Tuesday, January 19, 2010

Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge's Guide

The Role of Psychological Testing

by National Council of Juvenile and Family Court Judges


Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge's Guide
(c) National Council of Juvenile and Family Court Judges
2004, revised 2006
Pages 20-21
Full copy (pdf) here

In the rare case in which it is a relevant and necessary aspect of an evaluation, you may decide, or the expert may determine, that psychological testing would provide a helpful supplement to the information obtained through interviews and examination of the written record. This is an area to approach with caution.[38] If psychological tests are used, the test(s) should be administered and interpreted by a psychologist who has expertise in the use of psychological testing in the context of contested child custody cases with allegations or evidence of domestic violence. Generally, however, psychological testing is not appropriate in domestic violence situations. Such testing may misdiagnose the non-abusive parent’s normal response to the abuse or violence as demonstrating mental illness,[39] effectively shifting the focus away from the assaultive and coercive behaviors of the abusive parent.

The relevant questions to ask are the following:

  • What is the test being used to measure?
  • How is the test relevant to issues of custody and visitation?[40]
  • Is the test valid for the purposes for which it is being used, and is the expense justifiable given the test’s limitations?
  • Is the test recognized and accepted by experts in the field?
  • What are the qualifications necessary to use the instrument?
  • Does the expert have those qualifications?

In determining the relevance and reliability of psychological testing, consider the following:

  • Research literature indicates that “there are no psychological tests that have been validated to assess parenting directly.”[41]
  • No psychological test can determine whether or not a person has been an abuser or abused.[42] There is no single profile of a victim or a perpetrator of abuse.
  • The more tailored tests, developed in the past decade to address the questions most relevant in the custody context, such as the Bricklin Perceptual Scales (BPS), Perception of Relationships Test (PORT), Ackerman-Schoendorf Scales for Parent Evaluation of Custody Test (ASPECT) and Parent Awareness Skills Survey (PASS) tests, have not been evaluated with enough rigor to establish their validity or reliability. These tests do not provide answers. At best, they raise hypotheses in the mind of the evaluator to be validated or invalidated in subsequent explorations.[43]
  • The standard psychological tests measuring personality, psychopathology, intelligence or achievement, including the Minnesota Multiphasic Personality Inventory (MMPI-2), Million Clinical Multiaxial Inventory (MCMI-III), Personality Assessment Inventory (PAI), Rorschach Inkblot Test, Children’s Apperception Test (CAT), Thematic Apperception Test (TAT), Wechsler Adult Intelligence Scale (WAIS-III), and Wide Range Achievement Test (WRAT-3), do not directly address the psycho-legal issues relevant to most children, or parents’ child-rearing attitudes and capacities.[44] In a particular case, a standard test may offer information that is related to parent-child interactions, parent functioning or child functioning; but that information should be included in the evaluation only if the examiner makes clear the connection between the test results and the issue that is legally relevant in the custody context, and only if the test results are impirically [sic]supported and integrated with other data about real-life behavior.[45]
  • Some of these standard tests may also measure and confuse psychological distress or dysfunction induced by exposure to domestic violence with personality disorder or psychopathology. While there may be cases in which trauma induced by abuse has a negative impact on parenting in the short term, it is critically important not to attach a damaging label prematurely to a parent whose functioning may improve dramatically once she or he is safe, the acute stress has been alleviated, and the trauma treated.[46]
  • Specific tests to assess for trauma (Trauma Symptom Inventory (TSI), Draw-a-Person Test (DAP) and others) may be helpful in determining treatment goals and facilitating the healing process of the victim parent and children, but they are not appropriate to determine whether traumatic incident(s) occurred.

To read full report (pdf) click here

38 See Daniel W. Shuman, The Role of Mental Health Experts in Custody Decisions: Science, Psychological Tests,
and Clinical Judgement
[sic], 36 FAM. L.Q. 135 (2002) (stating that “[a]s a matter law and as a matter of science, a test should be
both relevant and reliable before its use is sanctioned in a particular setting”).

39 See Nancy S. Erickson, Use of the MMPI-2 in Child Custody Evaluations Involving Battered Women: What Does Psychological
Research Tell Us?,
39 FAM. L.Q. 87 (Spring 2005). The author emphasizes the need for child custody evaluators who use the
MMPI-2 psychological test to consider the context of the individual’s history and current situation in their clinical interpretations.
Such context includes a person’s age, intelligence, social or ethnic class, educational level, health status, medication
influences, prior life traumas, and current situational difficulties (p. 94, citing ALAN F. FRIEDMAN ET AL., PSYCHOLOGICAL
ASSESSMENT WITH THE MMPI-2 (2001)). If taken out of context, the MMPI scores of battered women could lead mental health
evaluators to misdiagnose them as severely mentally ill, even though they may actually be suffering from the trauma of the
violence (p.102).

40 See, Timothy M. Tippins & Jeffrey P. Wittman, Empirical and Ethical Problems with Child Custody Recommendations: A Call
for Clinical Humility and Judicial Vigilence,
43 FAM. CT. REV. 193, 204 (2005) (stating that “there is no evidence in the empirical
literature that current interview protocols, traditional psychological tests, or custody-specific tests are in any way able to reliably
predict child adjustment to different access plans…”).

41 Shuman, supra note 38, at 144 (citing Vivienne Roseby, Uses of Psychological Testing in a Child-Focused Approach to Child
Custody Evaluations, 29, FAM. L.Q. 97, 105 (1995)).

42 See e.g., Aldarondo & Mederos, supra note 12, at 2-11 (stating that it is impossible to diagnose battering in the same manner
that one diagnoses medical conditions such as cancer and anxiety disorders; expounding further that a determination as
to whether someone is a batterer is not a clinical decision, but rather “a determination based on reviewing information provided
by collateral sources, the alleged abuser, and victims”). Because psychological testing cannot identify an abusive parent,
such testing may instead allow an abusive parent to use the absence of domestic violence findings in the test results to
argue that the test proved that the abuse did not take place.

43 Shuman, supra note 36, at 144 - 154.

44 See Jonathan W. Gould & Hon. Lisa C. Bell, Forensic Methods and Procedures Applied to Child Custody Evaluations: What
Judges Need to Know in Determining a Competent Forensic Work Product
, 51 JUV. & FAM. CT. J. 21, 24 (2000) (stating that no
personality test directly measures parenting or parenting competencies. The authors also recommend the use of traditional
psychological tests only when specific problems or issues that these tests are designed to measure are relevant to the cases,
(2d ed. 1997)).

45 See Gould & Bell, id. See also Jonathan W. Gould & David A. Martindale, A Second Call for Clinical Humility and Judicial
Vigilence: Comments on Tippins and Wittmann, 43 FAM. CT. REV. 253 (2005) (stating that psychological assessment tools are
often not valid for custody evaluation, are often not empirically derived, and are “often more educated guesses than truth”—
cautioning that mental health professionals need to be careful in presenting their data and opinions so as not to mislead the

46 See AM. PSYCHOL. ASS’N, supra note 2, at 100 (1994) (cautioning that psychological evaluators who are not trained in
domestic violence may ignore or minimize the violence and attach inappropriate pathological labels to women’s responses to
chronic victimization); see also Erickson, supra note 39.

[vodpod id=ExternalVideo.917137&w=425&h=350&fv=]

Technorati Tags: ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

No comments: