Mental Health Evaluator Decides Child Custody
The current issue of Family Court Review addresses the controversy surrounding the role of the mental health evaluation in child custody cases, led by an article by Timothy Tippins and Jeffrey Wittmann which argues that the child’s best interests are a legal and socio-moral construct, not a psychological one. Tippins and Wittmann write that psychologists have no valid, reliable methods for determining custody plans for children, yet often do. “There is no empirically supportable method or principle by which an evaluator can come to a conclusion with respect to best interests entirely by resorting to the knowledge base of the mental health profession,” the authors assert.
The authors contend that clinicians with adequate forensic training can provide matrimonial and family court judges with useful, allowable information primarily in the first two layers of their model: level I - what the clinician observes, and level II - what s/he concludes about the psychology of a parent, child, or family. At Level III, where the evaluator’s inferences bear more directly on custody-relevant issues, the author advice caution and firm anchoring to premises established as scientifically valid by the empirical research base of the psychology discipline. At Level IV, opinions as to what custody plan eventually serves a given child’s best interest are to be avoided under their model. The authors also offer other recommendations, including that judges prevent expert witnesses from addressing the ultimate custody plan. “The legal system has both the right and duty to exclude opinions that are not supported by good science,” the authors state.
Not everyone agrees with these views, however. All through this issue of Family Court Review experts from varied backgrounds—law professors, mental health experts, researchers, judges, and child custody evaluators in different practice settings and in different countries address the role of the neutral mental health evaluator in child custody disputes in all of its complexity and comment on the Tippins and Wittmann article. The Honorable Arline S. Rotman suggests that they do not go far enough in their call for reform. "Even if we were to adopt all eight of their recommendations, including barring level IV testimony on the ultimate issue, we would still be faced with the problem of custody decision-making based on inadequate and untested evidence," she begins. And Joan B. Kelly and Janet R. Johnston suggest another policy that would reserve forensic custody evaluations for "... serious allegations of child abuse, neglect, and molestation, as well as contested claims of parental psychopathology, substance abuse, or domestic violence, where standards for parental behavior in family court would be more on a par with those in dependency court.”