Empirical Forensic Model: Conjectures and Refutations by Timothy M. Tippins and Jeffrey P. Wittmann appeared in the New York Law Journal Online yesterday. The issue is not new, with the same authors writing about it last year. What we are not seeing are many Daubert challenges locally nor specific motions to delineate what the task at hand is ordered to be for the psychologist appointed by the court. Practitioners need to be aware in the child custody litigation arena that there is little scientific data to support evaluators making ultimate recommendations. Experienced practitioners, after working up the custody case, can usually pretty well predict how their client will fare in such an evaluation and what the recommendation is likely to be, especially when the evaluators' work has been seen in many other cases, so there may be times you want a recommendation. (I have long said lawyers should receive a prescription pad with their license!) If you are opposing such a party, or you know your client will fare poorly, or you just don't know, there is plenty of ground to exclude an opinion on the ultimate question. The better practice is, however, to move that no such recommendation be made. Once the cat's out of the bag, well, ...
Here are some quotes from the New York Law Journal article by New York attorney Timothy M. Tippins and Dr. Jeffrey P. Wittmann:
"Simply, there is no evidence whatever which shows that evaluators can competently and accurately make the prediction implicit in a best interest recommendation. No existing responsible scholar or commentator suggests that there is. Not even defenders of the status quo claim that such research exists. If it existed, they would cite it. They don't. They do not-and cannot even cite to research that proves a mental health professional's opinion on the decisive best interest question is any more accurate than the opinion of a layperson. Instead, they argue assumptions and indulge pretenses of superiority….
Evaluators are opining in a judicial forum in which human liberties can be truncated. It is therefore their burden to show that their predictive powers are "probably" superior to anyone else's. This is especially true given the long lineage of psychological notions once in vogue that have since been cast into the waste bin of history after research revealed them to rest upon sand….
Prior to our introduction of the EFM outlining the empirical and ethical problems with custody recommendations, a host of learned scholars from within both the mental health and legal professions had voiced profound concerns about the lack of empirical grounding of custodial conclusions expressed by forensic evaluators, some even calling for an outright ban on mental health testimony in these cases. Additionally, even as the commission was completing its work, three towering figures within the field of forensic psychology published yet another substantial journal article that concluded that evaluators should stop rendering opinions about which contestant should be the custodial parent.
At its core, this is a debate about intellectual honesty and dodging the fundamental issue of validity furthers neither the debate itself nor the rightful interest of litigating families to an adjudication that rests on something more substantial than the subjective beliefs, idiosyncratic logic, intuitive emanations, guesswork, and personal value judgments by psychological experts. Fortunately for those families, as recent scholarship suggests, this "journey" is far from over. As one contemporary scholarly text succinctly states, "In business, the motto is 'show me the money.' In science, it is 'show me the evidence.'" Until those who advocate for custody recommendations produce evidence of their validity, the debate, both in scholarly journals and in adjudicative forums, will and must continue.
Timothy M. Tippins conducts a national lawyer-to-lawyer practice as consultant and special counsel in contested custody cases. He is an adjunct professor of law at Albany Law School. Jeffrey P. Wittmann provides trial consultant services to matrimonial law firms nationally through the Center for Forensic Psychology and is an adjunct clinical professor at SUNY-Albany"
Their article, online at the link above, is full of citations.