Transcript: The Forensic Psychologist’s Role in Custody Evaluations – Robert Simon, Ph.D.
Child custody consultant & forensic psychologist Robert A. Simon, Ph.D., discusses the proper role of forensic psychologists in family court – and how to know if an evaluator is trusting their gut more than the objective data.
My name is Diana Shepherd, and I’m the Editorial Director of Family Lawyer Magazine. Today, I have the pleasure of speaking with child custody consultant and forensic psychologist Robert A. Simon (Ph.D.) about “Key Distinctions Between Clinical and Forensic Psychologists in Family Courts.” Based in San Diego and Hawaii, Dr. Simon is an internationally recognized leader in forensic psychology and custody consulting with over 35 years of experience in the area of family law and domestic relations. Welcome, Dr. Simon, and thank you for joining me today!
Robert Simon: I appreciate you having me here. When you say I’ve got 35 years of experience, boy, do I feel old!
Let’s start by discussing the roles of forensic psychologists in family courts. What roles can a neutral Forensic Mental Health Professional (FMHP) play in child custody litigation?
There are two neutral roles that people like myself can play. Perhaps the best known is that of a court-appointed custody evaluator. The phrase “custody evaluator” varies from jurisdiction to jurisdiction. Some call them parenting assessors or family consultants. But it’s a neutral, specifically trained mental health professional that does these assessments for the family courts and reports back to the court with regard to what is in the best interest of the child in the professional’s opinion and what kind of a parenting plan makes sense.
Also, whenever a mental health professional testifies in a family court proceeding, irrespective of who hired them, whether they’re appointed by the court as an evaluator, or hired by mother or father to be an expert witness, they are neutral to the outcome. Their job is to educate and assist the court in understanding complex issues. They are still neutral in that sense.
Are there any legitimate non-neutral roles for FMHPs in family law?
People such as myself are often retained by attorneys as what I call a work product or behind-the-scenes consultant. We become a member of the team that is assisting a client in accomplishing the outcome that they wish to accomplish. We’re non-neutral because we’re part of an advocacy team. What’s important to understand is that in that role, we never testify. We never give input to the court. We don’t write any declarations or affidavits expressing opinions of any kind. We are silent in terms of input to the court. We can be non-neutral and aligned with one side if and only if we remain silent in the eyes of the court.
While performing child custody evaluations, have you ever had a family lawyer try to nudge you in a direction that favors their client rather than remaining strictly neutral?
The better question is, have I ever not had that happen? It is the job of a lawyer to advocate for their client, so it is the job of that lawyer to try to present their case in a way that is persuasive in favor of their client. So yes, there are ways in which they may try to influence or nudge the opinion of the neutral, but there are also procedures and safeguards in place that would prohibit the evaluator from having what we call ex-parte communication with an attorney. That is to say, I will not get on the phone with the father’s attorney and talk with the attorney about the case unless the mother’s attorney is on the line.
In my case and the case of many of my colleagues, I make it very clear to lawyers that I’m not there for them to present their cases to me. I’m not the judge. What I want to consider is what I learn from their clients, from the parties, from the children, from the collateral contacts, and from the documents I review. I’m not receptive to or interested in their positioning or argument of a case. We try to prevent that from happening, and if it happens, we stop it.
You have noted that forensic psychology is still a relatively young field within psychology. Can you briefly discuss the differences between clinical psychology and forensic psychology? Is one model preferable to the other when it comes to child custody evaluators/evaluations?
Broadly speaking, clinical psychologists apply the science of psychology to solving personal human problems such as relationship issues. We are there to help people alleviate their struggles, their psychological interpersonal pain, and their suffering. We’re an agent of change for them. As a forensic psychologist in a custody case, I’m not there to counsel parties. I’m not there to help them through their difficulties. I’m there to advise the court about what I believe is in the best interest of the children.
I’m not a therapist. I’m not an agent of therapeutic change. The people that I work with are not my patients. They are litigants in a custody matter. In most respects, I consider the client to be the court. That’s the difference. For example, I tell parents when I begin custody evaluations that I’m not their therapist, they’re not my patient. I’m not providing healthcare or treatment or healthcare services. I’m providing court-ordered forensic services. Ultimately, I’d like to see the problems you’re having with your co-parent and the children solved, but I’m not here to assist you directly in solving the problem.
What can a family lawyer do if they believe the evaluation is more personal opinion than the result of a genuine forensic investigative process? Are there specific questions to ask that could uncover whether an evaluator is trusting their gut more than the facts?
Another great question. You use the word “investigation”; I think that’s an important word because the forensic psychologist or the forensic mental health professional is doing a psychologically-based investigation into the assertions, concerns, and claims made by each of the parties. While we can use our experience and we can use our sense of things, we are also experts. We’re the court’s expert, and an expert opinion has a demonstrable base behind it. If I offer the court an opinion about why Johnny is best off spending the Wednesday overnights at mom’s instead of just a dinner visit, then it’s my job to show what data I collected that supports that assertion.
The attorney who feels that the evaluator has just gone on their gut or gone on their personal preferences would want to elicit from that evaluator at trial, in a deposition, the data. The attorney would say, “Show me the basis. Show me the data. Draw me a map of how you got to that understanding and point to the reference points along the way.” They would do that as opposed to what I call the “Trust me. I’m a doctor; I know what I’m doing,” explanation. That doesn’t fly in the courtroom.
I gather you have reservations about the use of psychological testing in child custody evaluations. Why is this?
I do have reservations about it. Let me say first that there are no standards or guidelines for conducting child custody evaluations that require the use of psychological testing. The reason that I struggle with psychological testing is that none of the tests that we have on the market is demonstrably reliable and valid. These are two important concepts: that tests must be reliable, meaning it produces a similar result on multiple administrations of the measure, and valid that it measures what it purports to measure and not something else.
We don’t have tests that are reliable and valid, that are designed to help us make the kinds of distinctions and discriminations that we need to make about parenting and parent/child relationships in a population of human beings who are undergoing or experiencing custody struggles and are involved in custody litigation.
If you ask a family lawyer, or you ask a mental health professional who works with parents who are in the midst of custody litigation, they will tell you that the stress and the strain of litigation distort how people behave, act, think, perceive, and feel. If the test were established to be used on a population going for help in a clinic, and we’re applying it to a group of people whose functioning is altered and contorted by the stresses and strains of litigation, we’re using a test designed on one group of people for a different group of people.
Without having reliable and valid measures designed to help us make parenting discriminations in a group of people undergoing custody litigation, I have great reservations about the usefulness of the test. The judge, the attorneys, the parties, and the psychologists want to be as certain as they can about the opinions that they offer or the things that they argue for. Psychological testing creates the false impression of precision and certainty. If I draw your blood, I can literally count your red blood cells.
But why are there, for example, multiple intelligence tests on the market? Because there are multiple concepts about what intelligence is. We don’t even have a consensus about what intelligence is. We don’t have precision and certainty with psychological testing, which is why I’m concerned about using it.
Its proper use is to assist us in what we call generating hypotheses, and I’ll put that in English. To assist us in identifying questions to ask and investigate using other kinds of data. If a mental health professional wants to use testing purely and strictly limited to only generating hypotheses but not as a part of their database and not to reach conclusions, then I think psychological testing has a useful role. But otherwise, I’m concerned about the false impression of precision and certainty.
I cannot tell you how many times I’ve sat in the courtroom and heard a judge say, or heard an attorney say, “But Doctor, doesn’t the test show that the mother is depressed? Doesn’t the test show that the dad has an anger problem?” That reflects a real misunderstanding of how testing bears on this population of people. That’s why I’m concerned about it.
One of the crucial issues in forensic psychological evaluations is managing and controlling for bias. How can the Court, attorneys, and parents be sure the evaluator is truly neutral?
Let me comment first on what bias is. Bias comes in many forms. There are overt biases, things like, “I believe young children belong with their mother,” or other things like that. There are cognitive biases that are shortcuts to gathering, analyzing, and making sense of information and data. And there are implicit biases, which are attitudes towards people or groups of people that we don’t know that we have.
All of these forms of bias can come into play. In forensic psychology one of the hallmarks of a good forensic investigation is using what we call a multi-modal, multi-method approach to gathering data. We gather different kinds of data from different kinds of sources and we look for convergence of data rather than reaching conclusions typically based upon one piece of data or one type of data alone. That helps to control for bias.
Another thing that we do, if there’s a phenomenon of interest in a case. Let me give you an example. Let’s imagine that a child is showing some resistance or reluctance to transition from mom’s house to go to dad’s house. That would certainly be a phenomenon of interest in a custody case. A priori we propose multiple hypotheses, multiple reasons conceptually that the phenomenon could be happening, and we investigate them all. We look at all of them. We don’t start with a preconceived idea about why it may be happening. These are methods that are used by the forensic psychologist and by the custody evaluator in attempts to control for bias. But I do want to say this about bias, especially implicit bias and cognitive bias. These are types of bias that, like it are not, are hardwired into the human brain. It’s how the brain works.
The human brain can process multiple thousands of pieces of data every second, we can only be aware of a small handful. We have to have a filtering mechanism so that we can only focus on a small handful. That’s a cognitive bias because some of the other data that’s out there in the periphery might be important, but our brain has to filter it so we can focus on something and not become overwhelmed. Implicit bias is similar. The concept of eliminating bias is aspirational. In my view, we all are going to bring certain kinds of bias, but again, I want to define bias as something other than limited to a personal preference, a belief that something is true, such as young children belong with their mothers or relocation should never be allowed by a parent who wants to relocate with the children to another location.
Is it best practice for the FMHP to test multiple hypotheses in reaching their conclusions and formulating their advisory recommendations for the Court? Can you provide an example of how this might work?
Yes, it’s best practice. In fact, in my view, it’s minimum practice. One of the hallmarks of forensic thinking and forensic inquiry is the testing of multiple hypotheses about any phenomenon of interest.
Let’s go back to the example I gave earlier of the child who’s struggling to transition from mom’s house to dad’s house. I would ask myself, “What are the possibilities that could be causing this?” One of them is that there’s something wrong at dad’s house, that the child has a realistic fear or realistic anxiety about going to dad’s house. Another is that the child is being influenced by mother’s negativity towards dad and is concerned about leaving mom because mom gets uncomfortable. Mom becomes anxious and the child wants to protect mother from her feelings.
Another is a child who has difficulty with change and just difficulty moving from house A to house B. Another is that the parents have so much conflict between them that the child has to reconcile those differences every time they make a transition from one house to another. If I have these kinds of hypotheses in place, then I can ask questions and seek data that would bear on each of them.
What is the proper nature of the interactions between the evaluator and the litigants?
At all times the evaluator should maintain a very respectful professional stance towards whoever they’re interacting with, which means that whether we agree or disagree with them, we are respectful. We recognize that they are vulnerable in the process that we’re involved in. We want to be mindful of maintaining our humility. I put it this way: the family is not honored by our presence as their evaluator – we are honored by the opportunity to serve the family in court. That kind of humility is very important. There are certain professional boundaries you just never violate. There’s never intimacy or sexual relationships between any mental health professional and anybody they work with. We want to be careful about interacting and speaking with people in accusatory or inflammatory ways. Look, we’re going to be asking people in custody cases very difficult questions.
It’s kind of like disagreeing agreeably. We can ask tough questions in a kind way, or we can ask tough questions in a confrontative way. Also, the forensic mental health professional doing an evaluation wants to refrain from giving parenting advice, answering questions from the parents about what they should do in a certain situation, offering them counsel or comfort, or aligning with their point of view overtly.
I was involved in a case recently where the mother alleged that the father was a rageaholic and was committing all kinds of domestic violence emotionally and handed this woman several books on how to deal with angry men. Very inappropriate, because that would suggest she was believing mother without having investigated it thoroughly and aligned with mother’s point of view.
That must be hard to do for someone in this profession because they went into it to help people. You see people in pain and you think, “I’ve got a solution for them. I’ve seen this 100 times.” You want to help them, but you just can’t, is what I’m hearing…
That’s right and it is true. I have over the years seen numerous people coming into the field of child custody work, trained as clinical psychologists as I was, and having difficulty leaving that clinical mindset at the door. Having difficulty watching somebody struggle and not stepping in to try to assist them. For example, if somebody in the middle of an interview with me becomes extremely teary-eyed, it’s not my job to help pull them together. If the questions I’m asking them make them anxious, it’s not my job to intervene in their anxiety. I can give them space to pull themselves together, but it’s not my job to say “Breathe,” or “Let’s talk this through, what’s really bothering you right now.” Unfortunately, as a forensic, I can’t do that because that’s not the kind of relationship I have with them – even if I want to.
Final question: Child custody evaluations are supposed to be forensic work products, not clinical work products. Why is this an important distinction for both family lawyers and evaluators to understand?
Clinical psychologists have a different relationship with the people they work with. Clinicians form a treatment alliance with the people that they work with. They work very hard to build trust with them and build rapport. A clinician may not necessarily challenge what an individual tells them, but even if they know something that the person is telling them isn’t true, they may leave it be and let the person come back to that truth in their own time because they’re not ready to accept something. Whereas the forensic individual doesn’t believe or disbelieve what they’re told, they investigate it. Just because dad tells me that mom can’t stop feeding the children junk food doesn’t mean that I believe that that’s going on any more than I believe that mom telling me that dad’s always drunk when the kids are around is true. I have to look into it and investigate it and form my own opinion about it.
My guest today has been Dr. Robert Simon. A sought-after speaker and educator in forensic psychology, Dr. Simon has lectured at more than 50 events in the past 10 years. He has trained hundreds of psychologists, attorneys, and judicial officers at leading industry events, and he was recently elected to the Board of Directors of the National Council of Juvenile and Family Court Judges. A Licensed Psychologist in California and Hawaii, Dr. Simon is the co-author of Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony – boy, that’s a mouthful! – (ABA Book Publishing, 2020). To learn more about his work, please visit www.dr-simon.com.
Thank you for taking the time to be with us today, Dr. Simon!
Diana, thank you very much for the opportunity. I’m extremely grateful to have been invited to do this. It was a real pleasure.
Podcast: Custody Evaluations & Parental Alienation: 10 Questions Answered
Family lawyer Allison Williams and forensic psychologist Erik Dranoff speak with Family Lawyer Magazine Editorial Director, Diana Shepherd, about the role custody evaluations play in the divorce process.
Be Wary of “Saviors”: The Guardian ad Litem in Contested Custody Cases
There is always a risk that a Guardian ad Litem will make recommendations that are not in a child’s best interest. Meanwhile, your client will have spent thousands of dollars on an investigation and report that could cost them custody of their beloved child.