Legal systems need deeper understanding of psychologists

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Gregg Herman

Forensic psychology frequently plays a critical role in family law actions, most often when parents are embroiled in custody and placement disputes. The court appoints a psychologist; tests are administered; and several weeks later, the expert produces a report, often in painstaking detail.

It can be difficult for a client to read, even when it all seems accurate and plausible. (I’ve often hoped, as I read a report on someone else’s psychological state, that I am never put under the microscope in that way.)

This article, part of a series examining the relationship between mental health therapists and family law, will examine the role of the evaluating psychologist.

In a typical custody or placement dispute, the key decisionmaker is not the guardian ad litem for the children, or even the judge hearing the case. Practically speaking, the ultimate decision is made by an evaluating psychologist who subjected the parties and the children to psychological tests and evaluation, and then issued a written report. The GAL almost always adopts the psychologist’s recommendation and the court, in turn, almost always adopts the recommendation of the GAL.

The key question is whether the role of the evaluating psychologist falls within the realm of their training and expertise. In states which have adopted the court-as-gatekeeper role as established in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), this question has led to challenges to the admissibility of this testimony, although, to my knowledge, no state has yet barred such testimony. In states like Wisconsin, which have not adopted Daubert, courts routinely allow this testimony as a matter of course.

Certainly, where the issue is a psychological diagnosis of a parent, the use of a forensic psychologist is critical. While not perfect, the tests and clinical evaluation can uncover psychological issues that are critical to parenting.

Other than the bottom line, the extent to which lawyers pay attention to these evaluations is questionable. Especially when the lawyer is serving in the role of guardian ad litem for children, the evaluation can reveal important information to the eventual recommendation. Yet, fully understanding the nature of testing and the application to the psychologist’s recommendations requires an understanding of the nature of the role of the evaluating psychologist.

Moreover, some cases do not require such an evaluation at all. Frequently, neither party suffers from a mental illness. Psychological testing frequently reveals both parents to be within normal parameters and capable of having periods of physical placement.

As one highly respected family law attorney, Charles Phillips of Phillips & Gemignani S.C. in Waukesha, puts it: “Psychologists have opinions, but generally they are unrelated to scientific analysis. The placement schedule which meets the ‘best interest’ of a child is clearly determined by, and the obligation of, the trial court. While experts may be qualified to have valid opinions with respect to amounts of time and frequency of access by parents to children in a particular case, there is extremely limited scientific data on the effects of any particular placement schedule generally as compared to how children deal with the schedule.”

Wisconsin allows a trial court the discretion to deny psychological testing, even where requested by a party. See Kettner v. Kettner, 2002 WI App 173, 256 Wis. 2d 329, 649 N.W. 2d 317. While it is easier for a GAL or the court to have an evaluation to “hang their hat on,” before recommending or ordering them, the GAL and the court need to consider whether the needed recommendation is consistent with the analysis such evaluations provide.

These issues, the necessity of evaluations and their applicability are too important to be relegated to a “pass-the-buck” mentality, or just reading the last page that gives the recommendation, while ignoring the evaluation that led to it.

The legal system needs to have a deeper understanding of psychologists, their training and the limitations of their expertise.

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. FamLawUpdate, a free e-mail service of Loeb & Herman, is available by going to www.loebherman.com or sending an e-mail to [email protected].