When the American Bar Association's Family Law Section met in Williamsburg this Spring, one of the most popular presentations was a talk by Section Chairman Lynne Gold-Bikin of Norristown, Pennsylvania, on cross-examining the psychologist in a custody case. Starting with the new American Psychological Association guidelines for custody evaluations, Ms. Gold-Bikin urged that every one of these guidelines provides good cross-examination material. Many a psychologist jumps into a custody case eager to become an advocate and conspicuously disregards these very strict new rules.
Fundamentally, Ms. Gold-Bikin said, the purpose of an examination conducted under the guidelines is to "assess" various psychological factors, and not to make a recommendation as to custody. The guidelines, however, are far from perfect. They speak of a child's "psychological interest". What in the world, the speaker asked, is that? Can any psychologist define that term - in any meaningful way? Moreover, the guidelines use such broad terms as "well-being," and it is difficult to say just what that means. They even speak of a "resulting fit" between the child and parent, and it is doubtful whether that really means anything very precise at all. Another term is "parenting capacity," which could mean virtually anything, depending upon the social environment, traditional norms, and differing expectations in different communities. When you begin to use vague terms such as this, Ms. Gold-Bikin stressed, very much depends on what kind of an adult we are trying to raise. That is perhaps a philosophical and political question beyond the reach of judges - and psychologists.
The Pennsylvania practitioner also stressed that the guidelines are quite explicit in requiring mental health professionals never to be advocates, and always to be objective. That being so, there is still the question of what a judge is supposed to do with a recommendation when a psychologist nevertheless makes it. One can always argue strenuously that the guidelines, to which a cross-examined psychologist must agree he or she adheres, prohibit making a recommendation, or even determining a schedule for the child. It is the lawyer's job to emphasize at the outset, and at the end, that the judge is the judge, and the psychologist is not.
The limitations that APA Guidelines place on the work of psychologists in custody evaluation cases should be emphasized throughout cross-examination. One should ask what special education this particular expert has in the special aspects of this custody case. Is the supposed expert highly qualified in questions of sexual abuse, over-parenting, alcoholism, homosexuality? Also, psychologists are required to avoid "multiple relationships" with a patient. Thus a treating psychologist should not be the evaluator.
APA Guideline Number 12, Ms. Gold-Bikin explained, specifically prohibits a professional from "over-interpreting or inappropriately interpreting" clinical or assessment data. Nevertheless, it is shocking how many do. If a psychologist uses the Rorschach Test at all, or uses the MMPI at all, that is over-interpretation. The MMPI is not designed for divorce cases, and the group examined in the studies from which the tests derived did not include anyone who was going through a divorce. (The original MMPI was derived from interviews and multiple-choice tests given to mental-hospital visitors in an overwhelmingly rural and Scandinavian area of Minnesota in the 1930s and 1940s).
Guideline Number 16 requires the psychologist to maintain written records, the speaker pointed out. How often we encounter, nevertheless, the psychologist who blandly tells the cross-examiner "I keep no notes." Then there is always "I am not permitted under my code of ethics to divulge the raw test data." The fact is, the speaker pointed out, that under Guideline 16 they are obligated to turn it over.
What happens, however, when the cross-examined expert says that the APA Guidelines are "just guidelines"? A good follow-up question here, which Ms. Gold-Bikin uses, is "Then why are they published in every issue of the APA magazine?" If the psychologist says they are just "aspirational," then he or she should be asked if they are not good. At this point it is also helpful to use one's own psychological expert to help in the cross-examination. There is nothing like having another professional to give you an accurate perception of exactly how mandatory and how universally recognized these guidelines are.