Criticism of Custody Evaluations

As criticism mounts, there is a concerted effort in the community of MHPs to call for more "multidisciplinary efforts at communication," and to frame the rising problems as one of individuals' failings, not those of inherently flawed processes, or as shortcomings inherent in the legal system (or the laws themselves), not those of science, or as confusion created by political interest groups, and not confusion created by an incompatible mix of jurisprudence with opportunism as MHPs from another milieu altogether seek to ply their trade (apply their research) in the justice system because it is a lucrative source of income. MHPs are assumed to be primarily concerned about the wellbeing of strangers' children. MHPs who claim to be "scientists" are presumed to be neutral and objective, bound by scientific truths, scrupulously honest, and never motivated by their own agendas and biases. It is assumed that they would not be advocates unless somehow seduced by others (lawyers) for whom such advocacy is a deliberate or ignorant modus operandi. It is implied that the solution to the occasional anomaly lies in scientists' own self-regulation, and/or in training judges to exercise better oversight as "gatekeepers".

The blame, of course, lies everywhere ELSE. And the question is seldom asked whether and to what extent we even need this "science" -- or any MHPs for that matter -- in our courts, or should be diverting the resources of the judicial system toward the tedious efforts at discerning which "scientist" or "research" or type of MHP involvement is valuable. The question is seldom asked whether there are any overarching benefits to litigants from anything therapeutic jurisprudence has to offer, or whether better child custody decisions are made because of it, or whether children end up happier and better adjusted as a result of it. The answer to these unasked questions is quite probably not. Very little research has ever taken a stab even at beginning to answer these threshold questions, and so they conveniently are ignored. The omission itself constitutes a form of advocacy and propaganda.

See, e.g., the practitioner who endorses "parental alienation syndrome" and went even further, concocting "malicious mother syndrome" hypocritically claiming in a judges' publication, after a negative Florida appellate decision condemning the exhorbitant costs of unnecessary MHP "investigating" in the runaway case Higginbotham v. Higginbotham, 857 So. 2d 341, 341 (Fla. 2d DCA 2003), that "more than a decade ago" he had been reviewing the field and calling for better science: Ira Daniel Turkat, On the Limitations of Child-Custody Evaluations, 42 Ct. Rev. 8 (2005), available on-line at http://aja.ncsc.dni.us/htdocs/publications-courtreview.htm. (Aw, come on Ira.)

And see Janet R. Johnston, Introducing Perspectives in Family Law and Social Science Research, 45 Fam. Ct. Rev. 1 (2007). ("Despite these generally accepted guidelines, the problem remains that, in politically charged areas of divorce and child custody, too many social scientists and legal scholars are seduced -- wittingly or unwittingly -- into becoming advocates for political positions and social policies rather than being objective or balanced reporters of research findings... I have identified seven common techniques or strategies employed in the field that certain advocates use to destroy the standing of research data and researchers whose data they do not like, half of them at times found in peer-reviewed journals and used, at times, even by well-known and well-respected scholars. These I have named: (1) The Strawman, (2) Cherry Picking, (3) Leading Authority Declarations, (4) Scholarly Rumors, (5) Character Assassination, (6) Boycott the Researcher, and (7) Stalking and Hit Lists. Although I refer to these as techniques or strategies, I do not want to imply that they are always conscious, deliberate, or manipulative ploys. Rather, it is quite possible that those with strongly embedded frameworks for viewing and acting in the world will honestly construe other viewpoints in terms of their own using these or similar modes of cognitive distortion.)

from "Reevaluating the Evaluators: Rethinking the Assumptions of Therapeutic Jurisprudence in the Family Courts"