Sunday, April 25, 2010

Calif.: Custody evaluators facing lost immunity

Among forensic psychologists, child custody evaluators face the highest rate of licensure board complaints. The courts request their help in the most acrimonious parenting disputes, and it is easy to get caught in the crossfire. Even though 99 percent of all board complaints are ultimately dismissed, defending oneself is stressful, time-consuming, and expensive.

Over the past 20 years, aggrieved parents have deluged psychology licensure boards with frivolous, manipulative and mean-spirited complaints. Fearing that the onslaught would discourage professionals from agreeing to assist courts in high-conflict parenting cases, legislatures in many U.S. states have increased statutory protections. In the past decade, Florida and West Virginia passed immunity statutes for court-appointed evaluators. Colorado went even further, barring licensing board complaints over child custody evaluations, requiring that complainants instead take their claims back to the original trial court.

But legislation being proposed in California would turn in the opposite direction, dismantling quasi-judicial immunity protections for evaluators and other neutral professionals who assist the courts in parenting disputes. The current version of the proposed Assembly Bill 2475, heading to the state Assembly's Judiciary Committee on May 4, would add the following section (43.94) to California’s Civil Code:

"The doctrine of judicial immunity or quasi judicial immunity shall not apply to exonerate any private third party appointed by the court in an advisory capacity based on his or her professional expertise, who provides a report or findings to the Court in a proceeding under the Family Code, with the intention that the Court act in one way or another based on such report or findings, from liability for acts performed within the scope of his or her appointment in violation of laws, rules of court, or professional standards. This section shall apply to private individuals such as special masters, minor's counsel, investigators, therapists, evaluators, receivers, bankruptcy trustees, experts, factfinders, and other persons specifically appointed by the courts in an advisory capacity based on their professional training or expertise."
I was initially suspicious that perhaps the "Men's Rights Movement" had a hand, as this increasingly powerful international lobby is making a concerted effort to reform child custody laws to favor men, and especially men accused of abusing their partners and children. Men's rights advocates claim that a feminist-run court system systematically violates men's civil rights, that a large proportion of abuse allegations are false, and that men "are victims of an unrecognized epidemic of violence at the hands of abusive wives," as reported in an expose in Slate. On the legal front, Respecting Accuracy in Domestic Abuse Reporting (RADAR) claims credit for blocking four federal domestic-violence bills, among them an international expansion of the Violence Against Women Act, according to the Slate report. Extrajudicially, movement members go so far as to applaud acts of violence perceived as retaliation against the feminist status quo.

But Assemblyman James Beall, the sponsor of AB 2475, does not appear allied with this regressive movement. Rather, he bills himself as a progressive Democrat who fights for the rights of children, families, the poor, and the disabled. Previously, he sponsored legislation (AB 612) to ban the use of Parental Alienation Syndrome -- a favorite of the father's rights movement -- from family courts.

NOTE: After I wrote this post, I did a bit more research on AB 612, and realized it was even more extreme than his new proposal. It would have allowed parents to sue any expert witness who relied upon "an unproven, unscientific theory." This would have included not only Parental Alienation Syndrome, its ostensible target, but a gamut of other evidence. After all, not much in any field of science is completely proven and uncontested. Luckily, that bill was defeated, perhaps explaining this new attempt.
-- May 8, 2010

As it turns out, AB 2475 is supported by opponents of the men's rights movement, including an organization called the Protective Parents Association. This group lobbies on behalf of mothers who say the courts impede their efforts to protect their children by giving joint or sole custody to abusive fathers. "[T]he court responds to women attempting to protect their children from an abusive father with a knee-jerk reaction, assigning gender-biased labels to women to minimize or ignore the abuse in a reckless disregard of the safety of the child," writes association director Karen Anderson. By gender-biased labels, she is referring, no doubt, to Parental Alienation Syndrome.

So, AB 2475 may turn out to be a case of failure to anticipate unintended consequences. As readers know, politicians often propose a law in a knee-jerk response to a high-profile event, tweaking existing mechanisms without adequate anticipation of potential future deployments. Ironically, the bill could open the floodgates for attacks on neutral evaluators by the very same angry men with money who most often invoke the pseudoscientific construct of Parental Alienation Syndrome in custody cases.

When I telephoned Assemblyman Beall's office today to get more background, a staff member was cagey about the bill's impetus and minimized its intended scope, saying it was meant to only apply to mediators and not to child custody evaluators. Clearly, the current language belies this claim. So far I have been unable to turn up any specific case or cases that prompted this bill. Rather, it may be a misguided effort to stop evaluators from using the construct of Parental Alienation Syndrome against mothers in custody cases.

By way of background, various types of immunity for professionals involved in the legal system have a long history. Judicial immunity (immunity for judges) was implemented on public policy grounds in England all the way back in the 17th century. Similarly, witness immunity enjoys a long history, based on the principle of encouraging people to testify honestly and without fear of reprisal. Prosecutors performing their job duties are protected by qualified immunity, while psychologists and teachers enjoy statutory immunity when the law requires them to report child abuse.

Under the construct of quasi-judicial immunity, courts across the United States have repeatedly held that court-appointed experts must have some protection from intimidation in order to feel confident and free to make neutral and independent findings. As Karl Kirkland and colleagues point out in an enlightening review, this bolsters both the integrity of the judicial process and public welfare more generally.

This does not mean evaluators can say or do whatever they want. Immunity is never absolute, nor should it be. But forensic evaluators actually face enhanced scrutiny and risk as compared with other clinicians due to the adversarial nature of legal cases. As Greenberg and colleagues point out in another excellent review (reference at bottom), errors that might go unnoticed or be addressed constructively in therapy are much more likely to be exposed through the adversary process; the opinions of forensic experts must stand up to intense scrutiny and vigorous cross-examination.

But it seems an error to allow parties whose goal is often to subvert the legal process (for example by getting an evaluator removed from a case) to drive honest, hard-working, and experienced professionals away from child custody work through unfounded harassment. Consider the data. California logged the most licensing board complaints over child custody evaluations of any U.S. state during the 1990s. Yet according to Kirkland et al's review, of all of those 1,660 complaints, only a single one -- that's right, ONE -- led to a formal finding against the psychologist.

I will try to stay on top of this issue as it develops, and keep readers posted. Please feel free to post a comment if you learn of any updates, or if you know more about the impetus for this legislation.

For a good expose of the men's rights movement, see the Slate article by Kathyrn Jones, Men's Rights Groups Have Become Frighteningly Effective: They’re changing custody rights and domestic violence laws. In researching the issue of immunity for expert witnesses, I also consulted the following excellent sources (none, unfortunately, accessible online):
Photo: "The Dads Who Fought Back" (2006 video)

9 comments:

  1. The bill is supported by CA fathers and mothers, and advocates for each.

    It is aimed at unethical private members of CA divorce "cottage industries" (and there are many) who profess to be experts, seek court appointments, charge parents tens of thousands of dollars, AND, in the process, "violate laws, rules of court and professional standards". You all know these hired guns are out there, nationwide, largely unregulated, and making lots of money, at the expense of devastated divorcing families.

    Bad apples spoil it for the whole bunch. Blame the bad apples, not CA court victims (mothers AND fathers), their advocates, or concerned CA legislators for this turn of events.

    Nationwide, the public is mad as h***, and they aren't going to take it anymore. If the divorce driven "cottage-industries" won't regulate their own, the public will do it for them -- whether it is via this bill, or the next, or voter initiatives. The party is over. It is only a matter of time.

    Period. End of Story.

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  2. Fascinating that you cite the following in your argument against the bill:

    "California logged the most licensing board complaints over child custody evaluations of any U.S. state during the 1990s. Yet according to Kirkland et al's review, of all of those 1,660 complaints, only a single one -- that's right, ONE -- led to a formal finding against the psychologist."

    This review only adds ammunition to our arguments for supporting this critical legislation- the self-policing licensing boards are failing miserably in their protection of the public from lawbreaking court appointees.

    As a prime sponsor of this bill, I can assure you that our organization has received detailed documentation from many hundreds of California family law cases that proves that private court appointees such as custody evaluators, minors counsel, therapists and special masters, to name a few, are routinely violating state laws, local rules of court and the standards of their professions.

    The forensic psychology industry would do well to embrace this and other attempts to finally create some meaningful accountability for your profession. That way you can avoid the embarrassing headlines about how pet cats are receiving the same mail-order credentials as some of the California courts' most trusted forensic psychologists.

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  3. I am a child and family psychotherapist. I have one case in which a mother and child, who were abused and traumatized when I began seeing them. Their attorneys had a hired a custody evaluator who said they were "not victims of domestic violence," in his opinion, even though he gathered reams of evidence to the contrary. The idea that the custody evaluator could determine whether or not they were victims of domestic violence, a year and a half after I began working with them is utterly crazy at least, and highly unethical at most.

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  4. How disgusting that only one complaint was taken seriously. When law goes back to using scientific forensic evidence instead of fantasy and hearsay then both mothers and fathers will be better served. Psychology is a pseudoscience, the opining by these people adds nothing to family court but more expense, the ability to obscure real evidence and the rape of justice by opinions that are bought and paid for.
    The psychologists have done a great job covering up child abuse and domestic violence by forcing people to "discuss" it in family court instead of prosecuting it like the crime that it is.

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  5. Karen. I agree with you on a lot of things. A lot. I respect you and I respect your blog. But I think you are just flat out wrong on this topic. While I don't belong to any particular men's rights groups I am sympathetic to their aims.

    The fundamental problem is that independent should mean neutral but it rarely if ever does. As a former CASA volunteer many years ago I can testify first hand how many so-called experts came in with a very obvious and clear ax to grind. I don't think that all of them are men bashers; I've seen the opposite. But over time I do think that men have gotten the short end of the stick.

    Like others, I too note that the fact that only one professional got disciplined is not a sign that everyone else is crazy but a sign the board won't police it's own. It's a problem in other areas of psychology too, not just here.

    More fundamentally I think it would be wise for you to take a step back for a moment. If people who you see as liberals and people who in other areas admire and respect you, disagree with you on this topic then maybe....just maybe....if you have an open mind....you might consider that there is at least some merit to their claims and that they are not just a bunch of loonies as Slate would have it.

    Having said that, I don't know if I support this specific bill or not. I think it's a very difficult subject. My own opinion is that the real flaw lies in our system of legal education. Most judges have no training in psychology and thus they have no way to adequately review whether a guardian ad litem has fulfilled their obligation to do a neutral review of not. They either accept what the expert says uncritically or if they have doubts they hope that the adversarial process sorts it out. That's an inherently flawed approach.

    Daniel

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  6. It may be that in the 90's there was only ONE supported disciplnary action (which is a sad commentary). Given the bias in the family courts by mediators and evaluators, this shows how important it is to expose the family court personnel who are using junk science, not following appropriate guidelines, and other blatantly inappropriate behaviors.

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  7. Emad TadrosApril 28, 2010

    The most logical way to convey this AB 2475 Bill is to ask our state and the nation as to whether or not they like to go to a doctor he/she is not held liable for what they do? That is why medicine is the best practice in the US. Any and all doctors are and will continue to be held 100% (not any less) liable for what they do until the last minute they practice, for a reason. "Liability Fosters Good Care."
    If you remove this liability, you create a world of careless and cold blooded sociopaths and un-professionals who are only self serving.

    As a result losing the homes and college funds and parents fighting each other in the Court will never stop. And if ANY this will get worse as long as those fraudulent court ancillaries are cut lose on the public with no accountability, whatsoever.

    "Unsupervised Assets Teaches Theft."

    How can we care about our own health and never care about the best professional decisions for our children? If we inspire for a great country with great generations, then let us do what is professional and responsible for our children and families.
    Emad Tadros MD

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  8. Re: "Karen. I agree with you on a lot of things. A lot. I respect you and I respect your blog. But I think you are just flat out wrong on this topic. " I agree with this poster VERBATIM. You do have a wonderful blog that I read assiduously and for which I am most appreciative. But on this topic, I must say, your views really surprise me. For one, "expert" witnesses need to be held accountable for their testimony just as D.A.'s and judges SHOULD be (but are not). For another, there certainly IS a "gender-feminist" (as opposed to "equality" feminist) infiltration into the courts and therapeutic industries (I should know, I've been working within it for 25 years). I can tell you that female D.A.'s and judges are, by-and-large, DEATH for any man accused of a sex crime. Of course, there are lots of male D.A.'s and judges this could be said of, but I'm talking "on-the-whole". Yeah, there's some nuts in the men's rights movement but let's compare that with the women's rights movement. Don't think there are any sadistic zealots over there? Give me a break! And there's also a lot of mean and vindictive ex-wives and mothers out there, too just as there many mean and vindictive ex-husbands and fathers. I think one of the most important take-home points is that we must not continue to disseminate justice based upon gender, or any other, profiling. Keep up the otherwise excellent work, Karen.
    -Another David

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  9. AnonymousMay 20, 2010

    As borrowed from the Liz Library, Liznotes article titled, "Reevaluating the Evluators"
    -Hiring a custody evaluator in a family law case is not like the hiring of a forensic expert to determine how many feet the car slid with the brakes on, or whether a particular medicine caused a patient's illness. It usually does not expedite cases, reduce costs, simplify litigation, help children, result in better judicial decision-making, or result in better child-rearing outcomes. The bottom line is that at best it's unnecessary -- there are just not that many possible custody choices to choose from in the usual case, and a good custody decision is not that difficult to make. Somehow that happens in the many, many cases that either are settled early on by the parents themselves, or are decided by a judge when neither litigant has a big financial pot for these helping professionals to party down on.

    It's time we stopped pretending.

    Cutody Evaluations should only be used as a last resort

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