Professionals Need Protection in Child Custody Evaluations and Social Studies for the Court

Donna R. Milburn, Ph.D., ABPS


Introduction

As a clinical psychologist who has been providing evaluations for the family court system in Texas for over twenty years, this evaluator has witnessed what appears to be a deterioration of services being provided to the courts and to the attorneys and their clients over the years.  The highly litigious situation that exists in the court system with the parents or guardians of children is ripe grounds for further litigation against the expert professional being ordered to evaluate these cases.  The fourth most common complaint with associated disciplinary actions by APA Ethics Committee between 1994 and 2003 involved child custody situations (Bennett, et al., 2006).  Each state has a governing board that regulates the licenses of mental health practitioners and that tries to protect the parents and the children from poorly performed or inexpertly involved professionals.  Unfortunately, there does not seem to be an entity that assists in protecting the professional from retaliation from the disgruntled parent or guardian.  Often these high-conflict cases involve individuals who have recognized psychological problems such as borderline or antisocial personality disorders or psychotic disorders that are likely to lead to continuing problems for the professional even after the evaluation is complete.  The personality traits of individuals with these types of diagnoses often include having interpersonal conflicts with others, and court-ordered evaluators are not an exception (APA-med, 2000).  The disgruntled party in today’s societal use of the internet then might go onto the internet and post slanderous or libelous statements and make claims against the mental health professional that are potentially damaging to the public’s view of that professional.  Because many professionals providing these evaluations or court-ordered therapy for the children also have private practices where they are helping other members of the community with treatment, the posting of such material or opinions can be detrimental to the other services being provided.  When existing clients read the material being posted, they may begin to engage in posting retorts or positive statements about their doctor or counselor who is providing them with services.  This then becomes a potential ethical dilemma for the mental health professional because the therapy being provided needs to be based on the treatment the client needs, not on the reactions to posted statements by disgruntled parties from a litigious court case (APA, 2002).  When potential future clients read the material being posted, they may decide not to receive services with that mental healthThe professional can file legal action against the parties engaged in slander or libel, but the cost and time involved in this can be high, although some slander and libel cases for on-line comments has now begun to be won in Texas civil courts for large amounts of money (Betz, 2012).


The disgruntled party may also file a complaint against the mental health professional with the regulatory Board or agency that exists to protect the provision of services to the public.  While this agency needs to exist and is a vital part of making sure that the public is not harmed or at risk for being harmed by a professional’s unethical behavior or misconduct, the resulting situation is now that ethical, well-performing professionals are faced with continual false or unfounded complaints, time-consuming record copying and responding to the complaints, and needing to hire their own attorney to review and manage their responses.  The end result has been psychologists, social workers, and licensed counselors who no longer agree to provide these evaluations or therapy services to the families involved with a court conflict or, when they are involved, “water-down” their opinions excessively.  Thus, families sometimes cannot get good mental health professionals to be involved in providing treatment or who will sometimes not provide accurate diagnoses of the parties even when warranted, will not give honest opinions about the safety and welfare of the children, and will not clarify for the court serious problems that exist in some of these families.  Family law judges then find themselves trying to read between the lines of a report or court-room testimony to guess what the evaluator or therapist is actually trying to say or potentially allow experts to give testimony that is not based on the most accurate information that would pass Daubert or Kumho requirements (Grove & Barden, 1999; Hagen, 1997).  Everyone loses in this situation.   A change in the laws associated with court ordered evaluations and court ordered therapy in family court litigation would be extremely beneficial to improving the services from mental health professionals.


There needs to be a clarification of the difference between whether or not the court or the attorneys are requesting a psychological evaluation or a social study. Court-requested psychological evaluations are not the same as Court-requested social studies.  A psychological evaluation needs to be completed by a licensed psychologist who has experience in providing these services and who is following the ethical guidelines established by their regulatory agency and the American Psychological Association (APA, 2002).  This evaluation should usually include interviews with both parents unless impossible, interviews with all the children unless impossible, a series of psychological tests that are considered objective and are subject to reliability and validity testing, and a review of collateral information that should include both professional (previous counselors, doctors, teachers, etc.) and non-professional (family members, neighbors, friends, etc.) contacts when possible (Rohrbaugh, 2008).  The evaluator, however, should not be responding to a requirement about the number of people or the specific people who should be contacted.  There is frequently a complaint by the person who did not like the outcome of the evaluation that the examiner did not talk to the right person or did not check with other persons provided on their list of references or collateral contacts.  An evaluator could take years completing an evaluation if a specific requirement for all of these contacts is passed into a law.  What happens when the contact refuses to respond to the evaluator?  There are times when collateral contacts refuse to return a phone call to discuss the parents or the children, perhaps because they do not want to be a part of a high-conflict court battle.  There are times when family members may lie directly to the evaluator about events so that their daughter or son or sister or brother wins the evaluator’s recommendation for custody of the child or children.  There are examples of employees, nannies, housekeepers, and friends of the parent who may lie directly as well because they do not want to lose their jobs or have to be interacting with the parent in the future if they tell the truth about a problematic parent.  And then there are school teachers who may not want to be in the middle of custodial conflicts and worry that, if they are honest with the evaluator, their words will come back to haunt them in a report that is filed in court.  An evaluator should be given the final judgment as to who needs to be interviewed and who does not (APA, 2011).  If the evaluator has reviewed school records, child protective services complaints, medical records, police records, etc. and this collateral information has been used as part of the basis for the professional opinions rendered, this information is sometimes sufficient for a good evaluator.  Children, parents, and the court system together are generally not benefited by an evaluator taking over twelve months to complete an evaluation and recommendations to the court, which has been known to occur. 


A social study generally needs to be completed by a licensed mental health professional who is following the ethical guidelines established by their respective boards for practice.  A social study should include home visits where the children are seen in each environment with the individuals who reside in that home as well as interviews with the parents or guardians, interviews with all the children unless impossible, and a review of collateral information that should include both professional (previous counselors, doctors, teachers, etc.) and non-professional (family members, neighbors, friends, etc.) contacts.  A psychological evaluation is often more appropriate when there is an expressed concern that one or both of the parents or one or more of the children have some form of mental, educational, psychological, psychiatric, or behavioral problems.  A social study is often more appropriate when there is a question of the best environment for the child or children but where there is not a significant concern regarding mental health issues where psychological testing results would be considered beneficial.  A court order requiring both a social study and a psychological evaluation sometimes occurs when the court or attorneys believe that the issues involved are complicated and that mental health issues do need to be evaluated in addition to a social study being completed. 


New laws should be considered in each state to provide some protection for the mental health professionals working in the family court system.   In Rule 11 Agreements and Official Court Orders, this psychologist asks for services to be provided with the following wording in the signed Order:


The parties have agreed to the entry of the following order that shall be effective immediately and shall be binding on the parties; on their agents, servants, employees, and attorneys; and on those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise.  The requirement of a bond is waived.  IT IS ORDERED that ____________ and _____________ are enjoined from:


1.Filing any complaint with the Texas State Board of Examiners of _______and/or initiating or participating in any legal litigation involving ________ in connection with his/her services provided to___________________and________________and/or____________without prior consent from this district court.


The Court finds that the parties have agreed to the entry of the following temporary injunction.  The temporary injunction granted below shall be effective immediately and shall be binding on the parties; on their agents, servants, employees, and attorneys; and on those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise.  The requirement of a bond is waived.  IT IS ORDERED that ____________ and _____________ are enjoined from:


1Posting any information on any internet site regarding ____________and/or the subject matter of the services rendered by ______________ to __________, _________ and/or ___________; and


2.Releasing information to third parties regarding the services provided by ______________ to __________, ____________ and/or __________ pursuant to this Order. 


        The Court finds that the parties entered into a Confidentiality Order which was signed by this Court on ________________.  The parties agree and IT IS THEREFORE ORDERED that the services of ________________ rendered to the parties pursuant to the terms of this Order shall be included as “confidential information” as that term is used in the Confidentiality Order and that the Confidentiality Order remains in full force and effect until the entry of the Agreed Final Decree of Divorce.  The parties further agree and IT IS ORDERED that the relevant terms of the Confidentiality Order shall be included in the Agreed Final Decree of Divorce. 


The passing of laws with the above type of wording might give some protection for the court-appointed professionals and allow these professionals to provide thenecessary services without fear of retaliation.  Protection from false complaints being filed with governing boards, protection from capricious litigation, and protection from slanderous retaliation would be helpful in creating an environment where the court-appointed experts can give their opinions with the focus of their work being on the best interest of the children and not on the avoidance of retaliation. 


An additional benefit to the boards or regulatory agencies would also occur in that their valuable time and energy could be devoted to examining cases where harm to the public by a professional may actually be occurring.  By giving the district judge the power to approve the filing of a formal complaint or lawsuit against the mental health professional, false or nuisance complaints will be lessened while factually-based complaints would continue on to the governing agencies.  By giving the district judge the power to impose consequences for the posting of slanderous or defaming statements being made on the Internet against a court-appointed mental health provider, these providers will likely be more willing to perform their services in an ethical and beneficial manner rather than refusing to treat children or family members who are involved in court litigation or refusing to provide opinions that would truly be in the children’s best interests out of an attempt to protect themselves from these unneeded or unwarranted reactions.  Mental health professionals are needed to assist the families and court system in high-conflict cases.   Laws need to be developed to assist those professionals in providing the best services possible as this benefits the individuals involved as well as society at large. 


While studies continue to be published in the areas of custody-evaluations and the populations involved, further research is always needed.  The public and profession would benefit from continued research on the personality characteristics that are most likely to result in malicious behavior toward the mental health professionals, attorneys, and courts and ways to better manage this malicious behavior.  Research should also investigate what the correlation is between these individuals with problematic personality or character traits and the number of actual harmful behaviors toward the children involved.  A question exists as to whether or not there are more documented incidents of physical, sexual, emotional, or psychological harm by the care-giver to the child/children predating the forensic evaluation in cases where the care-giver later engages in malicious or vacuous complaints or lawsuits following the conclusion of the forensic report.



About the Author:



DONNA R. MILBURN, Ph.D., ABPS is a private practice clinical psychologist who has provided clinical therapy services, psychological and neuropsychological evaluations, and forensic psychological evaluations and social studies in the Texas courts. After graduating from the University of Texas Southwestern Medical Center at Dallas with her Ph.D., she began working with a variety of populations providing mental health services to the community. Forensically, Dr. Milburn has provided assessments for hospitals, schools, juvenile justice systems, family courts, civil courts, and criminal courts. She enjoys working with a wide range of people and providing supervision to new mental health professionals who want to gain further training toward helping the community. Please visit her website www.drmilburn.com for more information.




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