Psychologists and Family Law:
What if the clothes have no emperor?
Presentation at the 36th Annual Conference of the Association of Family and Conciliation Courts,
June 3, 1999, Vancouver, B.C.
"Psychologists and Family Law: What if the clothes have no emperor?" -
Presentation at the 36th Annual Conference of the Association of Family and Conciliation Courts,
June 3, 1999, Vancouver, B.C.
It was thirty years ago that I first began to ask questions about the personal beliefs of mental health experts and to examine how these beliefs influenced clinical decisions and professional opinions.
Back in 1969, my research focus was on the practice of psychiatry. I spent several years examining how psychiatrists made decisions about their patients. While most claimed to be very confident about their diagnostic and treatment decisions, these decisions seemed often to have little to do with the symptoms or the histories of their patients. They seemed more connected to the psychiatrist's theory - and especially his or her belief about the causes of people's problems.
From those early days, I have had the tendency to wonder where ideas come from and the inclination to seek out and question the theories on which opinions are based..
Over the years, I have broadened my focus from the arena of mental illness to a wide range of issues such as psychotherapy, trauma counseling, violence prevention and parenting. Always, the experts are telling us the answers; suggesting the cures, the right decisions and the correct actions. And usually there is a tone of benevolence; an air of confidence. Unfortunately, what seems to be lacking is a solid foundation to support what they are saying.
Most of you, I'm sure, know the fairy tale about the little boy who saw that the Emperor was naked and shouted: "The emperor has no clothes!" I feel sometimes a bit like that child. I now seriously suspect that, when it comes to my own profession, something equally shocking must be said. I find myself now pointing at psychology and suggesting that the clothes have no Emperor.
I showed this cartoon in Halifax while delivering an invited address at the 1997 meeting of the National Association of Provincial Court Judges. I did not intend that it lighten a serious topic. I showed it then and I show it today, because it helps to get my point across.
Some years ago I became especially concerned about the growing influence that psychologists were having in the Courts and on the Justice System. As public funds began to dry up in Health and as an increasing number of clinical psychologists competed for the dollars which were left, I saw more and more of my colleagues scurry into the arena of forensic psychology. I don't mean to suggest that psychological testimony is new to the Courts. It has been around throughout the 20th century, long before its use in the infamous Leopold and Loeb trial. But what is alarming is the recent rapid expansion in the field.
In a 1995 survey of American Psychological Association (APA) members, 40% said they did forensic work. Patrick DeLeon, the President Elect of the APA, has included further expansion of forensic work in his year 2000 agenda. He "seeks closer relationships between psychology and the law, which could lead to more career opportunities for psychologists in forensics." (APA Monitor, Jan. 99, p.37)
Today, I'll focus my concerns on forensic psychology specifically as it relates to family law matters - custody, access and parental competence. This area of practice is a tremendous source of income for psychology "experts." The cost of an evaluation ranges from $2,000 to $25,000. In the mid 1970's it was estimated that in the US the yearly price tag for all the custody evaluations done was $24 million. (Hagen, 1997, p.199)
These services are purchased because it is widely accepted that:
(1) the opinions provided are based on three solidly established professional skills: observation, interviewing and testing
(2) the theories presented are research-based.
People believe that experience and professional training make psychologists more astute, unbiased and perceptive when making observations and more able to make accurate judgments while conducting interviews.
If a five-year-old boy clings to his mother, is this an indicator of a pathological attachment to her, of immaturity, of his fear of an abusive father, of his fear of strangers or of his anxiety in the situation? While that observation, in most cases, wouldn't be interpreted in isolation, it seems likely that it will be understood, and perhaps stated, according to the psychologist's theoretical orientation and more importantly, his or her beliefs.
Anyone involved in custody cases knows that experts often disagree; that's why each side often hires its own. If we stopped to look at the frequent disparity between views, we might realize that opinions lack, rather than reflect, objectivity. In the cases of these dueling experts, it is often the one who has the most impressive credentials or the one who can tell the best story who is most influential. As one lawyer puts it: "I would go into a lawsuit with an objective uncommitted independent expert about as willingly as I would occupy a foxhole with a couple of non-combatant soldiers."
What psychological research tells us is, or rather should be, compelling. In the time allowed, all I can do is summarize some of the relevant results mentioning one or two key sources for each.
The experts operate at a worse than chance level when they claim to know who is telling the truth and who is lying. (Hagan)
Clinical interviews are often leading in nature. Suggestions made by the experts can easily result in exaggerations, fabrications and false claims and this is a particularly high risk with children. (Ceci & Bruck; Loftus)
When psychologists predict future behaviour they are no better than the rest of us - studies which examine the correctness of predictions of such things as violence, academic performance and recidivism show psychologists to be operating at about (toss of a coin) chance levels. (Dawes)
The clinical experience and professional qualifications, which are often touted to bolster their opinions, have no relationship to accuracy of judgment or predictions. It does not matter whether you have a B.A. or a Ph.D.; 6 months or 20 years of experience - an opinion is only an opinion. (Dawes; Bickman)
Surely, even if the observations and the interviewing does not make the experts special and worth the expense, we know that the tests they use are reliable and valid. But do we?
The buzz word now is "actuarial" which simply means that numbers are used. Using numbers, of course, gives the impression that something real has been measured. That is, however, not necessarily the case.
The popularity of psychological testing began with the IQ. If Johnny scored 115 and his big sister 105, then he was smarter. It took us years to realize that these numbers were abstractions, with very little usefulness. Unless there is a very large difference in the IQ's of Johnny and his sister, the numbers tell us nothing at all. They don't predict whether Johnny would do better at school or succeed in life any better than his old sister. There is no reason to claim that a child will do better or worse with the parent who has either the higher or the lower IQ or that the child would be better off with the parent whose IQ is more similar to his.
This seems to be the crux of the problem when the IQ test is used in custody matters. The scores, while they may give the psychologist something to talk about, likely serve no useful function whatever in determining the best arrangement for the child. Nevertheless, according to surveys, IQ tests are being used 54% of the time with children and 43% with adults. For what purpose?
A similar criticism can be made of the personality tests which most often show up in reports. The Rorschach inkblots, the MMPI, the TAT were all intended to diagnose serious psychopathology. When used on a normal population, which covers the vast majority of those involved in custody disputes, they are about as relevant and predictive as would be a horoscope. Often, especially with the MMPI, computerized interpretations are used, referring to a hypothetical individual who score in a particular range. (One of the best sources of critiques of specific tests is Ziskin.)
There have also been developed a host of custody-specific tests. The problem is that none of these has any established ability to predict what is best for the child or the family. I'll give just one example. The Bricklin Perceptual Scales claim to be research-based. The problem is that its validity has been determined by seeing how often its findings concurred with the judges' decisions in cases in which it was used. This 90% concurrence sounds impressive. However, it is being erroneously and misleadingly used to give the impression that the test is useful in helping the courts arrive at the best decision. This figure could very well mean either that the judges would have arrived at the same decision independent of this data or that test results have had a persuasive effect on these judges. If the former is true, use of the Scales represents a waste of money; if the later is true, decisions are being contaminated by them. No-one bothers to mention, let alone test, these possibilities. The second one I find especially disturbing. People assume that the opinions the experts provide lead to better decisions; that judges would not do as well without the opinions of the experts - that somehow children would be more likely to be harmed. What this boils down to is the idea that in the long run children are helped and protected from harm because of the influence of the experts. Unfortunately, there is not a single study which shows this to be true. Psychologists are free to offer opinions or make predictions secure in the knowledge that they will not be blamed for being wrong.
As far as supporting the validity of expert opinion, the data on observational and interviewing skills goes in the opposite direction, indicating that the opinions of the experts are no better than those of the average person. The tests have little to offer other than their numbers; none of them has any demonstrated ability to improve the accuracy of predictions. And predicting is what this is all about. What the Courts want to know is who will be the better parent or what arrangement is the best fit for the family.
On a larger and more disturbing level, there is no longitudinal research to support any of the grand theories of psychologists or to show that their input in court helps. There is no evidence to show that mothers are more nurturing as parents, that fathers are more likely to be violent or that shared parenting is better. And there is no research that shows that our experts are accurate over time in their predictions.
Some might argue with me that there is the well-known Wallerstein study, which is longitudinal in nature having observed the same group of children for 25 years after their parent's divorced. Unfortunately, since there is no comparison group in this study, there isn't much that we can make from it other than that these children, who lived through a divorce, are not doing particulary well in life. We don't know if they had might have done better with a different custody arrangement or in different circumstances.
People often criticize the Wallerstein study - and I could - but I'm not going to do that right now. Because, despite its flaws, this study does tell us something very important. It clearly demonstrates that psychologists can be dead wrong. At the time that this study began, psychologists believed that divorce had a neutral effect on children, and some even wishfully believed that it was good, that it would teach children co-operation, respect and individuality. Based on that, psychologists predicted that these children should do well and they set out to prove it. Now, 25 years later, the research shows that the clinicians' opinions, those which encouraged many couples to separate and which influenced the governments of both the US and Canada to make divorce easier, were wrong. The children did not benefit - they did not blossom and, in fact, many may have been seriously harmed emotionally, cognitively and socially.
Times change, fads come and go, and the anxious and conservative 90's are certainly different from the free and easy 70's. But if those experts in the 70's were mistaken in their opinions, why should we assume that the theories of today's experts are any more correct?
Let me briefly give you a case to consider: (This case, which is particularly well documented, cited in more detail in an article by Donna LaFramboise which is listed in the "recommended readings" provided.)
A man whom I will call Mr. Jones is a lawyer here in Vancouver. He has spent about $300,000 to find out, in his words, that "the system is insane." When he and his wife divorced in 1994, his ex-wife was awarded sole custody of their two young children.
The Judge's decision was based on a child custody report written by one of the most prominent evaluators here in B.C. This psychologist who does more than 200 reports for the Courts each year, had a theory. His idea was that custody of the two little girls involved should be granted to the more fragile of the parents. In giving his reasons, the psychologist wrote: "in considering the issue of sole custody to the father, my concern is that the mother will interpret this to be a rejection of her as a parent and that she may out of hurt, withdraw from being an active parent to the children." He continued: "giving the mother sole custody will bolster and sufficiently make secure her role with the children that she will be magnanimous in her facilitating the contact between the children and their father." In effect, these two little girls were placed in the role of bolstering their mother's disturbed mental health and the father was left to do what he could, from a distance, to help them. These were very young children and the theory was nothing more than a belief expressed by someone recognized as "an expert."
This particular theory is an unusual one; it is one that I had not previously encountered. But in virtually every report I have reviewed, one can find some underlying belief or theory. Most are more familiar, more pervasive than the one I've just described.
Among the popular ones these days are:
Women are more nurturing than men - the bond with the mother is crucial - the "good mother is what the child needs most.'
Parental Alienation is a bad thing. The child should not be placed with the parent who says bad things about the other parent.
Men are more aggressive and violent than women. Living with a batterer (or even an accused batterer) is an enormous risk for children "not only to their immediate safety but to the kinds of violent behavior they may later exhibit as adults."
This last example is taken from an article about an international group of domestic violence experts who submitted a brief in the O.J. Simpson case. In this instance, the theory did not serve to shift the balance and Simpson retained custody of his children.
However, such theories often do serve to shift the balance. Recently, I have seen several reports where allegations of sexual abuse were highlighted in such a way as to influenced judges' decisions. The idea was expressed that if these allegations were true the child was at risk and the implication was given that custody should be granted to the other parent. But wait a minute! If the psychologist does not know if the allegations are true or false, how can such an opinion have weight. But they do have weight. They instill fear, making it seem too dangerous to consider seriously the possibility that the parent, tainted by the unsubstantiated accusations, may, for entirely unrelated reasons, be the better choice for the child. What purpose does it serve to have the Courts swayed to and fro by such opinions? In most conflicts, aren't there enough opinions already?
While many colleagues express their outrage that I should raise such questions, there are some who share my concerns. Most of these individuals are academics who are seriously concerned that the uncurbed willingness of psychologists to express opinions will ultimately destroy the profession. They may be right; however, my focus is not on saving the profession so much as it is on curbing the damages to people, whose lives are being affected by the opinions.
Sadly, I no longer have any expectation that the necessary corrective measures will come from within the profession. I have seen no evidence that the Professional Colleges will challenge, or in any way curb, the opinions offered by "the experts." Mr. Jones, for example, lodged a complaint against the psychologist whose theory had so much influence in his case. When it was dismissed by the College of Psychologists here in B.C., he tried to take it to higher levels. Eventually, he concluded that such efforts were futile. Individual psychologists have, it seems, an unlimited right to express their own theories and beliefs - even when there is no knowledge base on which to support them and even, as this next example demonstrates, when the "facts" are shown to be wrong.
When another man, this one in Ontario, complained about a psychologist who had, in a report erroneously described him as an admitted sex abuser and an adulterer, the Professional College took no corrective action. The man's wife got sole custody and he lost contact with his children for a long time. The psychologist had not bothered to check the sources of his information. It was inaccurate but the courts had taken it as factual. The professional college considered the psychologist's errors to have been "trivial."
So, I turn, sadly but decisively now, away from my profession:
I turn to lawyers. I ask them to do what the lawyers in the Kumho Tire case did. I ask them to try to demonstrate to the Courts that "the clothes have no emperor." To aggressively challenge the admissibility and the weight of "expert" opinions and, in doing so, to try to avoid dueling expert scenarios.
And I turn to judges. I ask them to listen when these arguments are made and, whenever possible, to raise questions themselves. One US psychologist, Margaret Hagen, has suggested that judges have gotten into the habit of letting the psychologists do their dirty work, of sorting out messy situations. Her criticism may be unfair. But the reality is that the decisions are difficult and that often there may seem to be no basis on which to make them.
The dilemma I leave you with is that the psychologists who sell advice may simply be making matters worse.
A list of Resource Materials is provided on the following page (Click here.)
Specific, and more detailed references, are available on request.
"Psychotherapy: Snake-Oil of the '90s?" -
SKEPTIC Magazine, November, 1998 with follow-up letters and replies in the two subsequent issues
Reflections of a Dissident Psychologist -
False Memory Syndrome Foundation Newsletter - Sept. '98
Professionalism and the Abuse of Power" Presented at the Symposium: (Ab) Using Power: The Canadian Experience. Vancouver, B.C. May 8, 1998. A revised version of this paper is available in (Ab)Using Power: The Canadian Experience. Boyd, Susan C., Chunn, Dorothy E. and Menzies, Robert (Eds). Halifax, NS: Fernwood Publ. 2001.
Custody Evaluations -
"Psychologists and Section 15 (Custody Evaluation) Reports: Illusions of Expertise, Ethics and Objectivity." Invited address to the Vancouver Family Law Sections - Canadian Bar Association, May 6, 1998
- Brief to the Joint Parliamentary Committee on Custody and Access, Vancouver, April 27th, 1998
"Sacred Cows and Straw Men"
(A response to "The private practice of subversion: Psychology as tikkun olam." by Laura Brown)
"Are We Manufacturing Victims"
- Sexual Harassment Course of the B.C. Continuing Legal Education Society, February 1998
Or see these issues at http://www.tanadineen.com/COLUMNIST/Columns/index.htm