Sherlock Holmes and the Case of Resist/Refuse Dynamics: Confirmatory Bias and Abductive Inference in Child Custody Evaluations

• DOI: http://doi.org/10.1111/fcre.12478
• Published date: 01 April 2020
• Date: 01 April 2020
• Author: Benjamin D. Garber

SPECIAL ISSUE: PARENT-CHILD CONTACT PROBLEMS: CONCEPTS,

CONTROVERSIES, & CONUNDRUMS

CASE EVALUATION AND RESPONSE

SHERLOCK HOLMES AND THE CASE OF RESIST/REFUSE

DYNAMICS: CONFIRMATORY BIAS AND ABDUCTIVE INFERENCE IN

CHILD CUSTODY EVALUATIONS

Benjamin D. Garber

Had Sir Arthur Conan Doyle’sfictional detective, the great Sherlock Holmes, actually engaged in deductive reasoning, hewould

have solved many fewer crimes.In fact, Holmes’logical progression from astute observation to hypotheses is a model of a type

of inductive reasoning. This paper argues that mental health professionals tasked to evaluate why a child is resisting/refusing con-

tact with one parent must approach each family the way that Holmes approached each case, without a presumed suspect, moving

systematically from detail to hypothesis, well-versed inthe full range of dynamicsthat may be at play, and erring in favor of par-

simony rather than pathology. By contrast, the custody evaluator who approaches these matters through a deductive process, seek-

ing data that support an aprioritheory, is vulnerable to confirmatory bias and doing harm to the child whose interests are

paramount. The literature concerned with resist/refuse dyna mics is reviewed, yielding 13 non-mutually exclusive variables that

evaluators must consider so as to more fully identify why a particular child is resisting or refusing contact with one parent. On

this basis, the hybrid model is expanded to include th e full spectrum of contributing dynamics. Specific recommendations are

made for judicial officers in the interest of writing orders for custody evaluations that minimize the risk of confirmatory bias.

Key Points for the Family Court Community:

Deductive reasoning seeks to confirm or refute an a priori hypothesis

Deductive reasoning is highly vulnerable to confirmational bias

Confirmational bias can corrupt and invalidate forensic evaluation to the detriment of all involved

Resist/refuse dynamics must be understood through an inductive process that is open to all possible hypotheses

A survey of the literature identifies at least thirteen mutually compatible hypotheses, all of which must be evaluated

Courts must take care to wordorders for forensic family evaluations in a manner that minimizes confirmatory bias and

invites inductiveinvestigation

Keywords: Alienation; Child Custody; Confirmatory Bias; Co-parenting; Divorce; Enmeshment; Estrangement; Polariza-

tion; Resist/Refuse; Triangulation.

“I suppose it is tempting,

if the only tool you have is a hammer,

to treat everything as if it were a nail.”

Maslow (1966) (p. 15).

By definition, child custody evaluators are asked to engage in a sort of retrospective detective

work. Given a family’s dysfunction and distress in the present, one must infer past causes so as to

either intervene as a Court Involved Therapist (Fidnick, Koch, Greenberg, & Sullivan, 2011) or

Corresponding: bdgarberphd@familylawconsulting.org

The author is honored to have been invited to prepare this article for a special edition of Family Court Review to appear in

04.2020

FAMILY COURT REVIEW, Vol. 58 No. 2, April 2020 386–402

© 2020 Association of Family and Conciliation Courts

advise the court in the capacity of Guardian ad litem (“GAL”), court-appointed child custody evalu-

ator, or party retained testamentary expert (Gould, Dale, Fisher, & Gould, 2016). Logic dictates that

this task can be approached in one of two ways. The deductive process presumes a hypothesis about

causation and proceeds to gather data that will either confirm or refute it. The inductive process

begins by gathering data and, on the basis of those agglomerated observations, only then infers

competing hypotheses that might thereafter be tested.

This paper describes the deductive process as incompatible with the court-appointed child cus-

tody evaluator’s ethics, leaving him or her vulnerable to confirmatory bias and thereby doing harm

to children. By contrast, the inductive process is congruent with the child custody evaluator’s ethical

guidelines and more likely to generate an opinion that is impartial and genuinely child centered.

The literature concerned with resist/refuse dynamics is reviewed, yielding 13 non-mutually exclu-

sive variables relevant to assessing resist/refuse dynamics. The child custody evaluator is advised

that each of the 13 variables must be weighed so as to induce the unique formula or recipe that

describes the dynamics associated with a particular child’s polarized position in the conflicted

family.

1

I. DEDUCTION, INDUCTION, AND ABDUCTION

Most people associate deduction with Sherlock Holmes, Sir Arthur Conan Doyle’s brilliant and

daring fictional detective. In a typical mystery, Holmes visits the scene of a crime. He observes

details others failed to note, and applying these data to his encyclopedic grasp of the possible

dynamics in play, he generates a who-done-it hypothesis. For all of the character’s fame and skill,

this process of “reasoning backwards”(Conan Doyle, 1888) is not, in fact, deductive. Deduction is

a top-down process of inference that seeks to confirm or refute a preliminar y hypothesis. Deduction

is the second step of the scientific method, the means with which hypotheses induced from observa-

tion are refuted or confirmed. Holmes pointedly took on each investigation without presumption.

He rigorously (and sometimes tediously) studied the facts and only then offered a hypothesis. Build-

ing his case from the bottom-up, his method is the prototype of inductive reasoning.

To illustrate: were Holmes the master of deduc tion that he is commonly thought to be, he would

have approached each murder scene with a hypothesis already in mind, for example, in the persev-

erative belief that his arch enemy, Moriarty, had struck again. He would then have gathered evi-

dence relevant to that hypothesis. In so doing, he likely would have been blind to the minutiae that

a more open-minded, inductive process relies upon (e.g., a dog’s failure to bark [Conan Doyle,

1892]). He would thereby have been a far less successful detective (Carson, 2009).

Inductive logic describes the process that physicians use in the course of generating preliminary

diagnoses. The physician collects symptoms the same way that Holmes collects clues. When a pat-

tern is recognized, hypotheses are generated in the form of potential diagnoses. Further testing

(i.e., deduction) is then conducted to rule in or rule out these competing hypotheses. The initial

inductive process in medicine is distinct, however, from the inductive process that Holmes engaged

in to the extent that the physician’s set of possible hypotheses is finite and familiar. Nosologies such

as the International Classification of Diseases (World Health Organization, 1993) effectively create

a menu of options.

Inductive reasoning in a context in which the field of possible hypotheses is finite and familiar

is known as abduction (not to be confused with kidnapping [Rapezzi, Ferrari, & Branzi, 2005]).

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Where Sherlock Holmes’reasoning is best identified as inductive in that the pool of poss ible per-

petrators was effectively limitl ess and unknowable, murder myst eries in which the pool of p ossible

perpetrators i s well established are abduc tive. Agatha Christie, for ex ample, asks readers to eng age

in an exercise in abduct ion in her renowned play, “And Then There Were None”(Christie,

1939).

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