To recommend or not recommend: That is still the question

• Published date: 01 October 2023
• Author: Lawrence Jay Braunstein,Jeffrey P. Wittmann
• Date: 01 October 2023
• DOI: http://doi.org/10.1111/fcre.12751

SPECIAL ISSUE ARTICLE

To recommend or not recommend: That is still

the question

Lawrence Jay Braunstein

1

|Jeffrey P. Wittmann

2

1

333 Westchester Ave, White Plains,

New York, USA

2

18 Corporate Woods Blvd, Albany,

New York, USA

Correspondence

Jeffrey P. Wittmann, 18 Corporate Woods

Blvd., Albany, NY, USA.

Email: jw@drjeffwittmann.com

Abstract

The boundaries around what parenting plan evaluators

should and should not say in their reports to Courts has

been debated in both mental health and legal circles for

decades. The controversy about whether parenting plan

evaluators should make specific recommendations to

Courts regarding access plans and decision-making rights

revolves around varied views of the limits of mental health

professionals' knowledge about such matters, whether they

are socio-moral or psychological in nature, and the benefits

to children and society of facilitating case-resolution. In the

conversation presented below a seasoned family law attor-

ney and a psychologist who is a frequent critic of the prac-

tice of making specific recommendations debate this area

of controversy.

KEYWORDS

child custody, Custody evaluations, forensic, parenting plans

Key points for the family court community

•The contours of what parenting plan evaluators should

and should not say in their reports has been a controver-

sial issue in both the legal and mental health fields.

•Both the desire by courts and attorneys to have access

to helpful information about families and the limitations

of the relevant research literature need to be carefully

weighed by practitioners.

DOI: 10.1111/fcre.12751

© 2023 Association of Family and Conciliation Courts.

782 Family Court Rev. 2023;61:782–800.

wileyonlinelibrary.com/journal/fcre

•Evaluators should carefully consider the arguments for

and against making specific parenting plan recommenda-

tions for the courts.

Lawrence Jay Braunstein: Jeff, I welcome the opportunity to discuss Tim Tippins and your position that child cus-

tody evaluators have no scientific basis for making recommendations and therefore should not do so. As a practicing

family law attorney for the past 40 years, I have to respectfully disagree with your position. I think it ignores the fact

that a great majority of judges, attorneys, and mental health professionals feel that recommendations serve to clarify

the issues for the Court, and oftentimes assist in settling cases. However let me backtrack to give our discussion

some context.

Tim Tippins and you wrote an article in 2005 called Empirical and Ethical Problems With Custody Recommenda-

tions: A Call for Clinical Humility and Judicial Vigilance (Tippins & Wittmann, 2005a). In that article, you argue against

the practice of forensic evaluators making child custody recommendations, a position that has generated substantial

debate in your field and in legal circles. In 2022, both the Association of Family and Conciliation Courts (AFCC) and

the American Psychological Association (APA) revised their guidelines for child custody evaluations. The AFCC publi-

shed its Guidelines for Parenting Plan Evaluations in Family Law Cases in 2022, which is a revision of their 2006 Model

Standards for the Practice of Child Custody Evaluations. I know you were a member of the AFCC Task Force to revise

the 2006 standards. In 2022, the APA also published their updated guidelines: Guidelines for Child Custody Evaluations

in Family Law Proceedings. Despite your call for clinical and judicial humility in 2005, neither set of guidelines has

taken a position for or against mental health professionals making recommendations about specific access plans or

custody. Has Tim and your call for humility gone unheeded?

Jeffrey Wittmann: I think that's a very important question. In my view, it's a mixed picture. I see both docu-

ments, the one from the APA and the one from AFCC, as raising clear red flags about this issue despite the absence

of an explicit statement that practitioners should not make custody recommendations. The task force process,

regarding the guidelines that I participated in for AFCC, was very exciting and enlightening, and you are correct that

the document does not specifically state that evaluators should not make recommendations. However, like similar

documents, there is text that is relevant for practitioners who are trying to decide how to practice in an ethical and

scientifically valid manner. The new guidelines from AFCC do raise a red flag about ways in which parenting plan

evaluators can go wrong, about the boundaries that we should maintain, and what we should and should not do in

parenting plan evaluations. This red-flag content is connected, from both conceptual and practical angles, to what

we wrote in 2005. One thing the AFCC guidelines clearly assert is that evaluators should inform the Court when a

particular psycho-legal question cannot be answered due to an insufficient basis for that opinion. Our view in 2005

and certainly my view to this day, is that the burden falls on the proponent of a position to show how it is correct or

accurate, not on those who question the proposition. Robin Dawes referenced this burden when he referred to the

“show-me principle”in his House of Cards book in 1994. When it comes to parenting plan recommendations, “the

assumption is that parenting plan evaluators can, in fact, make recommendations in a reliable and valid manner”. For

almost 20 years, Tim and I have been asking the mental health disciplines “where's the beef,”or “show me”–where

is the literature that indicates we can reliably and validly make specific custody or parenting recommendations? Not

surprisingly, that challenge is often met with silence, and I do not mean that in a condescending way. In reality, that

is the case for many areas of forensic psychology –we do not have what Tess Neal and her team referred to as foun-

dational validity (Neal, Martire, Johan, Mathers, & Otto, 2022). That is to say, we do not have empirical confirmation

that we can, in fact, make recommendations about certain aspects of decision-making and parenting time in a valid

and reliable manner, and that's because research to actually test our ability to get it right, or to calculate how often

we get wrong, is almost impossible to conduct. And it is even more difficult with parenting plan issues because we

BRAUNSTEIN and WITTMANN783