Two Views on the Use of Psychological Testing in Child Custody Evaluations
| Publication year | 2019 |
| Author | Robert A. Simon, Ph.D. and Daniel B. Pickar, Ph.D. |
Robert A. Simon, Ph.D. and Daniel B. Pickar, Ph.D.
Robert A. Simon, Ph.D. is an internationally recognized leader in forensic psychology consulting in the area of child custody disputes and family law. Dr. Simon provides work product review, expert witness services and litigation support services to attorneys throughout the country on child custody matters. He trains judges, mental health professionals and attorneys on various forensic topics nationally and internationally. He is the co-author of the recently released book entitled "Forensic Psychology Consulting in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony" published by the American Bar Association. Dr. Simon is on the Board of Directors of the Association of Family and Conciliation Courts, a member of the Board of Directors of the World Congress on Family Law and Children's Rights, a member of the Board of Directors of the National Council of Juvenile and Family Court Judges, and a member of the Executive Committee of the California Bar Court. He serves on the editorial board of the Family Court Review. He is licensed in California and Hawaii.
Daniel B. Pickar, PhD, ABPP is board-certified child psychologist who conducts child custody evaluations, mediation, consultation to family law attorneys, and psycho-educational evaluations of children. For 12 years, he served as the Chief of Child and Family Psychiatry at Kaiser Permanente in Santa Rosa, California, as well as served as the Director of Postdoctoral Training in Clinical Psychology for 5 years. He has published numerous journal articles and book chapters in the areas of child custody evaluation, mediation, special needs children in divorce, and served on the editorial board of the Journal of Child Custody for 6 years. He regularly presents workshops at state and national AFCC and AAML conferences and serves on the conference committee of AFCC.
Child Custody Evaluations are forensically informed evaluations of families in which the best interests of children are at issue before the court. When properly done, child custody evaluations employ a multi-method, multi-modal approach to gathering data and making inferences. This approach is essential in forensic work because one of the hallmarks of forensic work is looking for convergence of data of different types from different sources, or, the lack of such convergence. Psychological testing is a data source that is quite frequently used by custody evaluators as a part of their data gathering. For example, Bow and Quinnel,1 found that 91% of evalu-ators use psychological testing as a part of their data gathering practices.2 Quinnel and Bow3 report on which tests are used and how often they are used. Clearly, the use of psychological tests is a common practice in child custody evaluations even though no practice standards or guidelines mandate the use of testing. Further, because it is commonly used, does not mean that they should (or should not) be used so broadly.
Recently, Garber and Simon4 published a call for careful and clear thinking about psychological testing in custody evaluation and advised that if tests are to be used at all, their use should be strictly limited to the generation of hypotheses. They advised that tests should not be used to reach conclusions, nor should they be used as part of a converging data base. In response, Rappaport, Gould and Dale5 wrote a rebuttal article in which they advocate for the inclusion of testing and argue that the proper use of testing is primarily a training issue, not an issue related to the nature of contemporary tests and testing as Garber and Simon argue.
This article, written by Robert A. Simon, Ph.D. and Daniel Pickar, Ph.D., both highly regarded California custody evaluators, condenses the debate into a single collaborative article.
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In the world of forensic psychology, it is often noted that child custody evaluations are the most complex and the most challenging type of forensic assessment that exists. Because of this, it makes sense that evaluators wish to gather as much information as possible. It also makes sense that evaluators wish to gather information of various types. Indeed, one of the hallmarks of forensic psychological assessment is the use of a "multi-method, multi-modal" approach to data gathering. Child custody evaluators are tasked with a complex task, perhaps the most complex task in all of forensic psychology. This is because custody evaluations are complex family systems evaluations rather than evaluations of an individual which is normally the case in other fields of forensic psychological assessment. The evaluator is charged to examine the "fit" between parental limitations and capacities and the children's needs,6 we address the "fit" between these instruments' limitations and capacities and the needs of CCE. We conclude that the fit is poor and, therefore, that individual adult psychometrics have little or no place in the process of evaluating family dynamics.
The subject of a child custody evaluation is the dynamic and developing family system, not the individual and, on this basis, that measures of individual functioning are largely irrelevant. This paradigm shift requires most evaluators to retool and reconsider process, product and presentation. A CCE report that includes intimidating and invalid means, percentile ranks and alpha coefficients risks misleading consumers and harming the children whom we intend to serve.7 8 This risk is compounded when evaluators blindly rely exclusively on computer-generated scoring and interpretations.9 10 Indeed, the AFCC Model Standards for Custody Evaluations caution that "... Evaluators shall recognize that test data carry an aura of precision that may be misleading..."
Finally, it is an error to mistake common practice for correct practice, Keeping in mind that common practice may meet admissibility standards under Frye, but not under Daubert as discussed below. The fact that a majority of today's custody evaluators include individual psychometric adult instruments in CCEs11 thereby establishing a "community standard"12 is not reason to do the same. We recommend instead that pending the development of reliable and valid measures of systemic functioning, custody evaluators eschew the use of individual adult psychometric tests in favor of cautiously and carefully crafted, systemically-informed, empirically-grounded, and child-centered qualitative observations, inferences and recommendations.
Tests must be distinguished from questionnaires.13 Whereas tests are subject to formal interpretation and may generate diagnoses, questionnaires can be standardized, economical and time-efficient means of collecting data and generating hypotheses.14 Tests share certain properties:
- Norms. Tests are typically developed by developing specific empirically-derived norms for distinct samples of people. Thus, tests "target" a particular population, be it broad, narrow or in between. Stahl and Simon15 advise that, "... psychological tests are best used with the reference population with which the test was normed." The APA explicitly requires that psychologists must, "... use assessment instruments whose validity and reliability have been established for use with members of the population tested."16
- Reliability. Test data are meaningless until they have been shown to be stable across time, contexts and/or administrators. Reliability describes these indices.
The fact is that we don't know, a priori, who child custody litigants are until they become litigants. We can't accurately predict who is more likely to be a child custody litigant. Experience suggests that they come from all socio-economic strata, all racial, religious, language and cultural groups, and span the full range of ages, IQs, sizes, shapes and colors. They obviously share the experience of parenting (although some are not biological parents) and typically a contentious (if not antagonistic) attitude toward a former parenting partner. Any family law practitioner surely recognizes that people involved in child custody disputes are a population of people who are uniquely and idiosyncratically impacted by the custody dispute. Therefore, how they portray themselves on psychological tests is also unique. Unless and until this population is better understood and instruments are developed that represent its normative thinking, feeling and behavior, it is simply misleading to make statements about a custody litigant by comparison to the responses of other entirely distinct normative groups on which tests are developed and for whom they are intended.
Of particular relevance to the question of test reliability among custody litigants is the larger question of the stability of the population in general. Assessing people in the midst of crisis tends not to capture their typical functioning. The intense social, emotional and financial pressures associated with contested custody litigation can induce or exacerbate acute and reactive anxiety, anger and regression among otherwise healthy and high functioning adults.17 Thus, it remains to be seen whether a properly normed test could demonstrate test-retest reliability across the period before, during and after the close of litigation.
Validity. A test that is reliable, must still be shown to actually measure what it purports to measure. Even given a properly normed and reliable instrument, professionals who conduct CCEs are still faced with the mountainous problem of criterion validity. That is, if the criterion against which a test is to be validated is the 'best interests of the child,' but this criterion cannot be generically defined, then the task would appear to be impossible.
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