN ETHICS CODES It is our view that the interests of society, consumers of psychological services, well-intentioned practitioners, and the profession of psychology are best met when our ethical standards are reasonably specific and clearly written. We recognize that no ethics code will ever be able to address all the thorny situations in which mental health practitioners are likely to find themselves and that all ethics codes must afford individual practitioners some leeway. Ethics codes are most useful to all those who are affected by them when a path to be chosen and a path to be avoided can be identified. Practitioners who want to do the right thing but are not entirely clear concerning what practices constitute "the right thing" are offered more effective guidance when ethical standards are articulated with clarity. Put simply: It's easier to do what's expected of you when what's expected of you is clearly stated. The profession is better served when groups (like ethics committees) that are charged with the responsibility of promoting professional competence have unambiguously worded standards to guide them in their deliberations. Presumably, when the rules are clear, what does and what does not constitute a deviation from those rules is also clear. Thus, it is easier to exonerate wrongly accused practitioners and easier to take effective action against practitioners whose actions constitute deviations from the rules. The probability that disciplinary action will be taken against individuals who deserve no punishment and the probability that people whose work discredits the profession will be exonerated is increased when rules are fuzzy and the probability is decreased when rules are clear. Clearer rules also make the educational function of ethics committees easier. The public is better served when standards of practice for service providers in any field are clearly articulated. The public has a better understanding of what is to be expected and the public has more effective recourse when providers of a service (psychological or some other type) deviate from the standards. [5] The ethical standards by which we are judged are those that we ourselves have developed. Our society has become increasingly litigious and it is not surprising that psychologists involved in revising an ethics code may contemplate how the ethical standards might be used to their disadvantage in litigation. In a recent commentary on the new Ethics Code, Barnett (2003) offered several observations that we found to be troubling. Barnett asserted: “A main goal of the ECTF [(Ethics Code Task Force)] was to create a revised Ethics Code that provides better protection for psychologists” (p. 9). He further asserted: “The intention is also that the Ethics Code not supercede [sic.] each psychologist’s professional judgement [sic.] or create

Forensic model - page 4 of 20 a rigid set of rules that must be followed to the letter by all for fear of adverse consequences” (p. 10). Finally, Barnett opined that by clearly stating that the Standards “were not intended by APA to be applied by others when evaluating psychologists’ actions, it is hoped that this statement will help reduce the chances that other individuals and bodies will misuse the Ethics Code against psychologists” (p. 9). In our view, no task force at work on an ethics code for one of the helping professions should set as “a main goal” the provision of “better protection” for members of the profession. That is not, in our opinion, the purpose of ethics codes. If psychologists, as a group, could be relied upon to consistently demonstrate good judgment, the profession could dispense with an ethics code and, in its place, periodically publish a three-word Reminder to the Profession: “Use good judgment.” Ethics codes will always be necessary but not sufficient to guide professional behavior. Though there can be no substitute for good judgment, ethics codes should, in our view, supersede each psychologist’s independent judgment. “[A] rigid set of rules that must be followed to the letter” would not serve psychologists or those who utilize our services; however, our profession should be able to develop a well-articulated, unambiguous set of ethical standards in which professional behaviors are described as operationally as possible. Any professional ethics code that is substantive – that is worth reading and useful as a reference on an ongoing basis – may occasionally be held aloft and pointed to by those who believe that a practitioner has failed to conform his professional behavior to the articulated standards. Psychologists cannot prevent our ethics code from being used as evidence of sub-standard practice by those who choose to ignore it.

THE 2002 PSYCHOLOGISTS’ ETHICS CODE: NEW AND IMPROVED, OR JUST NEW?

Whether the observations offered by Barnett (2003) are or are not factually correct, it is our position that the new Ethics Code fails to meet the needs of psychologists and those who rely upon us to behave ethically. Specifically, it had been our hope, as the Ethics Code was being developed, that our association, [6] through its Ethics Code, would strengthen its stand on role boundaries and on the importance of creating and preserving reasonably detailed records – particularly in forensic work. With regard to the role boundaries issue, we are aware that some (Lazarus & Zur, 2002) have opined that the APA has already gone too far in expressing disapproval of multiple relationships. The concerns communicated by Lazarus and Zur relate to matters of therapeutic effectiveness. Our focus is the impact upon forensic endeavors of multiple relationships. In our view, the argument has been persuasively made (Clark, 1990; Greenberg & Shuman, 1997) that there is, in the words of Greenberg and Shuman, an Irreconcilable conflict between therapeutic and forensic roles.

Forensic model - page 5 of 20 With regard to the matter of records and the related issue of receptivity to scrutiny, the 1992 Ethics Code (in Standard 1.23: Documentation of Professional and Scientific Work) reminded psychologists that when they “have reason to believe that records of their professional services will be used in legal proceedings . . . , they have a responsibility to create and maintain documentation in the kind of detail and quality that would be consistent with reasonable scrutiny in an adjudicative forum.” No similar admonition appears in the 2002 Ethics Code and we believe the elimination of this standard to have been a serious error. Within the context of forensic work, due process becomes unobtainable if a forensic psychologist’s records are incomplete, inaccurate, illegible, or inaccessible. With specific reference to custody litigation, those who are displeased with the findings reported or opinions offered by evaluators have an unequivocal right to scrutinize the manner in which the evaluation was conducted, to verify the accuracy of information relied upon, and to question the manner in which opinions were formulated. Without records of reasonable “detail and quality”, the rights of the dissatisfied party are violated.

A SEQUENTIAL EXAMINATION OF ETHICAL ISSUES AND METHODOLOGY

The ethical issues that arise in custody work are many. We endeavor, here, to examine the applicable issues in the sequence in which they are likely to emerge. Preparation, part 1: Knowing Enough Psychology Prior to offering to perform evaluations of comparative custodial suitability, psychologists should attend workshops in which custody related issues are specifically addressed. Psychologists in clinical practice who wish to offer their services as custody evaluators must recognize that work in this area is, by definition, forensic work. They must also recognize that many of the procedures with which they have grown comfortable will have to be modified to meet the [7] needs of the judicial system. Forensic interviews are unlike interviews conducted for treatment purposes. Tests that are acceptable in health care settings may not meet the evidentiary demands associated with forensic work. Psychologists interested in custody work should be familiar with: forensic interviewing of adults; forensic use of psychological tests and measures; ethics as specifically applied to forensic contexts; forensic risk management; theory and assessment of domestic violence; theory and assessment of child alienation; theory and assessment of high conflict post divorce families; theory and assessment of child sexual abuse; and, distinctions between forensic and health-related evaluations. We strongly recommend that before taking a custody case, psychologists interested in custody work read major texts on custody matters. We strongly advise newcomers to obtain individualized, paid supervision. Informal guidance offered by friends or supervision offered in a group context are not a good substitute for supervision provided by experts in the field. Establishing a professional relationship with a supervisor before taking on one’s first case is strongly advised. A supervisor can lead a newcomer to the important books and articles and, perhaps most importantly, many of the potential pit-falls can be avoided by having good advice available as the initial phone calls are returned.

Forensic model - page 6 of 20 Last, but certainly not least, knowing enough psychology includes being intimately familiar with the Ethics Code (American Psychological Association, 2002), the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991), the APA’s custody evaluation guidelines (Committee on Professional Practice and Standards, American Psychological Association, 1994), the Standards for Educational and Psychological Testing (American Educational Research Association, American Psychological Association & National Council on Measurement in Education, 1985, 1999), and several texts or articles in which the forensic use of psychological tests and measures is discussed and issues of reliability and validity are explored (for example, Heilbrun, 1992, 1999; Otto, et al., 2000). Some may question our reference to the 1985 edition of the Standards for Educational and Psychological Testing (American Educational Research Association, et al., 1985), in light of the fact that the enumerated standards have been superseded by those that appear in the 1999 edition of the Standards (American Educational Research Association, et al., 1999). The selection of assessment instruments that will meet the evidentiary demands of forensic work seems to us to be of great importance. Data collected by Quinnell and Bow (2001) led them to conclude that “projective instruments, which generally lack adequate psychometric properties, continue to be widely used despite the absence of empirical support.” (p. 500) The Quinnell and Bow data [8] suggest that many of the psychologists performing evaluations of comparative custodial suitability are selecting instruments that are not reliable (and, hence, not valid). The style in which the 1999 edition of the Standards has been written differs from the style in which the 1985 edition was written. In particular, standards appearing in the 1985 edition are articulated with greater specificity and, if carefully attended to, will offer more effective direction to psychologists wishing to select more suitable instruments. The arrival of a new edition does not diminish the usefulness of the guidance contained in the 1985 edition. The utilization by some psychologists of inappropriate assessment methods has been discussed by numerous authors (for example: Brodzinsky, 1993; Heilbrun, 1992, 1995; Martindale, 2001; Otto, et al., 2000). We must be mindful of the fact that the vast majority of psychologists conducting evaluations of comparative custodial fitness initially trained as clinicians. Some have brought to their forensic work psychodiagnostic assessment instruments that they found useful in health care settings. Phenomena such as selective perception, selective recall, and confirmatory bias can lead even trained practitioners to endorse the use of methods the effectiveness of which has never been supported in systematically conducted research. In 1974, Pirsig astutely observed: “The real purpose of [the] scientific method is to make sure Nature hasn’t misled you into thinking you know something that you actually don’t” (p. 94) Preparation part 2: Knowing Enough Law Psychologists who know little if any law may make errors that will cause them to be removed from the case; may focus on issues that – by case law or by statute – are to be ignored; may neglect issues that the law requires them to address; may offer recommendations that conflict with law; may violate the civil rights of litigants; or, may inadvertently display their ignorance of the law in a way that will cause considerable embarrassment.

Forensic model - page 7 of 20 Familiarity with the pertinent statutes and case law governing custody matters in the states in which they intend to practice is critical. The concept of best interests of the child is one with which most psychologists have some familiarity. An alarmingly high number of custody evaluators, however, are unaware of the manner in which that concept is translated by the courts to which they submit their advisory reports. In some states, the criteria to be considered are clearly specified in statutes. In some states, no statutorilly defined criteria exist, but guidance is offered in the form of case law. In some states, the state’s licensing authority has outlined standards or factors to be considered by psychologists performing custody evaluations. In some states, no guidance is offered at all and evaluators must decide for themselves how they will formulate their opinions concerning what parenting plan is most likely to serve the child’s best interests. Law changes slowly, often begrudgingly, and frequently in response to external pressure. Advocates for children might remind us that at one time children were treated as property. We call attention to this because the dynamics of a particular case may lead a psychologist to conclude that the arrangement most likely to be in the best psychological interests of the child is an arrangement that is inconsistent with current law. In a situation such as this, the evaluator might consider communicating her awareness of the legal standard(s), acknowledging the apparent inconsistency between the recommended course of action and the legal standard(s), [9] and cogently articulating the bases for viewing the recommended course of action as being superior to the legally preferred alternatives. Getting off to a good start Introductory Letters In some jurisdictions, court orders appointing evaluators routinely contain a prohibition against ex parte communication between the evaluator and the attorneys representing the parties. We believe that even where such communication is not specifically prohibited, it is, nevertheless, inadvisable. We recommend making one’s initial contact with the attorneys by means of identical introductory letters in which brief information is provided outlining the documents that the evaluator would like the attorneys to supply and indicating how the submission of additional documents should be handled. Evaluators should enclose with this letter a copy of the document that outlines the evaluator’s policies, procedures, and fees, so that the attorneys can review the document and discuss it with their respective clients. The initial contact with the litigants should also be by letter, in our view. The document that outlines the evaluator’s policies, procedures, and fees should be sent to the parties, accompanied by the suggestion that they review the document with their attorneys before signing it and returning it. We believe there to be significant advantages to having an evaluator’s policies, procedures, and fees presented in this particular manner. A document received by mail can be reviewed in an unhurried manner. A review conducted with one’s attorney affords the litigant an opportunity to obtain input from someone who is an ally, who is trained in law, and who is able to compare the outlined policies, procedures, and fees with those of other evaluators with whom the attorney has interacted. In our view, requesting that litigants sign the evaluator’s policies and procedures document during the initial meeting with the evaluator and in the evaluator’s presence is ill-advised. It is reasonable to expect that litigants will feel rushed and pressured by the evaluator’s presence. The validity of an “Agreement” signed under such circumstances is questionable.

Forensic model - page 8 of 20 Statements of Understanding Not infrequently, evaluators who take great care to provide appropriate information to the litigants become inexplicably careless in their dealings with others (such as collateral sources of information or third parties who are evaluated). Treating people fairly includes telling them what they need to know in order to make informed choices. Our obligation to take reasonable steps to avoid harming those with whom we professionally interact is not limited [10] to those whom we see in our offices nor is it limited to those who are the payers of our fees. [See: Lind, et al., 1990, for a discussion of the perceived fairness issue.] In dealing with children, we believe that it is useful to inquire concerning what the child already knows. There are, in our view, several advantages to this procedure. In explaining what they already know about the evaluation, children often unintentionally provide information suggesting that they have been coached. Such information is, of course, helpful to the evaluator. By ascertaining what information a child already has, evaluators can correct misunderstandings and not spend time discussing matters that the child is already familiar with. Who’s the Client? The obligations of forensic psychologists might be better understood if we were to jettison the client model. Most evaluators are well aware that the litigants are not viewed as the clients even though it is often the litigants who are directed to pay the evaluator’s fees. In the effort to force square pegs into round holes, some evaluators will assert that the court is the client; others will assert that the child is the client. Either of these conceptualizations can cloud an evaluator’s decision-making when contemplating his obligations. Woody (2000, p. 95) has advocated conceptualizing the client as “an amorphous aggregate”. Writers who advocate discarding an existing paradigm face the task of articulating their views in the absence of an agreed-upon vocabulary. In our view, it is prudent for psychologists performing custody evaluations to operate as though they were employees of the court system, despite the fact that remuneration rarely comes from public funds. Conceptualizing oneself as an extension of the court contributes to a mind-set in which evaluators recognize a responsibility to consumers of their services, participants in the evaluative process, and others likely to be affected by the evaluators’ work. In our view, such a conceptualization is congruent with Principle A of our Ethics Code (APA, 2002), which states in part: “In their professional actions, psychologists seek to safeguard the welfare and rights of those with whom they interact professionally and other affected persons. . . .” (p. 1062).

Doing the Best You Can. Ignorance of the limitations inherent in evaluating comparative custodial suitability may contribute to sound sleep, but it does not contribute to better evaluations. It is essential that we recognize the many threats to objectivity and take reasonable steps to address them (Arkes, 1981; Borum, Otto, & Golding, 1993; Garb, 1994). Doing the best we

Forensic model - page 9 of 20 can requires that evaluators be familiar with the concept of mental set (Leeper, 1935), the dynamics of expectancy effects (Rosenthal, 1966, 1967, 1968), the principles of sampling, and [11] the research on our ability (or lack thereof) to detect deception through interviews (DePaulo, Charlton, Cooper, Lindsay, & Muhlenbruck, 1997; Ekman & O’Sullivan, 1991; Feeley & Young, 1998; and Frank & Feeley, 2003.) Address the Question: No More; No Less Many psychologists have been intermittently reinforced for answering questions other than those that were asked and for articulately communicating opinions that were not supported by facts. An unfortunate reality is that such intermittent reinforcement may continue after one begins filing reports and offering testimony in custody matters. We, never-the-less, strongly discourage providing information not pertinent to the issues before the court, offering personal opinions in the guise of professional opinions, or neglecting (either by carelessness or by design) to provide information needed by the court. In some jurisdictions, it is customary for court orders to enumerate specific issues to be addressed by an evaluator. Obviously, when this has been done, a prudent evaluator reviews the court’s order periodically during the course of the evaluation. Such periodic reviews will ensure that the information needed by the court in order to address the specified issues is being gathered. In some jurisdictions, no focus is provided to the evaluator by the court. When no specific issues have been alluded to in the court’s order, evaluators should, in the initial stages of the evaluation, determine what each party views as the primary issues in the dispute. When evaluations have been completed and reports are being prepared, evaluators should take care to articulate what data were gathered, how those data bear upon the criteria that were utilized, and how each of the criteria relates to the best interests standard. Evaluators should resist the temptation to opine on matters concerning which they have been unable to gather sufficient information, decline to opine on matters whose pertinence to the best interests standard cannot be established, and exercise great care not to mingle personal opinions with professional opinions. Psychological experts draw upon published knowledge from the field of psychology in formulating their opinions. If the accumulated knowledge from our field has not been utilized in the formulation of an opinion, it is a personal opinion, irrespective of the credentials of the person expressing it. The Virtues of Not Being Helpful Forensic psychology is a relatively new area of specialization and the vast majority of the psychologists who have taken an interest in performing custody evaluations were initially trained as clinicians. Some of the most serious problems that forensic psychologists create for themselves stem from an inability or unwillingness to control the impulse to think like and act like “helpers” when they are contractually obligated to function as examiners. One cannot, for example, evaluate parenting skills while simultaneously offering advice to [12] people concerning how best to improve upon their parenting skills. Evaluators who intervene, however obvious the need for someone’s intervention may be, then indirectly become evaluators of the success or failure of their own interventions.

Forensic model - page 10 of 20 In the course of obtaining education and training in forensic psychology, some psychologists digest a significant amount of family law and some become quite confident that their knowledge of the law is sufficient to enable them to be helpful to litigants who may be receiving inadequate or misguided advice from their attorneys or to litigants who may have elected to represent themselves. Some psychologists have obtained degrees in law. No matter how much law psychologists may know, offering legal advice compromises one’s ability to conduct an impartial evaluation. The task that was accepted by the forensic psychologist was the evaluative task. Performing unassigned tasks that diminish one’s effectiveness at the assigned task is imprudent and increases the risk of litigant complaints. Interview Techniques There are aspects of custody work concerning which no consensus has been achieved. We believe there to be agreement within the profession concerning the essential objectives of our interviews with parents and with children, but there are disagreements concerning interviewing methods. In interviews with parents, questions should be posed that will enable evaluators to assess what are generally referred to as “parenting skills”. These include the assignment to children of age-appropriate chores; the use of appropriate methods for encouraging admirable behavior; and, the ability to maintain effective parent-child communication both in good times and in bad. Questions posed to a child should provide an opportunity to obtain the child’s perspective on such issues as parental consistency, parental discipline, parental behaviors that encourage (or discourage) the children’s efforts to achieve age-appropriate independence, etc. Among skilled evaluators there are differences of opinion concerning the degree to which interviews either with parents or with children should be structured. However strongly a psychologist may feel concerning the advantages of a structured approach, it is essential that psychologists not lose sight of the skills for which they are being paid. It can reasonably be expected that psychologists will formulate appropriate follow-up questions when it is likely that doing so will elicit relevant information. Observational Techniques Few independent practitioners have either the funds or the available space to construct adjoining rooms separated by one-way viewing screens, enabling them to remain unseen as they observe parent-child interactions. It is, however, the clear responsibility of evaluators to be aware of the fact that in any [13] situation in which a human observer is in the same physical environment as the person or people being observed, the risk is always present that the observer will influence the very thing that s/he is endeavoring to observe. The evaluative task is both simple and clear. The task is to function as an observer of each parent’s parenting behaviors, to record those behaviors, to formulate opinions concerning those behaviors, and to report both the observations and the subsequently-formulated opinions to the court. During observational sessions, evaluator involvement should be minimal and except under the most extraordinary circumstances, no comments should be made concerning the behaviors being observed.

Forensic model - page 11 of 20 Record-keeping As mentioned earlier, Standard 1.23 of the 1992 Ethics Code (APA, 1992) reminded psychologists of their record-keeping obligations when performing services related to legal proceedings. Notwithstanding its omission from the 2002 Ethics Code, it remains our view that the responsibility alluded to in Standard 1.23 is a reasonable one for psychologists to accept. The perspective provided in the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) is strongly worded and unambiguous. It is stated in section VI.B. that ‘[f]orensic psychologists have an obligation to document and be prepared to make available, subject to court order or the rules of evidence, all data that form the basis for their evidence or services. The standard to be applied to such documentation or recording anticipates [emphasis in original] that the detail and quality of such documentation will be subject to reasonable judicial scrutiny; [sic.] this standard is higher than the normative standard for general clinical practice. When forensic psychologists conduct an examination or engage in the treatment of a party to a legal proceeding, with foreknowledge that their professional services will be used in an adjudicative forum, they incur a special responsibility to provide the best documentation possible under the circumstances” (p. 661). Reference in the Specialty Guidelines to “a special responsibility to provide the best documentation possible under the circumstances” (Committee on Ethical Guidelines for Forensic Psychologists, 1991, p. 661) fuels debate concerning the obligation (or lack thereof) to audio-tape or video-tape one’s sessions. Though we do not believe that tape recording (in either form) is expected of psychologists, we believe that the advantages of creating and maintaining such records outweigh the disadvantages. In our view, any record, in any form, once having been created must be preserved. Though, to some, this might seem self-evident, it is not a perspective shared by all. Shortly after the release of our new Ethics Code, the American Psychological Association published a text that was described on its dustcover as encouraging “adherence to the highest ethical standards”. In that text, the authors have opined that the erasure of videotapes made during interviews “prevents the opposing counsel from using [13] contemporaneous material out of context during a later cross-examination at deposition or trial” (Benajmin & Gollan, 2003, p. 35). Our discomfort with the procedure advocated by Benjamin and Gollan is shared by James Wulach, who was the chair of the Committee on Professional Practice and Standards (COPPS) at the time APA’s Record Keeping Guidelines (COPPS, 1993) were being developed. Wulach has expressed the view that “[c]learly, the videotape of a session is a vital record and, once taken, should not be destroyed. Even if agreed to by the parties, destruction of any portion of the record creates the risk of sanctions by ethics boards, regulatory agencies, or the legal system.” (Personal communication, 2/26/03, quoted with permission.)

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BUMPS IN THE ROAD

But It’s Not In The Code. Not all professional behaviors that demonstrate negligence, incompetence, or unethical practice can be enumerated in statutes that define professional obligations, in a profession’s ethics code, or in any other document. Some professional behaviors are too rarely encountered to warrant inclusion in such documents. On the other hand, in the eyes of those who develop descriptions of appropriate professional behavior, the obligation to take certain professional actions may seem so self-evident that discussion seems superfluous. Such is the case, in our view, with regard to the obligation to endeavor to resolve discrepancies in data. Not infrequently, evaluators will find that data from one source lend support to one hypothesis while data from another source lend support to an entirely different hypothesis. On occasion, obtaining the additional data that might provide clarification is not feasible. When it can logically be presumed that obtaining clarifying information will require no more than the expenditure of a reasonable amount of additional time, failure to seek the additional data represents a failure to be thorough. Investigating Allegations We discourage the use of an evaluative model that actively promotes the creation by each litigant of a list of allegations concerning the other parent. Such a procedure encourages each parent to focus on the negative characteristics of the other parent and, for that reason (even if for no other reason) we believe this to be a method that complicates post-divorce adjustment. It is likely, however, that in most custody disputes, allegations of one type or another will spontaneously be registered. The Specialty Guidelines, section VI.C. remind us that “the forensic psychologist maintains professional integrity by examining the issue at hand from all reasonable perspectives, actively seeking information that will differentially test plausible rival hypotheses.” Section VI.F. [15] adds: “Where circumstances reasonably permit, forensic psychologists seek to obtain independent and personal verification of data relied upon. . . .” Data collected in recent studies (Ackerman & Ackerman, 1997; Bow & Quinnell, 2001) suggest that approximately one-quarter of the evaluative time expended by those responding to a survey was devoted to information verification (obtaining information from documents, from disinterested collateral sources, and from other non-parties). Newcomers to forensic work are strongly encouraged to reflect upon the two words “actively seeking”. Custody evaluators cannot be passive recipients of offered information. They must know what questions to pose of parents, children, and collateral sources; must know what methods are likely to yield confirming or disconfirming data; and, must maintain an investigative mind-set.

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CHOOSING ASSESSMENT INSTRUMENTS The question to be asked (and correctly answered) is: “Do those instruments you have elected to utilize reliably measure functional abilities that bear directly upon the matter before the court?” LaFortune and Carpenter (1998, p. 222) list the seven most frequently used assessment instruments that “focus on parenting skill and the parent-child relationship” and that are “touted by their authors as helpful in clinical determinations of parental fitness.” LaFortune and Carpenter declare (p. 222): ‘[T]he validity of these measures is unestablished at best and seriously flawed at worst.” Though the hope is expressed that improvements in these instruments may make them useful in the future, the authors conclude that their use at present “cannot be recommended” (p. 222). In no statistics text with which we are familiar is frequency-of-use by surveyed mental health professionals listed as an acceptable measure of either the reliability or the validity of an assessment instrument. It is reasonably expected that evaluators will obtain, review, and critically examine the documentation concerning assessment instruments under consideration and that they will select only those whose reliability and validity is acceptable when used for the purpose intended.

PRE-TRIAL ISSUES

Preparing to Assist the Court The dilemma. In order to be of maximum assistance to the trier of fact, evaluators must be afforded the opportunity to relate all pertinent information and [16] to articulate, in an organized fashion, the manner in which their opinions have been formulated. In particular, the court should be told what information was gathered, what procedures were utilized in gathering it, what criteria were employed in assessing comparative custodial fitness, and how the information gathered pertains to those criteria. The most effective may to accomplish this goal is to inform the attorney who will be conducting the direct examination of the questions that must be posed. Preparing with attorneys: The advantages. The advantages of having one’s direct examination conducted by an attorney who knows what questions need to be asked are apparent. Shapiro (1991, p. 206) has opined that preparation by the expert of the attorney who will be conducting the direct examination is appropriate. Preparing with attorneys: The disadvantages. Grisso (1990, p. 37) has observed that we “can be seduced by collaborative relationships having a subtle and almost irresistible pull toward advocacy. Often this will be at the expense of the objective attitude for which [we] must strive, as required by [our] professional ethical principles.” LaFortune and Carpenter (1998), reporting on the results of a survey of 165 licensed mental health professionals performing custody evaluations, concluded that impartiality was considered the most important of thirteen “characteristics important in a child custody expert”. Section VII.D. of the Specialty Guidelines reminds us that we “have an obligation to all parties to a legal proceeding to present [our] findings, conclusions, evidence, or other professional products in a fair manner.” It is not hard to imagine how meetings with attorneys can produce the “pull toward advocacy” to which Grisso has referred.

Forensic model - page 14 of 20 A proposed solution. The advantages of an orderly presentation are clear. So, too, are the advantages of preserving both actual and perceived impartiality. In examining the balance of advantages and disadvantages of meetings with attorneys, we have concluded that the risk of a perceived “collaborative relationship” and the resulting risk that the evaluator will be viewed as an advocate for one of the parties makes pre-trial preparation with an attorney inadvisable. An orderly direct examination can be ensured by providing a script to the attorney who will be conducting the direct examination and providing copies to the opposing attorney and to the attorney for the children. Providing the script instead of meeting to prepare removes the risk that the expert will be viewed as an advocate for the favored parent. Having the script may enable the opposing attorney to prepare more effectively for cross-examination; however, a skilled evaluator whose assessment has been thorough should have nothing to fear from an informed cross-examination.

[17] THE BIG DAY

The Virtues Of Being Helpful Where issues of pre-trial preparation and trial-related professional behavior are concerned, one is likely to encounter conflicting advice. We advise evaluators to bring the entire case file, including items considered but not utilized by evaluators in formulating their opinions. If a litigant presents an evaluator with a document, it can reasonably be inferred that the litigant believes the document to be pertinent and believes that the evaluator should consider its contents in formulating an opinion. If the evaluator, upon reviewing the document, decides that its contents are not pertinent, that decision – like any other that might affect the opinions offered by the evaluator – may be subject to examination. In our view, a cross-examining attorney is entitled to inquire concerning the bases for decisions not to consider certain information and is similarly entitled to inspect the document (in order to see if notations of any kind have been made on it, etc.). Most states either utilize the Federal Rules of Evidence or have crafted rules of evidence that are similar. Opportunities to offer our expertise in court should be viewed as a privilege and when such opportunities arise, it is FRE #702 (or a state equivalent) that makes it possible. FRE # 702 articulates what has frequently been referred to as “the helpfulness standard”. Experts wishing to be helpful do not confine their information-giving to that which the law requires of them. The law (FRE # 705 or its state equivalent) requires that we be prepared to articulate the bases for opinions expressed if called upon to do so during cross-examination. Shuman and Greenberg (2003) have opined that “[a] reputation for independence benefits all forensic practitioners, casting their testimony in a more persuasive framework. . .” (p. 224). Golding, Chair of the committee that developed the

Forensic model - page 15 of 20 Specialty Guidelines, has opined that “[t]he basis for the opinion and any significant limitations ought to be up front. That was the intention of the SGFP” (personal communication, 11/6/03, quoted with permission). In several sections of the Specialty Guidelines (most notably, VII. A., E., and F.), the ideas of voluntary disclosure and contributing to understanding are promoted. When a testifying expert initially discloses only those data that are supportive of his/her opinions, and acknowledges the existence of non-supportive data only in response to persistent cross-examination, immediate damage is done to the expert’s credibility and long-term damage is done to the public perception of professional psychology. Use of a script during direct examination increases the probability that a balanced and accurate presentation will be made by the testifying expert. [18] Declining to Opine When evaluators have done their jobs well, the opinions formulated prior to entering the courtroom were based upon sufficient information, were pertinent to the best interests standard, and derived support from published knowledge in the field of psychology. Psychologists who have been testifying quite effectively and persuasively have been known to self-destruct when asked to opine on matters concerning which they have insufficient information, the pertinence of which is dubious, or that invite the inadvertent blending of personal opinions with professional opinions. In an apparent desire to be helpful, psychologists have opined on matters concerning which we have no specialized knowledge. When in doubt, decline to opine.

ETHICAL DILEMMAS

Reasonable Minds Will Disagree, So Document Your Reasoning.

Most psychologists have had enough exposure to medical settings to be aware of the adage that if it’s not in the chart, it didn’t happen. Many are surprised to learn that the adage applies not only to behavior (actions taken; words spoken) but, in some contexts, to thought processes as well. The best evidence that a thorny issue has been thought through is a written record of one’s reasoning. When a dilemma occurs we recommend that psychologists take the following steps: (a) identify it in your notes; (b) seek consultation and document having done so; (c) seek information, if available, from applicable material appearing in the various documents that guide us in our work (the Ethics Code, the Specialty Guidelines, etc.) and document having done so; (d) seek information, if available, from applicable material appearing in professional journals and document having done so; (e) seek information from the materials retained by you following attendance at continuing education workshops; (f) record the steps taken to resolve the dilemma; (g) articulate, in your notes, the manner in which the final decision was made. When faced with an ethical dilemma, consider using, and documenting your use of, a decision-making process such as that which follows. (a) Briefly describe the ethical dilemma and list the various issues (if there is more than one); (b) identify all those who are likely to

Forensic model - page 16 of 20 be affected by the decision; (c) specify what consideration is owed to each and the basis for it; (d) list the ethical standards and/or practice guidelines that appear to be applicable; (e) for each issue, outline alternative actions, list the reasonably anticipated consequences and benefits of each action, and list any published research that sheds light on the anticipated consequences and benefits; (f) identify the smallest change in circumstances that would cause you to choose a different action from the one tentatively chosen and identify what the different action would [19] be; and, finally, (g) identify what action(s) must be taken in the event that there are unanticipated consequences and/or in the event that negative consequences that were considered are more serious than was anticipated. The foregoing decision-making process has been adapted from one originally proposed by Keith-Spiegel and Koocher (1985).

ETHICS AND YOUR OTHER JOB

After having established themselves as evaluators, psychologists will often be asked to review work performed by other evaluators. It is not uncommon for psychologists who have been scrupulously ethical as evaluators to inadvertently become less attentive to ethical issues as they become involved in the task of functioning as a consultant to an attorney. The ethical obligations of an impartial examiner are clear to almost all who function in that role. The ethical obligations of a consultant to an advocate for one side seem less clear to many. Though the tasks are quite different, very few of the ethical obligations are any different. The obligation to report what we believe to be unethical behavior by others “does not apply when . . . psychologists have been retained to review the work of another psychologist whose professional conduct is in question.” (Standard 1.05, p. 1063). When functioning as consultants to attorneys, psychologists must respect the litigation strategies of those who have retained them. Calling attention to perceived ethical infractions may undermine attorneys’ trial plans. The responsibility to those who have retained us as consultants does not, however, alter “our essential role as expert to the court” nor our obligation to “assist the trier of fact to understand the evidence. . . .” (from VII. F. of the Specialty Guidelines). In the section of the Specialty Guidelines that addresses public and professional communications (section VII) one finds references to our obligation to “promote understanding and avoid deception” (subsection A) and to “correct misuse or misrepresentation of [our] products, evidence, and testimony” (A.1.); to our “special responsibility for fairness and accuracy” (subsection B); and, to our responsibility to avoid either active or passive involvement in “partisan distortion or misrepresentation” (subsection D). In our view, our effectiveness as experts is increased when our credibility has been established; that establishing credibility is linked to openness; and, that openness suggests bringing one’s entire file when making a court appearance. There are exceptions to general rules. When functioning as a consultant to an attorney, portions of a psychologist’s file may be protected by attorney work product privilege and the retaining attorney may have views that differ from ours.

Forensic model - page 17 of 20

[20] CONCLUSION In this article, we have described a way for child custody evaluators to understand the relationship between psychological ethics and scientifically informed methodology. We have stressed that psychologists who offer to assist courts in adjudicating disputes concerning the custodial placement of children should set goals for themselves that go beyond the standard of care criterion. We have argued that the greater the potential effect upon consumers of psychological services, for good or ill, the greater the need for psychologists to adhere to established standards; to be responsive to applicable guidelines; and, to endeavor to identify and subsequently utilize the best methodology possible. We have offered an integration of the new APA Ethics Code with current forensic methods and procedures. Although we cite some concerns we have about the new Ethics Code, we also acknowledge the importance of understanding how ethics and methodology are intimately related. We have organized what we view as the ethical issues to be considered by forensic mental health practitioners as they pertain to each aspect of a custody evaluation, beginning with the initial referral and concluding with the offering of testimony in court. It is our hope that by integrating ethics and methodology around the steps taken in the evaluation process, readers will develop a clearer understanding of how different ethical principles need to be considered at different stages of forensic investigation. References: Ackerman, M. J. & Ackerman, M. C. (1997). Custody evaluation practices: A survey of experienced professionals (revisited). Professional Psychology: Research and Practice, 28, 137-145. American Educational Research Association, American Psychological Association & National Council on Measurement in Education (1985). Standards for educational and psychological testing. Washington, DC: American Psychological Association. American Educational Research Association, American Psychological Association & National Council on Measurement in Education (1999). Standards for educational and psychological testing. Washington, DC: American Psychological Association. American Psychological Association (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060-1073. Arkes, H. R. (1981). Impediments to accurate clinical judgment and possible ways to minimize their impact. Journal of Consulting and Clinical Psychology, 49, 323-330. Barnett, J. E. (2003). APA’s revised ethics code: Implications for professional practice. The Register Report, 29/Spring, 9-11.

Forensic model - page 18 of 20 Benjamin, G. A. H. & Gollan, J. K. (2003). Family evaluation in custody litigation: Reducing risks of ethical infractions and malpractice. Washington, DC: American Psychological Association. Beutler, L. E., Williams, R. E., & Entwistle, S. R. (1995). Bridging scientist and practitioner perspectives in clinical psychology. American Psychologist, 50(12) 984-994. Borum, R., Otto, R. K., & Golding, S. (1993). Improving clinical judgment and decision making in forensic evaluation. Journal of Psychiatry and Law, 21, 35-76. Bow, J. N. & Quinnell, F. A. (2001). Psychologists’ current practices and procedures in child custody evaluations: Five years after American Psychological Association Guidelines. Professional Psychology: Research and Practice, 32, 261-268. Committee on Ethical Guidelines for Forensic Psychologists (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15:6, 655 - 665. Committee on Professional Practice and Standards, American Psychological Association (1993). Record keeping guidelines. Washington, DC: Author. Committee on Professional Practice and Standards, American Psychological Association (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49, 677-680. DePaulo, B. M., Charlton, K., Cooper, H., Lindsay, J. J., & Muhlenbruck, L. (1997). The accuracy-confidence correlation in the detection of deception. Personality and Social Psychology Review, 1, 346-357. Ekman, P. & O’Sullivan, M. (1991). Who can catch a liar? American Psychologist, 46, 913-920. Feeley, T. H. & Young, M. J. (1998). Humans as lie detectors: Some more second thoughts. Communication Quarterly, 46:2, 109-126. Frank, M. G. & Feeley, T. H. (2003). To catch a liar: Challenges for research in lie detection training. Journal of Applied Communication Research, 21:3, 58-75. Frank, G. (1984). The Boulder Model: History, rationale, and critique. Professional Psychology - Research & Practice, 15(3) 417-435. Garb, H. N. (1994). Cognitive heuristics and biases in personality assessment. In L. Heath, R. S. Tindale, J. Edwards, E. Posavac, F. Bryant, E. Henderson, Y. Suarez-Balcazar, & J Myers (Eds.), Applications of heuristics and biases to social issues (pp. 73-90). NY: Plenum. Grisso, T. (1990). Evolving guidelines for divorce/custody evaluations. Family and Conciliation Courts Reveiw, 28:1, 35-41.

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