The Court-Involved Therapist: Ethical Dilemmas and Pitfalls

Let’s look at APA’s Guidelines for Child Custody Evaluations:

Child Custody Evaluations

First, the issue of performing child custody evluations with current or prior psychotherapy clients. This is multiple role/relationship, which is a conflict of interest and an ethical violation:

What is an evaluation adequate to make a recommendation regarding custody and/or parenting time?
Lets look at APA’s Guidelines for Child Custody Evaluations in Family Law Proceedings

1. The purpose of the evaluation is to assist the court in determining the psychological best interests of the child. All 50 states mandate that the child’s best interests are the primary consideration in adjudicating custody disputes

Did Dr. Z truly and adequately assess the psychological best interests of the children?

Michigan, for example has defined the Best Interest of the Child (Children) as follows (Most states have similar laws):

Ultimately, the Court decides theses factors.

But in my experience having performed several hundred child custody evaluations, the Court almost always wants an expert making custody recommendations to address these factors in an objective, neutral and thorough fashion (see below).

To assess all of these factors, considerable time needs be spent by a neutral and objective evaluator before making any recommendation to the Court. Preferably, the evaluator should be a neutral party to whom both parties consent and who is appointed by the Court.

In addition to the best interests the APA recommends the following for child custody evaluations:

2. The child’s welfare is paramount.

The Best Interests factors are an operational definition of the children’s welfare.

This issue has come up several times with alienated children.  A parent may have legitimate concerns that the child has been alienated from him or her, and that as a result, the other parent should face consequences, such as removal of the child from the home of the alienating parent.  In a number of cases, however, that is contrary to the child’s interest.

In the case of Dr. Z, the children’s welfare is not clear, as an adequate evaluation has not been performed.

3. The evaluation focuses upon parenting attributes, the child’s psychological needs, and the resulting fit.

The most useful and influential evaluations focus upon skills, deficits, values, and tendencies relevant to parenting attributes and especially to a child’s or children’s psychological needs.

Comparatively little weight should be afforded to evaluations that offer a general personality assessment without attempting to place results in the appropriate context.

For example, in a recent case, the parent with bipolar disorder had the most to offer the children, had been their primary caregiver for some time, and had a disorder which was well-controlled and had little impact on the children.  In another case, the mom had attempted suicide, but had recovered sufficiently well to share parenting time with the children.  The children had done remarkably well, given all that had occurred.

In another case the children were alienated from their father, but the father had very few parenting skills, especially compared with the mom, and had been struggling with alcoholism for many years .  Also, the children were old enough to have a preference for living with their mother.

What is needed by the children is usually more complicated than just a personality assessment or any one issue.

4. Psychologists strive to gain and maintain specialized competence

Laws change, existing methods are refined, and new techniques are identified. In child custody evaluations, general competence in the clinical assessment of children, adults, and families is necessary, but insufficient in and of itself. The court will expect psychologists to demonstrate a level of expertise that reflects contextual insight and forensic integration as well as testing and interview skills.

Psychologists continuously strive to augment their existing skills and abilities … An evolving and up-to-date understanding of child and family development, personality functioning  and assessment, child and family psychopathology, the impact of relationship dissolution on children, and the specialized child custody literature is critical to sustaining competent practice in this area. Psychologists also strive to remain familiar with applicable legal and regulatory standards

Should complex issues arise that are outside psychologists’ scope of expertise, they seek to obtain the consultation and supervision necessary to address such concerns.

5. Psychologists strive to function as impartial evaluators.

“Family law cases involve complex and emotionally charged disputes over highly personal matters, and the parties are often deeply invested in a specific outcome… there may be no resolution that will completely satisfy every person involved.

In this contentious atmosphere, it is crucial that evaluators remain as free as possible of unwarranted bias or partiality.

Was Dr. Z truly impartial? Her behavior says no.

6.  Psychologists strive to engage in culturally informed, nondiscriminatory evaluation practices.

Psychologists are encouraged to monitor their own values, perceptions, and reactions actively, and to seek peer consultation in the face of a potential loss of impartiality. Vigilant maintenance of professional boundaries and adherence to standard assessment procedures, throughout the evaluation process, will place psychologists in the best position to identify variations that may signal impaired neutrality.”

Professional standards and guidelines articulate the need for psychologists to remain aware of their own biases, and those of others, regarding age, gender, gender identity, race, ethnicity, national origin, religion, sexual orientation, disability, language, culture, and socioeconomic status. Biases and an attendant lack of culturally competent insight are likely to interfere with data collection and interpretation, and thus with the development of valid opinions and recommendations.

Psychologists strive to recognize their own biases and, if these cannot be overcome, will presumably conclude that they must withdraw from the evaluation. When an examinee possesses a cultural, racial, or other background with which psychologists are unfamiliar, psychologists prepare for and conduct the evaluation with the appropriate degree of informed peer consultation and focal literature review. If psychologists find their unfamiliarity to be insurmountable, the court will appreciate being informed of this fact sooner rather than later.

7. Psychologists strive to avoid conflicts of interest and multiple relationships in conducting evaluations.

That is a key factor in Case 5.