Gary S. Aumiller, Ph.D.

Diplomate in Police and Criminal Psychology

Executive Director – Society for Police and Criminal Psychology

There is a study taught in social psychology classes showing that if you wanted to convince an un-intelligent audience of your point, you only give them one side of the story. If your audience is intelligent, you need to give them both sides of the story (Sinha and Dhawan, 1971). The intelligent person wants to come to his own conclusions and draw his own analysis. When it comes to the situation for forensic psychological evaluation in divorce cases, some persons have decided that lawyers and judges need only one side of the story. They present an integrated system of change that focuses only on what is missing in psychology and where the forensic evaluation falls short. Abuses are brought up dating back to the days of Freud and what gets negated is the service a forensic psychological evaluation can serve in the court system during the divorce process. No one talks about what is not missing in forensic psychology. This article intends to give an attorney or judge some understanding of the issues in claims against the science of psychology and provide some useful references to answer a Daubert-Frye hearing request.

Forensic evaluations are most frequently requested in divorce proceedings when there are claims by one of the litigant’s counsel, the law guardian, or the judge believing that there are psychological issues at play with one or both of the parties. By way of example, there could be neglect or abuse of the infant issue, parental alienation, a re-location issue, domestic violence, or concerns over the unfitness of one or both parents. In a perfect world, it is best for the psychologist to start with no misconceptions or biases about the case, and the data collecting begins when the litigants call and set up appointments.

The requisite test for the courts in determining custody is the "best interest of the child." Some psychologists equate the best interest of the child to mean the "least pathological parent." Others interpret the best interest of the child to be the "child’s wishes" if they are within reason. Still others would say the best interest of the child is the parent that has been the "main caretaker." As it has been often pointed out by many attorneys, the "best interest of the child" is a legal term, not a psychological one. To maintain the science, the psychologist must depend on the research to tell him which parent is least likely to impart a transgenerational disorder to the child, or which parenting arrangement will not make the child pathological, causing undue psychological stress, anxiety or precipitate other disorders. As can be seen below, there is guidance for choosing the parent least likely to produce a problematic child in the body of existing psychological research. Numerous references that attorneys or judges can use will be given in this paper. But a clear understanding of some specifics about the science of psychology is necessary first.

The Nature of the Science of Psychology

Probability and Experimentation Most applied sciences are probability sciences. What happens in the laboratories can only be an estimate of what will happen outside the laboratory. Despite what many believe, when a patient goes to a medical doctor he gets an "estimate" or an "educated guess" as to what his diagnosis is. The patient’s treatment is designed around tests and evaluating symptoms, all things that the medical doctor does to reduce the possibility of error and hopefully find what will make the patient healthy. When a physician diagnoses you with an ailment he is saying the probability is high that the patient’s problem is "X" because the physician sees all the symptoms from other people who have had "X." From there a treatment plan is designed to give the best chance of an effective remedy.

Medicine is also an experimental science meaning the medical doctor will experiment with certain medications or perhaps an operation to see if these alter the patient’s medical issues. Any good physician will check to see if the medication is working or whether it has side affects. After the experiment, the treatment plan may be altered or curtailed. This is an accepted process in the medical profession and although people delude themselves into believing medicine is more exact, the qualities of probability and experimentation are blatantly apparent when a patient has a problem that is not diagnosed quickly. And it can be frustrating when medicine has some glitches such as those currently found with medications like Viagra, which is alleged to precipitate blindness, or Vioxx which may increase cardiovascular risk. This is what happens in experimental sciences, but generally it is accepted because the benefits are strong.

Psychology has all the characteristics of the probability science and the experimental science, but it also has the demarcation of being a relatively new science. This is especially in the function of the forensic custody evaluation where the real science part of the equations is less than 30 years old. When collecting data through a custody evaluation, the forensic psychologist attempts to increase the "probability over chance levels" that a good determination can be made by the court. The court decides that the psychologist has a better opportunity of increasing this probability because there are psychological factors functioning in the case. The psychologist uses the skills and science of psychology to assist him/her in the collecting, analyzing and interpreting data. Where the problem comes for lawyers and courts and has spurned the current controversy is that 1) psychologists have forgotten that the probability is what is functioning, and 2) the system has trusted the psychologist too much. Psychologists forget that probability is what is functioning and talk in absolutes and extremes in their recommendations. On the witness stand in a court proceeding the psychologist should explain that what he has done is assessed the parties to increase probability, rather than act as if he has found some hidden answer. When a lawyer asks questions that begin with "Is it possible…" the answer should be related to the probability rather then the absolute. Psychologist’s must stay within the limits of their profession. This has become a mistake endemic to the field of psychology, and in fact many probability sciences.

The system also trusts the psychologist at times beyond what it is that the psychologist can say. Judges are the gatekeepers of information. The psychological evaluation is only a part of the complete solution to decide a custody case, not the entire solution. People come to a psychologist and give them tainted information because they are trying to convince the psychologist rather than convey information. The adversarial process of the legal system will be better at getting certain types of information out of the litigants. Accordingly, the court should carefully weigh all information before it makes a final custody determination.

Symptom-Based Diagnosis When the professions in mental health moved from the Diagnostic and Statistical Manual–II (DSM-II) to the versions of III and IV, there was a strong paradigm shift that occurred in psychological and psychiatric diagnosis. The earlier DSM’s focused on a mix of symptoms and etiology in the explanation of mental disorder. The DSM III and DSM IV focused the field entirely on the symptom that a person was showing at the time of diagnosis. Essentially, the person with a headache has a problem with excessive stress and the concept that the person could have a brain tumor or some vascular disease is negated. This may not seem as large a shift to outsiders, but it was a huge change in the thought of the mental health professional and particularly in forensic psychology. The problem occurs when someone expects the authority of both symptom and etiology when questioning its mental health professionals and it is not there.

Etiological-based diagnosis will make assumptions about the person’s history and experiences in his life when making a diagnosis. If a person has problems functioning now, it assumes there were things in that person’s past that caused this malfunction to happen. The roots of psychology fit into this etiological based system where everything came from the person’s mother or from the person’s childhood. Therefore, people with difficulties functioning today started to make claims that "I must have been abused when I was a child and repressed it or else I wouldn’t be like this now." They would then go back and force memories into their system to be able to explain what was happening to them at this point. Etiological-based diagnosis has the potential to cause numerous assumptions to be made that can bring the psychologist further and further from what is present at the time.

In symptom-based diagnosis, a determination is made regarding a person’s functioning at a specific point in time whether it is a depression, anxiety, a personality disorder, a thought disorder or some other pathological concerns. Once the diagnosis is made there is concern to look for etiology or potential patterns that make sense to the development of the diagnosis. This is confirming evidence that the diagnosis is correct, but historical patterns are not always present in custody cases. Sometimes people just act in aberrant ways when under stress or pressure. This author wrote a book on survival patterns in humans and how they function in predictable ways (Aumiller, 2001) which outlines forms of behavior that can appear under pressure that can be quite normal. Distinguishing between long term patterns, or traits, versus short-term pattern, or states, is an important function of the forensic psychologist and it all begins with the proper diagnosis of current functioning.

Although the standard for diagnosis is considered symptom based, not all psychologists have followed suit in the ways they look at things. This author likes to call one of the trends in psychology the "Rumpelstilskin Effect" – or that by naming a pattern you create a "syndrome" that transcends the pattern itself. Rumpelstilskin was the nursery rhyme about a girl who makes a deal with a devilish elf to give up her first born child if she can spin straw into gold. When she becomes a queen from her gold creating abilities, and has a child, she is reminded by the elf of their deal. She doesn’t want to give up the child so the elf makes her a deal that if she can guess his name she can keep her baby. She guesses his name because she sent out spies and all live happily ever after. In psychology, there is a "Rumpelstilskin Effect" when someone puts a name to something that we have all observed, but somehow the syndrome doesn’t quite withstand the pressure of scientific scrutiny. "Co-dependency," "seasonal affective disorder" and "parent alienation syndrome" are recent examples of the Rumpelstilskin Effect. When put to the test of rigorous research many of these patterns do not pass muster, but they are dramatic enough to make people pay attention and thus have garnered much publicity and acceptance in the field of psychology. The concern with these Rumpelstilskin Effects is that when a psychologist uses one of them to fit the pattern in a situation, he goes about confirming the rest of the symptom pattern to fit the diagnosis of, say Parenting Alienation Syndrome, as if it is a recognizable disease that has a solitary etiological root. Dunnette (1966) talked about this tendency to find confirming evidence in his landmark article in the American Psychologist called "Fads, Fashion and Folderol in Psychology." He states that evidence that doesn’t confirm the diagnosis is thrown out or not considered to make for a uniform picture. Few, if any situations do not have disconfirming evidence. An unbiased forensic report must include both confirming and disconfirming evidence. It must transcend current psychological "fads" that have no scientific support.

Demand Characteristics In most professions, the material that is published controls the state of the science. The journals are peer reviewed and supposedly only the better written and most cutting edge articles get published. Since one of the main criterion in academia to reach tenure is publication, there is little difficulty in journals getting a continuous flow of quality articles to publish. Journals in psychology are given an "impact factor" which is a point score contingent on the subscription base of the journal. The higher the "impact factor" of a journal, the greater the consideration given to the publication when tenure or some other rating of the author is needed. For those outside of academia, publication in journals is more a matter of wanting to advance the science, feeling you have something to say and others need to hear it, or just plain ego. Publication in other places where payment is made has totally different motivations and makes more sense financially for people outside of academia.

In law, when a case is decided on rather mundane circumstance, such as the father was abusive and had abused the children so custody was given to the mother, it does not make the law journals. If a case becomes decided on unique or unusual circumstance then it becomes something of notoriety that gets reported in the journals. The uniqueness is attractive to a law journal, and it can advance the case law in the future and become a decision that is often quoted setting a precedent for other cases.

For example, much ado has been made over the lack of support for clinical experience when considering the testimony of psychologists. They point out that the research is clear that clinical experience means very little when looking at treatment effects in psychology, and that undergraduates or psychologists who have just completed graduate school have as strong treatment effects as psychologists who have worked for many years. This concept is used to fuel attorneys who say it is meaningless when a psychologist states on the stand that in their clinical experience some effect or another is interpretable in some way.

There is a competing process that goes on with these types of results. This writer spent some time as the editor of a journal in police and forensic psychology. If an article came in that said clinical experience was the most important function (as many did), it did not get published. This is too much common sense. Why publish something that merely confirms what we know – clinical experience is a factor in the treatment effects of a study? But when a study came in that talked about a certain technique where clinical experience was not important, that was news. It had a higher weight and would go into the pile of potentially publishable articles. In effect, the greater the articles falls away from the prevailing thought at the time in the field, the more publishable it becomes. The same can be said in many fields. If it is not news, then it is not as attractive. Whereas, it is nice to say that clinical experience means very little, that statement is counterintuitive. If you had a serious illness would you seek out a newly graduated physician given all other factors are the same?

Now of course there are many variations of this depending on who is being assessed and the quality level of the work of the psychologist. There are many factors that happen in a psychological evaluation that falls into the category of not producing solid data. It is hoped that the judge can be a gatekeeper not only of the entrance of data into the courtroom setting, but also the quality of the evaluator entering the data when selecting a court appointed psychologist to do a forensic. The court should appoint evaluators possessing an abundance of clinical and forensic experience who can be trusted to give good scientific data and accept the limitations of their data. Despite the outcropping of forensic psychology programs in academia throughout the country, this is an area where experience is essential and the newer psychologist is just not going to pass muster.

PATHOLOGY IN PARENTING

One of the basic assumptions in a psychological evaluation is that by assessing any mental disorder you will give the court a better chance of choosing the proper parent. This thinking is logic-based - pathological parents tend not to be as good at meeting the needs of the children. It is also, however, in tune with the research – basically parents who suffer from certain psychological disorders tend not to raise healthy children. The Guidelines for Child Custody Evaluations (APA, 1994) states that "psychopathology may be relevant to such an assessment, insofar as it has impact on the child or the ability to parent, but it is not the primary focus." A closer look at the research will show exactly which types of pathology are not desirable for a parent.

This author’s doctoral dissertation was ground breaking research (Aumiller, 1983) in the area of the role of emotions in parenting. It took a look at a parenting program at a local children’s hospital (i.e., Sagamore Children’s Center) and looked at the effects of adding an emotional control training program to the behavioral modification program the parents were being offered by the hospital. The people in the program were from the community and were split into three groups, one receiving a behavior modification only program, one receiving a program with the emotional control component and a third that was put on a waiting list for the length of the programs. The effects were profound. The group with the emotional control training did better across the board. Not only were they better able to apply the parenting techniques from the behavior modification, but they also became less upset when parenting and even decreased on a depression inventory. Their children were more controlled at program’s end and at 2 and 6-month follow-up. The outcome was highly significant that the parents who could control their emotions made better parents.

When parents have psychopathological tendencies, their ability to control their emotions is greatly compromised. These parents worry about meeting their own needs rather than focusing their attention to their children’s needs, or they ignore their needs until they become self-destructive. Children of pathological parents are less comfortable and are forced to make adjustments; often times, the adjustments are unhealthy themselves and follow the child into adulthood.

Depression The largest body of literature on the psychopathy of parents has been on depression. This literature has spanned over the past three decades, since the 70’s, and has had numerous articles, too many to mention. Zucherman and Beardslee, 1987; Gelfand and Teti, 1990; Downey and Coyne, 1990; Cummings and Davies, 1994; Goodman and Gotlib, 1999; and Cummings et al., 2000 have provided reviews of the extensive research literature in how depression in a parent affects parenting. Infants have difficult temperament, dysregulated emotions, lower motor control and lower mental development. Toddler and pre-school children show cognitive and emotional problems paralleling their parent’s disorder. They react strongly to stress, show fewer interpersonal skills and are seen by others as aggressive and inappropriate around peers. Through the school years they are more anxious, their behavior is more disruptive and the problems with peers seem to be stronger. In adolescence they continue to show maladaptive behavior and development. Parental depression also gives way to early menses in females (Ellis and Garber, 2000) and late pubertal development in males. Early development in females is highly correlated with social problems, and late development in males is correlated with social problems. The lifetime risk of getting depression for children raised by depressed parents is around 45% (Hammen, Burge, Burney and Adrian, 1990), whereas Adela, et al. (2005) suggests that children of depressed parents are 4 to 6 times more likely to develop a depressive disorder. Follow-up studies such as Pesiah, et al. (2004) show that some effects such as anxiety can last 25 years or more. Pesiah, et al. also showed that there was greater alienation in the children from the healthy parent in depressed children. Clearly, clinical depression is an undesirable characteristic in a parent and a factor to be considered in a custody battle.

Schizophrenia and Psychotic Disorders Schizophrenia has a mixed bag of results as it is difficult to separate out the genetic and environmental components of the disorder. There is a transgenerational transmission of schizophrenia and a variety of symptoms of the thought disorder that may show up in young children. Such has been the case with children reared apart from a schizophrenic parent as in Fowles (1992) but there is also a strong case made for schizophrenic parents transmitting the disease through environmental factors or a combination of environmental and genetic factors (Stabenau and Pollin, 1993). The schizophrenic parent tends to be more isolate, less nurturing, unorganized and has lability in his emotions. Schizophrenia is also correlated with infant neglect, abuse and even infanticide (Brockington. 1996). Because schizophrenia can also involve disturbances in mood, the symptoms above for depression clearly come forth in children with a parent with a thought disorder. Essentially these children can be left to fend on their own and that can lead to numerous acting out problems in the teen years. What is also of concern is that the majority of filicidal parents are suffering from some sort of psychosis, whether it be paranoid schizophrenia or a simple paranoia. The non-psychotic markers to identify a filicidal parent are also found frequently in people going through a divorce, such as fantasized aggression, obsession and isolation. And evaluator must not ignore when both the markers of filicide and a psychotic disorder are diagnosed. The good news is that schizophrenia is rather easily diagnosed in a psychological evaluation and many tests are good at diagnosing this disorder, even tests that would seem to not identify much else. If a parent is schizophrenic, or has a psychosis of any kind, it is likely that he would not be a strong candidate for parenting.

Anxiety Disorders The research is much less strong but still present for parental anxiety disorders. When we are looking at parental anxiety disorders, we look at the diagnosis of panic attacks, dysthymic disorder, generalized anxiety disorders, obsessive compulsive disorder, agoraphobia, social phobias, and specific phobias. Anxiety disorders are much more prevalent in women and thus the research has focused frequently on mothers. Children who have a parent with an anxiety disorder are more at risk to develop that disorder themselves (Bernstein and Burchardt, 1991; Beidel and Costello, 1987). Whaley, Pinto and Sigman (1999) found that women with anxiety disorders give less autonomy to their children, show less positive emotion, over exaggerate danger, and criticize more creating much more anxiety in their children. The anxiety in a mother was a good predictor of social, behavioral and emotional problems in children (Barnettt, Schaafsma, Gusman and Parker, 1991). Capps, et al. (1996) suggested children of anxious parents exhibit less control over their environment and exhibit more fear and anxiety themselves. Lack of controllability is likely to lead to depression in a child, as well as the anxiety. It is important when looking at anxiety that a forensic evaluator look more for trait anxiety, than state anxiety. It is common for persons going through a divorce to show state anxiety, particularly if the divorce conflict is significant enough to warrant a forensic psychological evaluation. The trait of anxiety is much more important and has longer reaching effects. Trait anxiety needs to be picked up from a good history from both parents, as well as a current assessment of the individual. People with anxiety and depression problems are likely to have a history of therapy and/or medication in today’s age. The forensic specialist needs to look at length of time of the depressive syndrome and the depth and functioning inhibition the depression has on their lives.

Eating Disorders Much ado has been made about parents with eating disorders and the role model they present to their children, but unfortunately much research has not been done in this area. It is natural for people going through divorce to change the quantity of the intake of food – some using food as a crutch for comfort, others as one thing they can control and still others changing food intake to lose weight for their new social life after divorce (or during for many). Weight changes are common in divorce situations, whether it is ballooning in weight to a higher number than they ever were before, or losing an appetite. Also likely is the increase or decrease in the amount of exercise. It is difficult to ferret out what is caused by the divorce or what was going on before, which is another reason a good solid history is required. Infants of mothers with an eating disorder were found to weigh less than a normal population (Stein, Wooley, Cooper and Fairburn, 1994), but there was no evidence to suggest mothers with eating disorders were limiting the food intake of children (Stein, Wooley and Cooper and Fairburn, 1996). There is some suggestion that the conflict surrounding food for eating disordered mothers cause them to miss infant cues during meal time (Stein, Wooley and McPherson, 1999). This is an area for much more research.

Alcohol and Substance Abuse Alcohol abuse in parenting has been documented for years and a full review of the literature would not be possible in a short essay such as this one. There are organizations for children of alcoholics and substance abusers that outline the dimensions of a parent having this disorder. Addicted parents tend to rely on harsh punitive punishments as was found in Miller, et al. (1999) with a lot of threats and yelling. Householder (1980) reported a lot less emotional involvement with an infant and less direct gaze. They suggested that mothers who were addicted to opiates tend to be less involved with their children and more likely to withdraw. Rodnig, Beckwith and Howard (1989, 1991) showed that toddlers of addicted parents tend to be more insecurely attached to their parents. Brookoff, O’Brien, Cook, Thompson and Williams (1997) reviewed families involved in domestic violence and found 86% had alcohol the same day as a domestic incident. Alcoholics tend to neglect their children and Widom and White (1997) found that children who were neglected before age 11 had a much higher risk of developing substance-abuse problems and to later be arrested. Wolock and Magura (1996) found that one of the best predictors of a CPS case being reopened within two years was substance abuse problems. It is difficult to ferret out the research on alcohol abuse or drug abuse with the research on other disorder. People who drink are more likely to have depressive disorders, anxiety disorders, and personality disorders. Many of the same symptoms that develop for children of these disorders also develop for children of alcoholics. The research basically falls in line with logic that a substance abusing parent can have detrimental effects on a child.

Personality Disorders The above mentioned areas fall into the category of what psychologists call Axis 1 disorder. The concept of axis of disorder comes from the Diagnostic and Statistical Manual–IV (1994) published by the American Psychiatric Association. Axis 1 disorders are the primary disorder in the way a person interacts with the world at the present time. It would be the symptom the patient is showing at the time. They encapsulate the definition of the current behavior in strong terms and the way the world affects the person who is being diagnosed. Axis 2 behaviors, on the other hand, are ingrained in the personality, and can be found in the patient’s history dating back to adolescence or early adulthood. The personality disorders are grouped into three clusters. Cluster A, odd and eccentric type disorders, are called Paranoid, Schizoid, and Schizotypal Personality disorders. Cluster B, dramatic and erratic disorders, are called Histrionic, Borderline, Narcissistic and Antisocial Personality disorders. Cluster C, anxious or fearful disorders, fall into the diagnosis as Obsessive Compulsive, Dependent and Avoidant Personality disorders. The DSM-IV lists the criteria for a personality disorder as:

"A. An enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture. This pattern is manifested in two (or more) of the following areas:

1. cognition (perception and interpretation of self, others and events)

2. affectivity (the range, intensity, lability, and appropriateness of emotional response)

3. interpersonal functioning

4. impulse control

B. The enduring pattern is inflexible and pervasive across a broad range of personal and social situations.

C. The enduring pattern leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning.

D. The pattern is stable and of long duration and its onset can be traced back at least to adolescence or early adulthood.

E. The enduring pattern is not better accounted for as a manifestation or consequence of another mental disorder.

F. The enduring pattern is not due to the direct physiological effects of a substance or a general medical condition such as head injury."

In a forensic psychological evaluation, it is highly possible that the person does not have a diagnosable disorder in Axis 1, particularly if there are diagnosable disorders in Axis 2. This unfortunately is not the case in the research as the disorders that are shown in children of divorced parents tend to fall into similar patterns with Axis 2 cases as with Axis 1 cases. In many cases it is difficult to figure out what has created the problem in the family. This is particularly the case in Cluster A and C disorders which have somewhat similar patterns to depressive, psychotic, and anxiety disorders. In making forensic recommendations to the court, the practitioner must be thoroughly knowledgeable of the research in these areas.

The personality disorders in cluster B have some distinct research that would indicate caution. Although it is difficult to separate some disorders like borderline personality and histrionic personality from their base symptoms, the response of children of individuals with these disorders is similar to the symptoms of mood disorders and substance abuse disorders discussed above. That may be because some of the prevailing symptoms are very similar to disorders like depression and substance abuse.

The chaotic world of individuals with borderline personality disorder creates great emotional upheaval for a child and puts them on an inconsistent basis for parenting. Feldman and Gutman (1984) suggest that a child with a parent with borderline personality disorder will tend to become the target of that parents’ projections and distortion of reality. Adela, et al. (2005) showed that children of parents with borderline personality disorder are almost 7 times more likely to get a major depressive disorder. Mother’s with borderline personality disorder produce children who flounder in life even as adults (Lawson, 2002). They have so much upheaval in their lives that this gets passed to the children and makes them unable to cope.

Imbessi (1999) stated that narcissistic parents pay little attention to the child’s needs except in relation to their own needs. He said the narcissistic parent will not provide the child with gradually frustrating experiences which will deny the child the ability to handle stress in the child’s life. Elkind (1991) did a study of instrumental narcissism, which he described parents who are compelled to transform their normal kids into geniuses. He states that their effort devalues the children and their true abilities and has belitating effects on their confidence. Cohen (1998) researched narcissistic fathers and found that their narcissism caused them to have unstable relationships with their children after the divorce.

There is a substantial amount of research to suggest that antisocial personality disorder in the parents of a child greatly predisposes the child to a conduct disorder and/or Attention Deficit Disorder with Hyperactivity (ADHD) Biederman, Munir and Knee, 1987; Lahey, Hartegen, et al. 1998; Lahey, Piacentini et al., 1988; Lahey, Russo, Walker and Piacentini, 1989; Frick, et al., 1992, Lahey, et al., 1995) Parental antisocial disorder is highly correlated to alcohol and/or substance abuse and aggressive behavior in their children (Clark et al., 1997; Kuperman, Schlosser, Lidral and Reich, 1999). Severity of maternal antisocial attitudes correlated highly with maternal unresponsiveness and infant passivity (Cassidy, et al., 1996). It was found that mother with antisocial personality disorders were also significantly less adept at supervising their child’s behavior and were very inconsistent in applying discipline (Frick, et al., 1992).

Personality disorders were also found to be correlated to child molestation (Bogaerts et al., 2005), and adolescent conduct disorders (Barnow, Lucht and Freyberger, 2005). Weizmann-Henelius, Viemero and Eronen (2005) suggested personality disorders of parents were functioning as a marker for violent behaviors by incarcerated females. And in one of the more complete studies of aggression in a book called Faces of Violence, George Palermo (1994) states personality disorders are almost always present in parents of violent children who become serial killers, commit sexual violence, mass-murder or parent-child murder.

Of specific import to the diagnosis of a personality disorder is the style of parenting that the parent will choose to apply in parenting situations. Sears (1957) had some of the ground breaking research in looking at parenting styles. He rated parents on two dimensions, permissiveness and punitiveness, and found that parents high in permissiveness or high in punitiveness tended to raise aggressive children who didn’t adapt well in society. He theorized that the highly permissive parent sent the message that aggression was alright and the highly punitive parent gave the child degrees of frustration and anxiety that later led to violence. More recent research in these dimensions (Chamberlin and Patterson, 1995; Patterson, 1997; and Patterson and Fisher, in Borenstien, 2002) showed that the vacillation of high punitiveness with high permissiveness leads to a cumulative effect on children, their ability to live in society and their aggressiveness becomes much worse than either pattern alone. This pattern would describe the parenting of the person with a personality disorder.

Of more sweeping research building on that of Sears (1957) was the cumulative work of Baumrind (1966, 1967, 1970, 1980, 1989, 1991) on parenting styles. She distinguished four dimensions to look at parenting – control, clarity of communication, maturity demands and nurturance. From these dimensions, she established three parenting styles – authoritarian, permissive and authoritative. Authoritarian parents were high on maturity demands and control, and low on nurturance and clarity of communication. Permissive parents were the opposite – high on clarity of communication and nurturance and low on control and maturity demands. These both produced children at the extremes, too shy or too hostile, overly dependent on their parents, and not involved in achievement. Children with the highest level of competence came from authoritative homes. They were achievement oriented, had good peer relationships, more independent and assertive, had better relationships with their parents, and were higher achievers. This research has been very consistent over the years. In cases which come to a forensic, very often it is found that the parents are diametrically opposed on these dimensions where one parent is the nurturing type and the other is the authoritarian. Somewhere a child is caught in the middle, but oddly enough gets what he/she needs from the combination of the parents. The decision becomes which of the two can provide both dimension or is more authoritative. When the diagnosis of a personality disorder is added to the mix, or in the case of two personality disorders, the decision becomes very dicey. Generally parents with a personality disorder are too labile, too self-involved and too over-reactive to provide clarity of communication, control, nurturance or maturity demands consistently.

ASSESSMENT IN PSYCHOLOGICAL EVALUATIONS

The Use of Psychological Tests The scrutiny that psychological testing has undergone recently is both well-deserved and overdone. Psychological tests are one of the tools of the psychologist that can be used in custody evaluations to help determine if one or both of the parents are pathological. Some are valid, reliable, have margins of error, and, more importantly, have base rate data in the divorce/custody application of the court as required by the Daubert-Frye requirements. Others have questionable validity and/or have not been applied or researched in the custody situation. Determining which tests are appropriate in a custody evaluation is important for all psychologists, judges and lawyers.

The standard test that most psychologists give in the evaluation of custody dispute is the MMPI-2. It is a test that was originally (over 60 years ago) designed to diagnose pathology by asking questions (i.e., 567 questions) of respondents and seeing if they responded in a pattern similar to people who were diagnosed and often hospitalized with the disorders. For example, by responding to many items on the scale of paranoia, the person would be considered paranoid. Responding to some of those items would suggest a degree of the paranoid characteristic commensurate with their level of responding. The scales were composed of 9 clinical scale and three scales which would determine if it were a valid application. Certainly the argument that the test was not designed for use in a court setting for custody evaluations would have credence if this were as far as it went. Of course with this rationale, willow bark would only protect a tree instead of being formed into aspirin and used as a fever fighter by Hippocrates in 400 BC, an arthritis cure in the 19^th century, a pain killer in the 20^th century and over two millennium after it was originally employed medicinally, used to prevent myocardial infarctions.

About 250 articles a year are currently published on the MMPI-2 which would only be a small number of the research projects which use the MMPI each year. Reliability for the MMPI-2 clinical scales range from .93 to .69 with the clinical scale of paranoia being the lowest. In addition to the nine clinical scales, an average score reporting on the MMPI-2 gives over a hundred scales for the researcher and practitioner to look at, as well as a computer generated report, including a report for forensic settings. The normative data for the MMPI-2 in custody disputes was provided by Butcher (1997), Bathurst et al. (1997), and in books such as Pope, et al. (2000), but the uses date back to as long as psychologists were in courts helping make custody decisions. Articles by authors such as Seigel and Langford (1998) suggesting the patterns of alienating parents and specific MMPI scores, and Wakefield and Underwager (1990, 1991) on false abuse allegations, are bringing to the forefront the research in test scores and parenting behavior. Egeland, et al. (1990) showed which mothers on an MMPI-2 scale were likely to be abusive to their children. Bosquet and Egeland (2000) found a strong relationship between scores on the Antisocial Practices Content Scale of the MMPI-2 and being more harsh and hostile in their parenting style. And as you as you can imagine each of the scales and various dimensions have been analyzed, looked at and reported on in conferences and in journals throughout the science of psychology.

Growing in usage is the MCMI-III, a relative newcomer in the field of psychology. Ackerman and Ackerman (1997) conducted a survey of psychological professionals in the court system and found that the majority (over 80%) used the MMPI-2 but the MCMI-III was growing in frequency. McCann (1996) also suggested that the MCMI-III was growing in frequency in court systems and had tremendous applications across different forensic settings. What was not said was that the 3^rd revision of the MCMI was only generally available since 1994, had sweeping changes and may not have had much of a chance to be utilized for research by the 1997 article. For the MCMI-III, the reliability coefficients range from .82 to .96, while Chronbach’s Alpha test of internal consistency has a range from .71 to .95. In the manual, Millon (1997) discusses the uses of the test in court as one of the more salient features of his instrument. McCann, et al. (2001) provides normative data on the test for custody evaluation settings. Also providing data on the MCMI-III in custody disputes are Davis, et al. (1997) and Dyer, et al. (2000). Dyer and McCann (2001) then show that the MCMI-III could meet the Daubert standard in court. The MCMI-III is a test that has direct linkage to the DSM-IV and the diagnostic categories and scales on the tests are directly related. It should be noted that in addition to overall base rate data, the clinician should keep a record of all his evaluations to have a local base rate. This data should be in a form that is accessible and analyzed statistically. Doing so implies the clinician uses scientific method. Not doing so suggests that science is not as important to that clinician.

Both of these tests look for pathology and when used in a custody situation can help the forensic clinician determine the psychological stability and behavioral predictors of the parents. Other tests of pathology are used in general populations, but have some difficulty relating directly to the custody situation. One of the more promising is the Personality Assessment Inventory (PAI) which has 22 non-overlapping scales and includes scales and sub-scales such as violence, borderline characteristics and hypervigilance. While it seems to be a very good test with good validity indicators and statistical properties, and it certainly tests areas of interests, data has not been recorded for use in custody evaluations so the utility is done with caution until the data becomes available for people in these situations.

What the data shows regarding testing with the MMPI-2 and the MCMI-III is that there is generally an increase in paranoia and depression. There is an increase in narcissistic scales in men and an increase in histrionic scales in women. None of these are strong enough to raise a subject into personality disorder or clinical levels, but the increase should be noted when these tests are analyzed.

Tests have been created specifically for use in custody situations such as the Bricklin Perceptual Scales, Perception of Relationship Test, Child Abuse Profile, and a host of other inventories and questionnaires that evaluate the parent or the child. The clinician needs to be very careful using these devices as most have unsteady validity for use in court. They do tend to have strong face validity, meaning they ask the very relevant information that appears on the surface to be directly relevant to the examination process. Unfortunately, many people in a custody evaluation are not particularly truthful.

Some forensic clinicians give a test which measures intelligence of each of the parents, or in some cases the intelligence of the child. While intelligence is a general characteristic that supports good parenting, it is questionable for decision making in a custody case unless the examiner suspects one of the two parties has a much lower IQ. When there is a large difference between the parents in IQ, intelligence testing would be warranted.

Some clinicians use other tests in custody evaluations that are used in other areas of psychology. The 16PF, Myers-Briggs and the California Personality Inventory would be examples. These are tests more often used in employment testing or in looking at couples entering marital or relationship therapy to see where their differences are. Again these are good tests and many are very valid in what they measure but many are very transparent, meaning that the person taking the test can more easily look at the question and somewhat determine the outcome by what they answer. These can be particularly useful in generating hypothesis about parenting style as the parent’s perception of himself is important in this distinction. It is suggested that anyone using these tests have a substantial database of usage with this instrument in a custody evaluation.

Finally, psychologists and psychiatrists use projective techniques to help determine psychopathology. Tests such as the Rorschach, Thematic Apperception Test, Rotter Incomplete Sentences or any of the drawing tests like the Draw a Man, or House, Tree Person Test are all examples of projective techniques. The projective principal is that when given an ambiguous task or an ambiguous stimulus a person will project parts of himself onto that stimulus or task and his personality can be determined by it. This is an area of high controversy. Studies have shown that persons giving the Rorschach test are more likely to project their own personalities on the task rather than the personality of the person they are testing. Wood, et al. (2003) dedicates an entire book to the evils of the Rorschach which has driven people to objective tests like the MMPI-2, the MCMI-III and the 16PF. In essence, research suggests these tests are good at determining a limited range of thought disorders, although probably just interviews would detect people with this kind of difficulty. As a clinician, particularly in training, we are sometimes amazed that the projective tests seem to work at determining some things, but the research lacks in consistency and reliability. It also has a poor face validity to determine the custody of a child by how a house, tree or person is drawn. These tests are still being used, but are best left out of an evaluation for court purposes.

However, there is a growing body of research on the use of projective techniques with children who have been physically or sexually abused. The research seems to determine with good reliability if there has been incidents of abuse and some of the specifics about the incidents. More importantly, it can lead to better discussions with the children who have been victims. The research is not good at detecting the perpetrator of that abuse, but just whether the abuse has existed or not. This is an area that will probably be developed over the course of the next few years and may provide good scientific tools for the forensic evaluator.

One of the characteristics off all of the psychological tests is that they are much better at distinguishing pathology or even personality characteristics at the extremes than when the person is in the middle on the dimensions. The distinctions between plus or minus one standard deviation are pretty poor and the tests will tell you very little; 68 per cent of the people fall in that range on any one dimension. Some would say it is 1 ½ standard deviations on either side of the mean which covers about 87 per cent of the people falling in that range. Since we mostly look at high scores on these tests of pathology for custody evaluations, it can be argued that in order to be interpreted as significant the person would have to fall within the 6 ½ percentile to come to the attention of the psychologist. This is a small group and would strongly suggest there is something going on. When someone is in the 6^th or 7^th percentile, there will usually be some behavior that goes along with the scores on the tests. (It is suggested that people be compared to scores of people going through custody evaluations as well as the norms for the tests.)

Psychological Interviewing Interviewing is a separate skill by itself and there are many books written on the techniques of interviewing (the process of extracting accurate information from people). A full discussion of interviewing techniques is not appropriate here, but some general principals need to be understood.

When doing a forensic interview, it is important to look toward making the interview structured or semi-structured. Research has shown that structured interviews give more information and more accurate information. Miller, et al. (2001) showed that in diagnostic interviews, being structured far outperformed unstructured interviews and also outperformed psychological tests. Without the structure there is no level of organization and there is also no ability to compare the person to other people or to the other party in the divorce. The structure can be as simple as going through the person’s history, or getting information on the relationship. How the subject acts toward the structure will yield interesting information; some will ramble in many different directions and others will answer only the questions they are asked. All this yields strong information. The need for structure is necessary from the start of the process.

There is some argument over whether sessions should be taped in a forensic evaluation. Proponents of taping state that it allows attorneys to look into the process with depth and analyze the interactions to see what was significant. Also they claim that it allows the psychologist to go over his notes and fill in the spaces when something may be missed. Proponents of the sessions not being taped suggest that taping will cause a "Hawthorne Effect." The Hawthorne experiments were conducted from 1927 to 1932 at the Western Electric Hawthorne Works Plant in Cicero, Illinois. What these experiments showed was that the act of observing someone, or looking closely at his performance, changed his performance. They showed that it could be as simple as changing the lighting and, in some cases, people felt they were being singled out. Psychologists against taping sessions suggest that the act of taping a session will change the interaction with the subject of the divorce proceeding thus affecting the accuracy of the information elicited. There is good argument on either side of this question, and it is best left up to the individual judge, psychologist and legal team to make a decision prior to the beginning of a forensic. At times a forensic psychologist will tape one or two sessions when trying an experiment to show the effects to the court.

The way interrogation techniques are taught to law enforcement and military have special credence when talking about doing a forensic interview. The focus of the examiner in an interview must be on the subject, the other party. The examiner has to tune out his inner experience and focus totally on what the subject is doing and saying. This yields a lot of information and can be the impetus for further exploration. For example, looking at whether the person changes body position every time he talks about his spouse, or whether he or she changes his gaze, or whether he looks straight forward and freezes his face can only be done by an evaluator that has moved his focus to outside rather than inside his own body. Some of the movements will not be obvious. In the first few sessions, the goal is to collect a baseline of the way the respondent answers questions and the behaviors he exhibits while answering. That is why this session is usually reserved for asking history details. When more difficult questioning is begun later on, it can be compared to the first session and cues of anxiety and deception can be picked up.

Ammodt (2004) showed that college undergraduates were as good at picking up deception as experienced psychologists. In his study, he found was that professionals had a tendency to exaggerate their ability to determine if someone was lying or not and that his undergraduates were just as good. He pointed out that structured interviews, where deception was purposely looked at, needed to be set up if an experienced clinician was going to detect when someone was not being truthful at a better than layman rate. This examiner suggests at some point after a baseline is collected that the examiner has a session or portion of a session that is confrontive and will raise the heart rate to see if the answering becomes different. In this session, the examiner needs to be particularly tuned into non-verbal cues that someone is being deceptive and specifically look at the non-verbal signs as well as a statement analysis. A good review of these cues was done by Depaolo et al. in a 2003 edition of the Psychological Bulletin. Being able to discern whether a person has the maturity to be truthful or is hiding information is important in looking at parenting style, level of antisocial attitudes and later levels of rebellion in adolescents.

The mental status examination is considered a special type of structured interview to determine psychopathology. It is a combination of a series of questions and a number of techniques to determine the person’s orientation, cognitive functioning, sensorium, emotional functioning and other specifics about a person’s state at the time of an interview. It is most often used by psychiatrists, but is taught also to psychologists that graduate from clinically oriented programs. It is unfortunately not tied to parenting in the research, but may be a useful technique for making a diagnosis when someone has gross signs of pathology. The same can be said for a Quick Neurological Screening which is a quick test of neurological integrity. Again, it is not tied to parenting, but may be of help in making a diagnosis, especially if there are some concerns of the neurological functioning or perhaps even long term affect of drugs and alcohol.

Other Sources of Information If valid information can be gleaned from documents or confirming information they should be looked at. Documents from the children’s school, medical records, police observation reports (as opposed to police reports where they take information from the participants), or documents that confirm or disconfirm what the litigant is saying are all valid sources of information. Court documents and police reports where the litigant’s words are being reported should have very little input into a forensic other than to confirm a history.

In the old days of forensics, a lot of weight was placed on mini-experiments in the office involving the litigants or the children. Checking on obsessive compulsive disorder by disorienting the pictures in the waiting room, giving the client suggestions to see if they are displayed later in the process or perhaps placing inappropriate magazines in the waiting room, are all ways that can help define a problem or diagnosis, but do not necessarily lead directly to conclusions. These types of forensic techniques come under attack in the courtroom and should be used with caution. They should not be the basis for a forensic decision but can add confirming evidence.

There is quite a bit of controversy about collateral contacts in forensic psychology. Some psychologists refuse to meet with any at all, saying the court wants a psychologist’s opinion. Others get too much information from collateral interviews. The APA Guideline states that collateral sources can provide information, but that all information should be verified by more than one source. An evaluator may interview the person’s friends or parents or neighbors, or the child’s teachers or anyone that has come into contact with the family. The question really is what others offer to the data of the psychologist.

Research in employment psychology is very clear that letters of recommendation are the worst for pulling information from others (Muchinsky, 1979). Reports from a person’s therapist would usually only indicate one side of the story, and if it is the children’s therapist, the story is often derived from the parent the therapist has contact with. Even teachers tend to get one side of the story, the one of the most involved parent. Causal attributions are made by therapists and teachers all the time that seem to not make any sense when someone hears both sides of a story. And strangely enough, this examiner has found that the more pathological the litigant, often the more slanted the collateral contact is in their favor. It should be noted that often a person states something on the phone then comes to court and says something very much different. The psychologist looks like an idiot quoting the person in the report and finding that something different is said in court. It also can negate the entire basis for conclusions and recommendations.

Psychologists often feel they have to integrate and reach a final conclusion and recommendation and they may not have enough information in the data they have collected to make it strongly enough. They then begin to look for confirmation from collateral sources. This becomes a problem for science. Mostly, the psychologist should interview outside sources to find out if those people are viable to watch the child or provide a program for the child. When a psychologist spends a lot of time interviewing outside sources he is depending on the least reliable data source available and sets himself up for a problem.

The one exception is if there has been a person that has worked with the children and seen both sides of the family. Perhaps a physician or a therapist has been involved with the family for awhile and can comment on the family functioning. Teachers that can provide specific incidents are also of value in preparing a forensic, but remember the APA caution that these sources must be confirmed by other sources. Caution is still needed, as it is rare in divorce situations to find people not taking sides.

Recommendations and Costs It seems no discussion of a forensic is complete anymore without a discussion of recommendations and cost. The recent controversies over forensic evaluations divide even the profession on whether or not psychologists should make recommendations about custody. Proponents against recommendations say that the psychologist should not be making the final decision and that his data set is limited. Proponents for recommendations suggest that all professionals make recommendations and that if the court places too much emphasis on a psychologist’s recommendation it is the court’s problem, not the psychologist’s problem. Unfortunately, neither argument assists in the function of the court.

If cases can be decided without trial, that is better for the parties involved and for the children. If litigants go through an evaluation and get no determination of who is the better psychological parent they will be more likely to go to trial. They will be encouraged by whatever good is said about them and not see all the negatives of the other party. This may not be in all cases, but definitely occurs in the most pathological cases. The stark reality of a recommendation is that it will make the parties look closely at the decision to proceed or whether it is in their interest to continue. Without the recommendation, there will be a natural human tendency to slant the psychological forensic to their case and thus fight through the trial process. Recommendations in this context help in possibly resolving the case before it goes to trial. At trial, if the psychologist doesn’t come out totally in their favor, there is considerable dismay, emotional distress and accusations of tampering will be made. Essentially, without a final recommendation of the psychologist on the data in the forensic evaluation, the opportunity for misinterpretation is considerable.

Frankly, the concern over recommendations is ridiculous. The judge is the decision maker. The psychologist can decide any parameters he wants, but that doesn’t change the fact that the judge makes the final decision. The psychologist makes a recommendation based on his data, just like a forensic accountant would give a number or a DNA expert would give probability. Perhaps the wording is of concern if one is nitpicking but it is only logical the psychologist make a recommendation based on the data he/she has gathered. This recommendation should be based on data and should not overstep the bounds of the science.

There has been a lot of negative publicity about the cost of a custody forensic evaluation quoting prices of 15,000 dollars or more. The papers and TV stations find the highest price then stimulate the masses to be concerned by quoting the extreme. Nationwide the average cost of a forensic custody evaluation is somewhere between 3,500 and 5,000 thousand dollars for a custody forensic by an experienced licensed psychologist. The cost entails the costs of tests which are a few hundred dollars, the cost of sessions, cost of phone calls and the cost of the report. Writing the report takes about equal time to the rest of the evaluation. For what is put out in professional service, these prices are very reasonable. A forensic evaluation that cost 15,000 dollars is no better at reducing the probabilities of a correct decision than a forensic evaluation costing 4-5 thousand dollars. In fact, many are worse. It would be ideal if psychologists fixed prices before it is done from the outside as happened with managed care in the therapy field. For now, the court should be the gatekeeper by referring to professionals that provide a good service at a reasonable rate.

LEGAL REFERENCES FROM THE APPELATE COURTS

Below is a listing of cases where the forensic evaluation of a psychologist has been upheld in an appellate court.

United States v. Boykoff, No. 02-1435 (2d Cir. May 21, 2003) (unpublished).　 On trial for tax fraud, defendant offers psychiatrist to testify that defendant is bipolar and suffers from ADHD, in support of defendant's contention that errors in tax returns were due to carelessness and inattention, not intent to defraud.　 District court excludes testimony for want of adequate link between diagnoses and issue of specific intent, and also as more prejudicial than probative.　 Jury convicts.　 Affirmed.　 Appellate panel need not reach issue of testimony's admissibility, because any error was harmless.　 Various witnesses testified that defendant committed numerous intentionally fraudulent acts over extended period of time.　 Expert conceded he never reviewed tax returns and could not link any entries on returns to defendant's diagnoses.　 In any event, no reasonable jury could have believed that defendant suffered from mental conditions leading him to commit careless errors that invariably worked to his benefit.

Altamuro v. County of Nassau, No. 01-7275 (2d Cir. Mar. 29, 2002) (unpublished).　 Involuntarily committed mental patient brings section 1983 action, alleging wrongful confinement and forcible medication, and offers testimony from psychoanalyst, Dr. Norman Pearl, who opines that plaintiff was not mentally ill, though Dr. Pearl admits that diagnosis of mental illness would fall within range of reasonableness.　 At close of evidence, district court grants defendants' Daubert motion and enters judgment for defendants as matter of law.　 Affirmed.　 Plaintiff does not challenge Daubert ruling on appeal, but argues that timing of expert's disqualification prevented plaintiff from curing evidentiary deficiency.　 However, plaintiff had ample notice that Dr. Pearl's testimony was challenged, and did not seek to reopen case once his testimony was excluded.

Mickens-Thomas v. Martinez, No. 04-3843 (3d Cir. July 7, 2005) (unpublished).　 Parolee brings habeas petition challenging constitutionality of state's terms and conditions for his parole.　 Over parolee's objection, state offers testimony from psychologist Dr. Veronique Valliere, who opines generally on risks of recidivism but disclaims knowledge of parolee's particular case.　 District judge finds in state's favor.　 Affirmed.　 Testimony's admissibility need not be reached, because district court placed substantially no reliance on it.

Walker v. Gordon, No. 01-4106 (3d Cir. Sept. 17, 2002) (unpublished).　 Prisoner brings section 1983 action alleging excessive force in arrest.　 Defense offers psychiatric expert, "Dr. Toborowsky," to testify that prisoner was likely grossly psychotic at time of arrest, based on medical reports, information from police, and psychiatric examination.　 Prisoner files pretrial motion in limine, arguing that underlying facts on which psychiatrist based his opinion are false.　 District court denies motion without holding Daubert hearing, because motion goes to factual foundation of opinion, not expert's methodology.　 Psychiatrist then testifies at trial without objection.　 Admissibility affirmed.　 Prisoner did not waive objection by failure to object at trial, because nothing indicates that district court's pretrial ruling was tentative or provisional.　 Given definitive pretrial ruling, further objections would have been in the nature of exceptions, which are not required.　 But district court did not abuse discretion in admitting testimony.　 Experts may base their opinions on one particular version of disputed facts, and jury may be told to disregard opinion if it rejects that version.

United States v. Mathis, 264 F.3d 321 (3d Cir. 2001), cert. denied, 535 U.S. 908 (2002).　 Fearing jury confusion or usurpation of jury's role, trial court excludes opinion of bank robber's expert on eyewitness testimony.　 Conviction affirmed because exclusion was harmless error.　 Qualifications of expert, reliability of methods, "fit" of testimony were not in serious dispute.　 In any event, testimony was reliable and should have been admitted despite concerns about "overwhelming" jury.　 But exclusion was harmless error.

Keller v. Larkins, 251 F.3d 408 (3d Cir.), cert. denied, 534 U.S. 973 (2001).　　 Man shoots and kills cheating wife.　 During state murder trial, prosecution psychiatrist testifies that defendant may have suffered from "sadistic personality disorder."　 Upon conviction, man brings habeas claim alleging ineffective assistance, asserting that his counsel should have challenged psychiatrist's testimony under Daubert.　 Denial of habeas affirmed.　 On appeal from verdict in federal trial, federal appellate court would review admissibility of testimony under Daubert, but in habeas action arising from state conviction, and absent any claim that admission of evidence violated constitutional rights, federal appellate court must presume, in light of intermediate state appellate decision holding testimony admissible, that testimony was properly admitted, so that objection would have been futile.

United States v. Barnette, 211 F.3d 803 (4th Cir. 2000).　 In rebuttal during penalty phase of capital trial, prosecutors offer testimony from psychologist, based in part on Psychopathy Checklist Revised (PCR), that defendant is psychopath and likely to commit violent acts in future.　 Defendant, who is black, objects that PCR has not been standardized as to black population or post-middle age population.　 District court admits testimony and subsequently bars defendant's risk assessment expert from testifying on surrebuttal that defendant is not psychopath and will probably not commit future violent acts.　 Admissibility affirmed.　 Assuming that Daubert applies during penalty phase of criminal proceedings, decision to admit psychologist's PCR testimony was not clear error of judgment, but district court should have permitted defendant's surrebuttal witness to testify, because issue of psychopathy had not arisen until government's rebuttal.　 Latter error was not harmless.

Shields v. Dretke, No. 04-70008 (5th Cir. Feb. 17, 2005) (unpublished).　 Habeas petitioner alleges ineffective assistance in underlying state murder trial, arguing that counsel should have challenged reliability of testimony by prosecution psychiatrist, Dr. Edward Gripon, re petitioner's future dangerousness.　 District court denies relief.　 Affirmed.　 It is troubling that psychiatrist did not interview petitioner, but no clearly established law prevents psychiatrist from forming opinion based on case records and psychiatric records.　 Petitioner has not established that he was prejudiced, where counsel chose to rely on rebuttal witness to refute expert's testimony rather than interpose futile Daubert objection.

Martinez v. Dretke, No. 03-51067 (5th Cir. May 24, 2004) (unpublished).　 Habeas petitioner alleges ineffective assistance, claiming that defense counsel should have mounted more vigorous challenge to prosecution expert's use of Hare Psychopathy Checklist to predict future dangerousness during sentencing phase of underlying capital trial.　 District court denies habeas relief.　 Affirmed.　 Trial court devoted half-day to defense counsel's Daubert challenge.　 Although challenge did not succeed, defense counsel were so well prepared that trial judge complimented them on their efforts.

Vogler v. Blackmore, 352 F.3d 150 (5th Cir. 2003).　 Woman and child are killed in vehicular accident.　 Family members bring wrongful death suit.　 Thanatologist and "grief expert" Dr. Phyllis Silverman testifies for plaintiffs.　 Jury awards damages.　 Admissibility affirmed.　 Defendants have raised no proper challenge to witness's credentials, or to reliability of her testimony.　 Defendants do question whether average juror would require expert testimony to understand family members' grief on loss of loved one, but testimony was relevant, and district court did not abuse its discretion in admitting testimony after weighing its probative value against its potential prejudicial effect.　 Moreover, any error would be harmless, because other evidence supported jury's award.　　

Tyler v. Union Oil Company of California, 304 F.3d 379 (5th Cir. 2002).　 In age discrimination suit, employees offer statistical testimony from Dr. Blake Frank, industrial/organizational psychologist, who opines that Unocal employees over age fifty were more likely to be subject to adverse employment decisions.　 Jury returns verdict for plaintiffs.　 Admissibility affirmed.　 Defendants' five specific methodological quarrels go to weight, not admissibility.　 In particular, expert could permissibly create his own database from data supplied by Unocal, and did attempt to address factors other than age that might affect employment decisions.

Deal v. Hamilton County Bd. of Educ., No. 03-5396 (6th Cir. Dec. 16, 2004).　 In IDEA case brought by family of autistic student, trial court admits testimony from school district's expert on IDEA compliance, Dr. David Rostetter, and its expert psychologist [?], Dr. B.J. Freeman.　 Court enters judgment for school district and plaintiffs appeal.　 Admissibility affirmed.　 Plaintiffs offer only factual arguments, not legal ones.　 Meanwhile, Daubert is designed to "protect juries" and is largely irrelevant in bench trials.　 In any event, trial court's evidentiary rulings did not constitute abuse of discretion.　 Dr. Rostetter is nationally recognized expert in IDEA compliance, has published extensively in that field, helped draft original IDEA regulations, and has served as court-approved and court-appointed IDEA expert in numerous other cases.　 Fact that Dr. Freeman was not involved in case until after ALJ's decision was entered is not determinative on admissibility of her testimony, so long as it was helpful in determining validity of original IEP.

United States v. Redditt, No. 01-6401 (6th Cir. May 21, 2003) (unpublished), cert. denied, 124 S. Ct. 944 (2003).　 Carjacking defendant demands independent psychiatric evaluation, saying his low IQ rendered him incapable of understanding consequences of his actions at time of crime and also prevents him from assisting in his defense.　　 District court grants his request, but evaluation team finds defendant competent to assist in defense, able to understand right and wrong, and capable of appreciating consequences of his actions.　 Prosecution proceeds, and jury convicts.　 District court denies post-trial motion for new psychiatric evaluation, and says, at sentencing, that defendant's trial testimony "reveals that the conclusions of the [psychiatric] evaluation team were clearly correct. An individual not competent to stand trial could not have given the detailed and coherent testimony offered by the defendant."　 Affirmed.　 Defendant argues that psychiatric evaluation was never examined for reliability under Daubert, but district court did not rely on evaluation.　 Rather, district court relied on its own observations of defendant to reach same conclusion.

Pittman v. ANR Advance Transp., No. 00-2501 (6th Cir. Aug. 29, 2002) (unpublished).　 Man is injured when truck rear-ends his auto.　 In personal injury action against trucking company, defendant objects to testimony on injury causation from victim's treating physicians, and to testimony re psychological testing from Ph.D. in human relations.　 Trial court overrules objections and jury returns verdict for victim.　 Admissibility affirmed.　 Defendants complain that physicians merely took patient history and did not perform independent tests or "differential diagnosis" eliminating other potential causes of victim's injuries.　 But differential diagnosis is merely one permissible methodology for ascriptions of medical causation.　 Physicians not only took patient history but also performed physical exams and consulted MRI results.　 Likewise, psychological tests taken by plaintiff are generally used in field and have been subjected to review in published peer-reviewed journals.

Gonzales v. National Board of Medical Examiners, 225 F.3d 620 (6th Cir. 2000), cert. denied, 532 U.S. 1038 (2001).　 Medical student claiming to suffer from learning disability seeks preliminary injunction under Americans with Disabilities Act to require National Board of Medical Examiners to afford him accommodation (extra time) in taking licensure exam.　 Board offers testimony from psychologist that based on her review of plaintiff's performance on various cognitive tests, plaintiff suffers from no disability rising to level of "impairment."　 District court denies preliminary injunction.　 Affirmed.　 Dissenting judge on panel questions whether Board's expert would satisfy gatekeeping requirements of Daubert and Kumho Tire, because Board's psychologist did not personally examine plaintiff, and also because her method for assessing learning disabilities involved theoretical model that had not been tested for purposes of diagnosis or treatment.　 But psychologist did not offer diagnosis.　 She assessed whether plaintiff had any impairment consistent with learning disability.　 This she was qualified to do.

United States v. Smithers, 212 F.3d 306 (6th Cir. 2000).　 In bank robbery trial, defendant offers opinion of expert on eyewitness testimony re general factors influencing eyewitness identifications.　 Expert would also opine that witnesses would have noticed and recalled four-inch scar on defendant's neck.　 Without conducting Daubert hearing, district court excludes testimony, stating that: (a) it will be interesting experiment to see how jury treats case in testimony's absence; (b) defense counsel can always argue for new trial; (c) defense counsel has built strong record that exclusion is abuse of discretion.　 Jury convicts and defendant appeals.　 Exclusion reversed.　 Trend in decisions is toward increased tolerance of expert testimony on eyewitness identification.　 District court showed disturbing lack of regard for defendant's rights and should conduct Daubert hearing on remand.

United States v. Carter, No. 04-2008 (7th Cir. June 10, 2005).　 District court denies criminal defendant's motion for appointment of defense expert on eyewitness identification, ruling that such testimony would not aid trier of fact and could mislead it.　 Jury convicts and defendant appeals.　 Affirmed.　 General testimony on fallibility of eyewitness identification involves matters within understanding of the average juror, and relevant points were covered in cross-examination of eyewitness and in jury instructions.　 No abuse of discretion.

United States v. Ferron, 357 F.3d 722 (7th Cir. 2004).　 Convicted of bank fraud, defendant offers testimony at sentencing phase from Dr. R. Bronson Levin, clinical and forensic psychologist, who opines that defendant suffers from generalized anxiety disorder, dependent personality disorder, dysthymia, drug and alcohol abuse, and suspected adult attention deficit disorder ("ADD"), and therefore lacked capacity to focus on financial matters.　 District court rejects testimony under Daubert.　 Exclusion reversed.　 District court erred in excluding testimony, because Daubert is inapplicable during sentencing proceedings.　 Federal sentencing guidelines require only that evidence bear "sufficient indicia of reliability," which represents more lenient standard than Daubert.　 But error was harmless, because district court actually considered testimony and properly assigned it negligible weight.

Newsome v. McCabe, 319 F.3d 301 (7th Cir.) (see the briefs), cert. denied, 539 U.S. 943 (2003).　 Convicted of murder and later pardoned on grounds of innocence, man sues police under section 1983 for coaching three eyewitnesses to identify him in lineup and then concealing their coaching.　 At trial, plaintiff's expert on eyewitness identification, psychologist Gary Wells, testifies, based on tests with over 500 subjects asked to perform similar identification in photo lineups, that odds of three eyewitnesses mistakenly identifying plaintiff would be substantially less than 1 in 1000, implying that police coaching was indeed responsible for eyewitnesses' unanimous but mistaken identification.　 Admissibility affirmed.　 Expert's testimony went to central factual issue, and defendants do not say how his methodology could be improved.　 In any event, expert's assumptions and methods were fully explored on cross-examination.

United States v. Young, 316 F.3d 649 (7th Cir. 2002).　 Man is charged with interstate domestic violence.　 At trial, his victim recants her previous allegations that he abducted and beat her.　 Prosecution calls psychiatric mental health nurse, Dr. Ann Wolbert Burgess, who opines over defendant's objection that victim's recantation is typical behavior pattern for domestic abuse victims.　 Jury convicts and defendant appeals.　 Admissibility affirmed.　 Expert's experience is germane to reliability of her testimony, and she has forty years of experience as psychiatric nurse, specializes in criminal violence, has authored over 100 publications on forensic nursing, rape, and domestic violence, and has performed academic research studying several hundred battered women.　 Her work is generally accepted in mental health profession, and two other circuits have upheld similar testimony (from this very expert, in one instance).　 Defendant challenges reliability of her methods on three grounds: (1) formation of her opinion prior to interviewing victim; (2) reliance on "anecdotal" evidence involving other battered women; and (3) failure to interview victim's friends and family.　 But: (1) jury was not required to credit defense expert who testified that failing to interview victim first was unsound; (2) expert properly based her opinion on extensive experience as well as careful review of facts; and (3) expert did interview victim, and it is unlikely victim's friends or family could have negated abuse dealt to victim by defendant over decade's time.

United States v. Lamarre, 248 F.3d 642 (7th Cir.), cert. denied, 533 U.S. 963 (2001).　 Husband and wife are charged with defrauding federally insured banking institutions by obtaining loans under false pretenses.　 Trials are severed.　 Husband's defense is that wife masterminded scheme and that because husband lacked intelligence to understand relevant financial transactions, husband could not have formed specific intent to defraud banks.　 Husband offers testimony from psychologist that husband has IQ of 70, second-grade reading ability, and first-grade spelling and arithmetic ability.　 Trial court excludes evidence because husband's intelligence and fraudulent intent are matters within jury's ken.　 Conviction affirmed because exclusion was harmless error.　 Parties agree that psychologist's testimony satisfied Daubert's reliability standard.　 Laypersons may be qualified to evaluate matters within their everyday experience, but scientifically valid social science testimony may be offered to show jurors that commonly held beliefs are incorrect.　 Judges are not required to exclude expert testimony merely because it overlaps with areas of lay knowledge.　 But exclusion of psychologist's testimony was harmless error, because other record evidence made it impossible for any reasonable jury to conclude that husband was ignorant of fraudulent scheme.

Walker v. Soo Line R.R., 208 F.3d 581 (7th Cir.), cert. denied, 531 U.S. 930 (2000).　 Employee is struck by lightning while working in railroad tower and subsequently suffers from psychological damage and impaired ability to work.　 In FELA action against railroad, district court excludes testimony from plaintiff's psychologist re plaintiff's pre-accident IQ, because psychologist did not examine plaintiff before accident, and also because psychologist relied in part on erroneous account of plaintiff's educational history.　 District court also excludes testimony from plaintiff's physician, because physician relied in part on psychologist's inadmissible findings, and also because physician, being neither psychiatrist nor psychologist, is unqualified to opine that plaintiff suffers from post-traumatic stress disorder (PTSD).　　　 Exclusion reversed.　 To estimate plaintiff's pre-accident IQ, psychologist administered National Adult Reading Test -- which is specifically designed to estimate pre-trauma IQ -- and patient's self-reported educational history, even if inaccurate, is type of information on which psychologists commonly rely.　 Psychologist therefore employed legitimate methodologies in estimating pre-accident IQ, and any weaknesses in testimony were grist for cross-examination and jury evaluation.　 Plaintiff's physician was entitled to rely on input from other members of medical team she headed, and mere fact that another of plaintiff's experts disagreed with physician's PTSD diagnosis does not render diagnosis inadmissible.　　　 Remanded for new trial.

Bryant v. City of Chicago, 200 F.3d 1092 (7th Cir.), cert. denied, 531 U.S. 821 (2000).　 Disparately impacted by Chicago Police Department's lieutenant's exam, black and Latino officers bring civil rights suit.　 Police department offers testimony from psychologist to establish that lieutenant's exam has "content validity."　 Admissibility affirmed.　 Expert has extensive academic and practical experience in designing employment evaluations and has authored over fifty articles on subject for peer-reviewed journals.　 His opinion was based on meticulous job.

United States v. Bertling, 370 F.3d 818 (8th Cir. 2004).　 Criminal defendant applies for funding for domestic violence expert to testify on her behalf at sentencing hearing.　 District court denies application because court is generally familiar with subject matter from experience on bench.　 Affirmed.　 Proposed expert was not psychologist or psychiatrist and had not examined defendant, but merely proposed to testify on general issues involving domestic violence.　 District court did not abuse discretion in concluding that it was already familiar with those issues from its experience on bench, and that testimony from expert therefore would not assist.

Mems v. City of St. Paul, 327 F.3d 771 (8th Cir. 2003), cert. denied, 124 S. Ct. 1052 (2004).　 Firefighters allege racial discrimination.　 During recess week at trial, their expert on emotional damages, Dr. John Taborn, re-interviews plaintiffs and takes notes reflecting symptoms and factual allegations not encompassed in expert's pretrial report.　 Notes and interviews are not disclosed to defendant until night before expert's planned trial testimony.　 District court excludes testimony as discovery sanction -- and also, alternatively, under Daubert.　 Affirmed.　 District court was not required to apply least draconian possible sanction under Fed. R. Civ. P. 37, and did not abuse discretion in excluding testimony as sanction.　 Court of appeals therefore need not reach Daubert issues.

In re Air Crash at Little Rock, Arkansas, on June 1, 1999 (Lloyd v. Am. Airlines, Inc.), 291 F.3d 503 (8th Cir.), cert. denied, 537 U.S. 934 (2002).　 Airline passenger suffers leg and knee injuries during runway crash and later suffers from post-traumatic stress disorder (PTSD).　 Passenger sues airline under Warsaw Convention.　 Passenger offers testimony from psychiatrist ("Dr. Harris") that passenger's PTSD is biological and not merely psychological, based on passenger's symptoms as well as research indicating that chronic PTSD leads to physiologically based brain dysfunction.　 Airline objects, at trial, that psychiatric community does not recognize theory that PTSD causes physical brain changes, and also that passenger has not shown any sufficient nexus between that theory and any physical condition in passenger's brain.　 District court overrules objections as untimely.　 Jury returns verdict for passenger.　 Admissibility reversed.　 Passenger's only true Daubert objection, regarding lack of general acceptance of psychiatrist's theory, was raised too late.　 Daubert objections should be addressed before trial wherever possible.　 But airline's other objection is well founded.　 Dr. Harris testified that medical tests exist that could determine whether passenger suffers from physical brain dysfunction.　 Because no doctor performed any such tests, no sufficient connection was established between psychiatrist's testimony and patient's condition.　 On remand, which is necessary because district court adopted wrong standard for compensability of mental injury under Warsaw convention, trial court should conduct pretrial Daubert hearing, if Dr. Harris's testimony remains relevant in light of correct standard for compensability.　 Moreover, testimony that passenger suffers from physical brain dysfunction should not be admitted unless supported by medical testing.

United States v. Finley, 301 F.3d 1000 (9th Cir. 2002).　 Man attempts to negotiate transparently bogus financial instruments obtained from Montana Freemen.　 At trial on fraud charges, he defends on ground that he honestly believed instruments to be valid, offering testimony from psychologist Dr. John J. Wicks that defendant suffers from "atypical belief system."　 District court grants prosecution motion to strike testimony as unhelpful to jury.　 Exclusion reversed.　 Psychologist relied on standard techniques of psychological testing, interviews, and gathering patient history, and his experience in evaluating thousands of persons should not be undervalued.　 Expert did not opine on element of offense or usurp role of jury in evaluating credibility.

S.M. v. J.K., 262 F.3d 914 (9th Cir. 2001), amended, 315 F.3d 1058 (9th Cir. 2003).　 Housekeeper brings tort action against employer who sexually assaulted her.　 Trial court admits testimony from plaintiff's psychiatrist that she suffers from post-traumatic stress disorder (PTSD).　 Admissibility affirmed.　 Psychiatrist first diagnosed plaintiff in 1992, when psychiatrists were still relying on revised third edition of Diagnostic and Statistical Manual (DSM-III-R).　 Under DSM-III-R, triggering event for PTSD had to fall outside range of usual human experience.　 Psychiatrist testified, however, that triggering event could be less severe, and next edition of Diagnostic and Statistical Manual (DSM-IV) omitted requirement that trigger be outside normal human experience, so that psychiatrist's diagnostic criteria now enjoy general acceptance.　 Moreover, psychiatrist's testimony might satisfy even DSM-III-R, which suggests that rape and assault might be triggers.　 In any event, mental health professionals often differ over diagnoses, but even questionable opinions may be admissible if in the realm where reasonable experts could differ.　 Conformity with DSM is not precondition for admissibility, and trial court did not abuse discretion in admitting this testimony.

United States v. Taylor, 239 F.3d 994 (9th Cir. 2001).　 Pimp transports minor across state lines for purposes of prostitution.　 Prosecution introduces testimony from "academic expert" on relationships between prostitutes and pimps to explain why minor failed to testify truthfully in previous proceedings against pimp.　 Admissibility affirmed.　 Defendant complains that no Daubert hearing was held, but district court did hold Daubert hearing.　 Moreover, district court correctly ruled that expert testimony was relevant to buttress credibility of prosecution's principal witness.　 General relationship between prostitutes and pimps is not subject of common knowledge.　 Trier of fact, if unaware of such relationship, may be unable to assess veracity of prostitutes' testimony.　　 District of Columbia Circuit came to same conclusion, re same expert, in similar case.

United States v. Vallejo, 237 F.3d 1008 (9th Cir. 2001).　 Hispanic defendant charged with importation and possession of marijuana offers, but district court excludes, testimony from defendant's high school psychologist that defendant's severe language disorder explains discrepancies between defendant's recollection of interrogation and recollection of customs agents.　 Exclusion reversed.　 Difficulties understanding and speaking English encountered by special education students in high-pressure situations are not within common knowledge of average layperson.　　 Such testimony was relevant to defendant's struggles to express himself during interrogation and at trial and could aid jury re same.　 Sufficiency of psychologist's expertise was not disputed, and testimony was admissible although psychologist did not personally examine defendant, because expert did review ten years' worth of school documentation re defendant.　 Failure to examine goes to weight, not admissibility.

McKenzie v. Benton, No. 02-8024 (10th Cir. Nov. 9, 2004).　 Did sheriff's department violate Americans with Disabilities Act when it refused to rehire officer with history of post-traumatic stress disorder?　 Defendant sheriff's expert psychologist, Dr. Richard Wihera, opines that it was reasonable for sheriff's department to conclude that plaintiff constituted "direct threat" to others.　 Sheriff also calls Tom Walton, Chicago police officer, who opines that decision not to rehire was reasonable from police supervisory point of view.　 Jury finds for defendant.　 Admissibility affirmed.　 At trial, plaintiff objected only to Dr. Wihera's qualifications.　 But he is qualified, having performed over 15,000 pre-employment evaluations for law enforcement agencies in 15 different states.　 Plaintiff now argues, for first time on appeal, that Dr. Wihera's testimony was irrelevant.　 But his testimony was directly pertinent.　 Police officer's testimony was founded on experience and was helpful to trier of fact.　 No abuse of discretion.

Ives v. Boone, No. 02-6397 (10th Cir. May 3, 2004) (unpublished).　 Habeas petitioner complains that prosecution's experts in underlying state trial on incest charges improperly vouched for truthfulness of his daughter's allegations of sexual abuse.　 District court denies relief.　 Affirmed.　 Defense counsel's own questioning invited challenged testimony.　 Moreover, testimony concerned truthfulness of daughter's suicidal feelings, not her allegations of abuse.

Morris v. Burnett, 319 F.3d 1254 (10th Cir. 2003).　 Man molests boy.　 In state criminal trial, man's defense counsel offers testimony from psychologist Dr. Barbara Bebensee to point to inconsistencies in victim's statements and to show that police investigation was not conducted properly.　 State trial court excludes testimony insofar as it relates to victim's inconsistent statements, because state evidentiary law forbids opinion testimony on credibility of victim's testimony.　 State trial judge also excludes expert's testimony re investigative techniques, because defendant did not carry burden of showing scientific support for proposition that certain investigative methods were more valid than others.　 Jury convicts, and state appellate courts affirm conviction.　 Man files petition for habeas corpus in federal court.　 District court grants writ of habeas corpus because exclusion of Dr. Bebensee's testimony violated constitutional right to present defense.　 Reversed.　 Validity of investigative methods employed by police is not automatically relevant, and petitioner failed to show how testimony on this point would have tended to negate charges, beyond calling victim's credibility into question.　 Under Scheffer, exclusion of opinion testimony on credibility does not implicate constitutional right to present defense where: (1) exclusion affects no significant right of accused; and (2) reliability of proposed expert testimony is questionable.　 No significant right of accused was compromised here, because expert had no personal knowledge re victim's statements, and offered only opinion testimony re inconsistencies in statements made by victim to others, which jurors could evaluate for themselves.　 Nor does record offer reliable scientific support for proposition that expert's methods for evaluating victim's veracity would be superior to average juror's.

United States v. Martinez, No. 00-2054 (10th Cir. Mar. 26, 2001) (unpublished), cert. denied, 534 U.S. 881 (2001).　 Defendant is accused of aggravated sexual assault of ten-year-old girl.　 At trial, victim's mental health counselor, Dr. Judith Tyler, testifies as prosecution expert, opining without objection that victim's symptoms are consistent with trauma.　 Jury convicts.　 Admissibility affirmed.　 Because defendant raised no reliability challenge at trial, review is for plain error.　 District court should have made reliability findings, but did not abuse discretion in admitting testimony.　 Witness was amply qualified, and explained how she drew her conclusions.　 Defendant also explored expert's reasoning on cross-examination.　 Nor was testimony's probative value outweighed by any prejudicial effect.

　

　

Conclusions

The Daubert-Frye challenge has great validity for a portion of the forensics in the Suffolk Court system. Some psychologists/psychiatrists don’t use science in their analysis, their report writing or in their recommendations. Some do no testing at all or are inappropriate with the testing they do. To those who have brought this to the forefront, we owe a great debt. It will make psychologists more aware to move the science to the forefront and limit the forensic evaluation to what we know rather than guessing at visitation schedules or other types of recommendations often seen in reports that have no scientific basis. It also makes sure psychologists stay in the function of evaluators and stop exceeding the court orders by providing other services such as trying to resolve a case or providing therapy.

Daubert-Frye challenges started creeping into national conferences in forensic psychology about 6 years ago, around 1999. It became bigger in other states before it came to Suffolk County, New York, and it was more infused into criminal and personal injury cases, rather than child custody cases. It was probably more prevalent in the 90’s in court, but it took until 1999 to get the notice of psychologists. It still hasn’t become a major issue in international conferences in police psychology, although that will change this year.

What is frustrating to the practitioners is that people have shied away from forensics because of the Daubert-Frye challenge. It is a natural knee jerk reaction because a Daubert-Frye challenge automatically extends the time to process a divorce case. Since courts are increasingly aware of the need to process these cases quickly, there is a natural conflict. In general, without the court assigning forensic evaluations, more of these cases will have to prove their point in trial and that will extend the trial calendars of the court until they are even more unmanageable than at present. Additionally, cases with psychological issues will not be addressed and the children will suffer as shown in the research above. It is hoped that the court rectifies the process of Daubert-Frye interference in the coming months and finds the logical conclusion - some forensic evaluators are scientific in their evaluation and recommendations and others are not. Those in the latter category should not receive referrals.

Psychologists can make diagnoses of mental disorders accurately and with good reliability. Proper diagnosis of psychological problems is necessary for good due process for the children in a divorce situation. The research supports that some pathology in parents is bad for the raising of a healthy child. Forensic evaluations are an integral part of the court system in that they offer a judge more information to make a decision, particularly in cases where the psychology of the litigants is in question. There is a science behind forensic custody evaluations, but many practitioners either don’t know it or choose not to use it. Frankly, part of the job of any evaluator is to keep up on the science, which in this field is moving quite rapidly. Psychologists do become like any other profession and tend to rest on what they know rather than spend the hours keeping up-to-date on the research or conducting studies themselves. It is up to the court and the attorneys making the suggestions to the court to utilize an evaluator that will be up-to-date and will know his limits when applying psychological science to the court process.

　

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*The Society for Police and Criminal Psychology is an international organization that originated in 1973 out of a group of police and forensic psychologists who decided to exchange ideas. It is now an international organization with members from many countries. It holds a yearly conference, holds the trademark for the diplomate in police and criminal psychology, and publishes a journal. The last conference in Rome, Italy (2004) had presentations from 12 countries on topics ranging from the detection of deception, to the study of the forensic on Jeffrey Dahmer. Dr. Aumiller is the first Executive Director of the organization after serving as president twice.

　

REFERENCES

Ackerman, M.J. and Ackerman , M.C. Custody evaluation practices: A survey of experienced professionals (revisted). Professional Psychology: Research and Practice, 28, 1997, 137-145.

Abela, John; Skitch, Steven; Auerbach, Randy and Adams, Philippe. The impact of borderline personality disorders on vulnerability to depression in children of affectively ill parents. Journal of Personality Disorders, 19(1), Feb 2005, 68-83.

Aamodt, M. Who can best detect deception: A meta analysis. Presentation at the Congresso Internationale, Rome Italy, Oct.2004.

American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders (4 ed). Washington D.C., 1994.

American Psychological Association. Guideline for Child Custody Evaluations in Divorce Proceedings. Washington, 1994.

Aumiller, Gary. A Program Teaching Parents to Manage Children and Their Own Emotions. Hofstra University: Doctoral Dissertation, 1983.

Aumiller, Gary. Walk Like a Chameleon. New York: Penguin Putnam, 2001.

Austin, William G. Partner violence and risk assessment in child custody evaluation. Family Court Review. 39(4), Oct 2001, 483-496.

Bagby, R. Michael; Nicholson, Robert A.; Buis, Tom; Radovanovic, Helen; Fidler, Barbara J. Defensive responding on the MMPI-2 in family custody and access evaluations. Psychological Assessment. 11(1), Mar 1999, 24-28.

Barnett, B., Schaafarma, M.F., Gusman, A. M. and Parker, G.B. Maternal anxiety: A 5-year review of an intervention Study. Journal of Psychology, Psychiatry and Applied Disciplines, 32, 1991, 423-438.

Barnow, S., Lucht, M. and Freyberger, H. Correlates of aggressive and delinquent conduct problems in adolescence. Aggressive Behavior, 31(1), 2005, 24-39.

Bathurst, Kay; Gottfried, Allen W.; Gottfried, Adele E. Normative data for the MMPI-2 in child custody litigation. Psychological Assessment. 9(3), Sep 1997, 205-211.

Baumrind, D. Effects of authoritative control on child behavior. Child Development, 37, 1966, 887-907.

Baumrind, D. Childcare practices anteceding three patterns of preschool behavior. Genetic Psychology Monographs, 75, 1967, 43-88.

Baumrind, D. Authoritarian vs. authoritative control. Adolescence, 3, 1968, 355-272.

Baumrind, D. Socialization and instrumental competence in young children. Young Children, 26, 1970, 104-119.

Baumrind, D. An exploratory study of socialization effects on black children: Some black-white comparisons. Child Development, 43, 1972, 261-267.

Baumrind, D. The development of instrumental competence through socialization. Minnesota Symposium on Child Psychology, Vol 7, 1973, Minneapolis: University of Minnesota Press.

Baumrind, D. New directions in socialization research. American Psychologist, 35, 1980, 639-652.

Baumrind, D. Rearing competent children. In Damon (Ed.) Child Development Today and Tomorrow (pp 349-378). San Francisco: Josey Bass, 1989.

Baumrind, D. Parenting styles and adolescent development. In Brooks-Gunn, Lerner and Peterson. The Encyclopedia of Adolescence (pp 746-758). New York: Garland, 1991.

Beckwith, Leila; Howard, Judy; Espinosa, Michael; Tyler, Rachelle Psychopathology, mother-child interaction, and infant development: Substance-abusing mothers and their offspring. Development & Psychopathology. 11(4), Fal 1999, 715-725.

Bernstein, G. A. and Borchardt, C. M. Anxiety disorders of childhood and adolescents: a critical review. Journal of the American Academy of Child and Adolescent Psychiatry, 30, 1991, 519-532.

Biederman, J., Munir, K., and Knee, D. Conduct and oppositional disorder in clinically referred with attention deficit disorder: a controlled family study. Journal of the American Academy of Child and Adolescent Psychiatry, 26, 1987, 724-727.

Bogaerts, Stefan; Declercq, Frederic; Vanheule, Stijn and Palmans, Vicky. Interpersonal factors and personality disorders as discriminators between intra-familial and extra-familial child molesters. International Journal of Offender Therapy and Comparative Criminology, 49(1) Feb 2005, 48-62.

Bornstein, Marc. (ed.) Handbook of Parenting. New Jersey: Lawrence Erlbaum Associates; 2nd edition, 2002 Vol 1.

Bornstein, Marc. (ed.) Handbook of Parenting. New Jersey: Lawrence Erlbaum Associates; 2nd edition, 2002 Vol 4.

Bosquet, M and Egeland, B. Predicting parenting behavior from antisocial practices content scores of the MMPI-S administered during pregnancy. Journal of Personality Assessment, 74, 2000, 146-162.

Bow, James N.; Quinnell, Francella A. Psychologists' current practices and procedures in child custody evaluations: Five years after American Psychological Association guidelines. Professional Psychology: Research & Practice. 32(3), Jun 2001, 261-268.

Brockington, J. Motherhood and Mental Health. Oxford England: Oxford University Press, 1996.

Brookoff, D., O’Brien, K., Cook, C., Thompson, D. and Williams C. Characteristics of participants in domestic violence. Journal of the American Medical Association, 277, 1997, 1369-1373.

Butcher, J.N. Base rate information for the custody samples in the Minnesota forensic study. Unpublished study, 1997.

Capps, L., Sigman, M., Sena, R., Honker, B. and Whalen, C. Fear, anxiety and perceived control in children of agoraphobic patients. Journal of Psychology, Psychiatry and Applied Disciplines,37, 1996, 445-452.

Cassidy, B., Zoccolillo, M. and Hughes, S. Psychopathology in adolescent mothers and its effect on mother-infant interactions. Canadian Journal of Psychiatry, 41, 1996, 379-384.

Chamberlain, P. and Patterson, G. Discipline and child compliance in parenting. In Borstein (ed.), Handbook of Parenting: Vol 4, Applied and Practical Parenting, 2002.

Cohen, Orna Parental narcissism and the disengagement of the non-custodial father after divorce. Clinical Social Work Journal. 26(2), Sum 1998, 195-215.

Clark, D., Moss, H., Kirisci, L., Mezzich, A., Miles, R. and Ott, P. Psychopathology in pre-adolescent sons of fathers with substance use disorders. Journal of the American Academy of Child and Adolescent Psychiatry, 36, 1997, 495-502.

Craig, R.J. Testimony based on the Millon Clinical Multiaxial Inventory: commentary and guidelines. Journal of Personality Assessment, 73, 1999, 290-304.

Craig, R.J. Use of the Millon Clinical Multiaxial Inventory in the logical assessment of domestic violence: A review. Aggression and Violent Behavior, 7, 2002, 1-9.

Cummings, E. and Davies, P. Maternal depression and child development. Journal of Child Psychology and Psychiatry, 35, 1994, 73-112.

Cummings, E., Davies, P. and Campbell, S. Applications of developmental psychopathology: Parental depression, families and children’s development. IN Developmental psychopathology and family process: Theory, Research and Clinical Implications, New York: Guilford, 299-340, 2000.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 2786 L.Ed.2d (U.S. 113 S.Ct. 1993).

Davis, R.D., Wenger, A., & Guzman, A. (1997). Validation of the MCMI-III. In T. Millon (Ed.) The Millon inventories: Clinical and personality assessment (pp. 327–359). New York: Guilford.

Depaolo, Bella, Lindsay, James, Malone, Brian, Muhlenbruck, Laura and Charlton, Kelly. Cues to deception. Psychological Bulletin, 129(1), Jan 2003, 74-118.

Downey, G. and Coyne J. Children of depressed parents: An integrative review. Psychological Bulletin, 10, 1990, 50-76.

Dunnette, M. D. (1966). Fads, fashions and folderol in psychology. American Psychologist, 21, 343-352.

Duthie, Bruce; French, Alfred P. Forensic utility of the MMPI contemporary norms. American Journal of Forensic Psychology. 1990 Vol 8(1) 13-18

Dyer, F.J. & McCann, J.T. (2000) The Millon Inventories, research critical of their forensic application, and Daubert criteria. Law and Human Behavior, 24, 487–497.

Dyer, F.J. & McCann, J.T. (2000) The Millon Inventories, research critical of their forensic application, and Daubert criteria. Law and Human Behavior, 24, 487–497.

Eggland, B., Erikson, N. Butcher, J.N. and Ben-Porath, Y.S. MMPI-2 profiles of women at risk for child abuse, Journal of Personality Assessment, 57, 1991, 254-263.

Elkind, David Instrumental narcissism in parents. Bulletin of the Menninger Clinic. 1991 Sum Vol 55(3) 299-307

Ellis, Elizabeth M. Guidelines for conducting parental fitness evaluations. American Journal of Forensic Psychology. 19(1), 2001, 5-40.

Endres, Linda S.; Guastello, Stephen J.; Rieke, Mark L. Meta-interpretive reliability of computer-based test interpretations: The Karson Clinical Report. Journal of Personality Assessment. 1992 Dec Vol 59(3) 448-467.

Feldman, R. and Guttman, H. Families of borderline patients: Literal-minded parents, borderline parents, and parental protectiveness. American Journal of Psychiatry, 141, 1984, 1392-1396.

Fowles, D. Schizophrenia: Diathesis-stress-revisited. Annual Review of Psychology, 43, 1992, 303-336.

Frick, , P., Lahey, B., Loeber, R., Stouthamer-Loeber, M., Christ, M. and Hanson, K. Familial risk factors to oppositional defiant disorder and conduct disorder: Parental psychopathology and maternal parenting. Journal of Consulting and Clinical Psychology, 60, 1992, 49-55.

Gelfand, D. and Teti, D. The effects of maternal depression on children. Clinical Psychology Review, 10, 1990, 329-353.

Goodman, S. and Gotlib, I. Risk for psychopathology in the children of depressed mothers: A developmental model for understanding mechanisms of transitions, Psychological Review, 106, 1999, 458-490.

Gould, Jonathan W. Scientifically crafted child custody evaluations: II. A paradigm for forensic evaluation of child custody determination. Family & Conciliation Courts Review. 37(2), Apr 1999, 159-178.

Hagan, Margaret A.; Castagna, Nicole The real numbers: Psychological testing in custody evaluations. Professional Psychology: Research & Practice. 32(3), Jun 2001, 269-271.

Halon, Robert L. Child custody "move away" cases: McGinnis and psychology. American Journal of Forensic Psychology. 1994 Vol 12(1) 43-54

Halon, Robert L. The Millon Clinical Multiaxal Inventory-III: The normal quartet in child custody cases. American Journal of Forensic Psychology. 19(1), 2001, 57-75.

Hammen, C., Burge, D., Burney, E., and Adrian, C. Timing of mother and child depression in a longitudinal study of children at risk. Archives of General Psychiatry, 47, 1990, 1112-1117.

Hickson, Corinne Lee Custody evaluations: The susceptibility of children to parental influence. Dissertation Abstracts International: Section B: The Sciences & Engineering. 60(4-B), Oct 1999, 1886.

Householder, J. An investigation of mother-infant interactions in a narcotic-addicted population. Dissertation Abstracts, 1980.

Imbessi, L. The making of a narcissist. Clinical Social Work Journal, 27, 1999, 41-54.

Kirkland, Karl; Kirkland, Kristen L. Frequency of child custody evaluation complaints and related disciplinary action: A survey of the Association of State and Provincial Psychology Boards. Professional Psychology: Research & Practice. 32(2), Apr 2001, 171-174.

Kitzmann, Katherine M.; Emery, Robert E. Child and family coping one year after mediated and litigated child custody disputes. Journal of Family Psychology. 1994 Jun Vol 8(2) 150-159.

Kuperman, S., Schlosser, S., Lidral, J. and Reich, W. Relationship of child psychopathology to parental alcoholism and antisocial personality disorder. Journal of the American Academy of Child and Adolescent Psychiatry, 38, 1999, 686-692.

Lahey, B., Hartdagenm S., Frick, P., McBurnett, K., Connor, R. and Hynd, G. Conduct disorder: Parsing the confounded relation to parental divorce and antisocial personality. Journal of Abnormal Psychology, 97, 1988, 334-337.

Lahey, B., Loeber, R., Hart, E., Frick, P., Applegate, B., Zhang, Q., Green, S., and Russo, M. Four-year longitudinal study of conduct disorder in boys: Patterns and predictors of persistence. Journal of Abnormal Psychology, 104, 1995, 83-93.

Lahey, B., Piacentini, J., McBurnett, K., Stone, P., Hartgedan, S., and Hynd, G. Psychopathology in parents of children with conduct disorder and hyperactivity. Journal of the Academy of Child and Adolescent Psychiatry, 27, 1988, 163-170.

Lahey, B., Russo, M., Walker, J. and Piacentini, J. Personality characteristics of mothers of children with disruptive behavioral disorders. Journal of Clinical and Consulting Psychology, 57, 1989, 512-515.

Lampel, Anita K. Use of the Millon Clinical Multiaxial Inventory-III in evaluating child custody litigants. American Journal of Forensic Psychology. 17(4), 1999, 19-31.

Lawson, Christine Ann. Understanding the borderline mother. New York: Jason Aronson, 2002.

Lee, S. Margaret; Olesen, Nancy W. Assessing for alienation in child custody and access evaluations. Family Court Review. 39(3), Jul 2001, 282-298.

McCann, Joseph T.; Dyer, Frank J. Forensic assessment with the Millon inventories. New York, NY, US: Guilford Press (1996). xiv, 241 pp.

McCann, Joseph T.; Flens, James R.; Campagna, Vicky; Collman, Pamela; Lazzaro, Thomas; Connor, Ed. The MCMI-III in child custody evaluations: A normative study. Journal of Forensic Psychology Practice. 1(2), 2001, 27-44.

Medoff, David. MMPI-2 validity scales in child custody evaluations: Clinical versus statistical significance. Behavioral Sciences & the Law. 17(4), 1999, 409-411.

Miller, Paul, Dasher, Robert, Collins, Rodney, Griffiths, Pamela and Brown, Fred. Inpatient diagnostic assessments: 1. Accuracy of structured vs. unstructured interviews. Psychiatry Research, 105(3), Dec 2001, 255-264.

Miller, P., Smith, N. and Mudar, P. Mother’s alcohol and other drug problems and their punitiveness toward their children. Journal of Studies on Alcohol, 60, 1999, 632-642.

Millon, Theodore. MCMI-III Manual (2^nd ed). Minneapolis: Pearsons Inc., 1997.

Muchinsky, Paul. The use of reference reports in personnel selection: A review and evaluation. Journal of Occupational Psychology, 1979 Dec Vol52(4) 287-297.

Ollendick, D.G., and Otto, B.J. MMPI characteristics of parents referred for child custody studies. Journal of Psychology, 117, 1984, 227-232.

Otto, Randy K.; Edens, John F.; Barcus, Elizabeth H. The use of psychological testing in child custody evaluations. Family & Conciliation Courts Review. 38(3), Jul 2000, 312-340.

Palermo, George. The Faces of Violence. Springfiled, Illinois: Charles Thomas, 1994.

Patterson, G. Performance models for parenting: A social interactional perspective. In Grusec and Kuczynski (eds) Parenting and children’s internalization of values: A handbook of contemporary theory, (pp 193-226), New York: Wiley, 1997.

Pesiah, C., Brodaty, H., Luscombe, G., and Ansley, K. Children of a cohort of depressed patients 25 years later: Psychopathology and relationships. Journal of Affective Disorders, 82(3), 2004, 385-394.

Peyrot, Mark. Psychological testing and forensic decision making: The properties-in-use of the MMPI. Social Problems. 1995 Nov Vol 42(4) 574-586

Pope, Kenneth S.; Butcher, James N.; Seelen, Joyce The MMPI, MMPI-2, and MMPI-A in court testimony. The MMPI, MMPI-2 & MMPI-A in court: A practical guide for expert witnesses and attorneys (2nd ed.). (pp. 9-49). Washington, DC, US: American Psychological Association. (2000), xviii, 473 pp.

Posthuma, Allan A new MMPI-2 scale for custody disputes. American Journal of Forensic Psychology. 21(4), 2003, 51-64.

Posthuma, Allan B.; Harper, James F. Comparison of MMPI--2 responses of child custody and personal injury litigants. Professional Psychology: Research & Practice. 29(5), Oct 1998, 437-443.

Quinnell, Francella A.; Bow, James N. Psychological tests used in child custody evaluations. Behavioral Sciences & the Law. 19(4), 2001, 491-501.

Rodning, C., Beckwith, L. and Howard, J. Characteristics of attachment organization and play organization in prenatally drug-exposed toddlers. Development and Psychopathology, 1, 1989, 277-289.

Rodning, C., Beckwith, L. and Howard, J. Quality of attachment and home environments in children prenatally exposed to PCP and cocaine. Development and Psychopathology, 3, 1991, 351-366.

Roeder, V. Richard. Differences in MMPI-2 and MMPI scales Hs, Hy, Pa, and R of parents making unfounded allegations of child sexual abuse while involved in child custody disputes. Dissertation Abstracts International: 57(6-B), Dec 1996, 4041.

Sears, R. Patterns of childrearing. Evanston, Illinois: Row, Peterson, 1957.

Schneider, Nancy Barbara. How the experts compare with judges and jurors in an awareness of child sex abuse facts and phenomena: Is there a role in court for the expert? Dissertation Abstracts International Section A: Humanities & Social Sciences. 56(5-A), Nov 1995, 1957.

Schutte, J.W. Using the MCMI-III in forensic evaluations, American Journal of Forensic Psychology, 19, 2001, 5-20.

Siegel, Jeffrey C.; Langford, Joseph S. MMPI-2 validity scales and suspected parental alienation syndrome. American Journal of Forensic Psychology. 16(4), 1998, 5-14.

Siegel, Jeffrey C. Traditional MMPI-2 validity indicators and initial presentation in custody evaluations. American Journal of Forensic Psychology. 14(3), 1996, 55-63.

Sinha, D. and Dhawan, N.　 Nature of communication, intelligence, suggestibility and attitude change.　 Journal of the Indian Academy of Applied Psychology, 1971, Vol 8(3), 53-58.

Stabenau, J., and Pollin, W. The domain of developmental psychopathology: The contribution of twin and high risk studies. Journal of Nervous and Mental Disorders, 181, 1993, 290-197.

Stein, A., Murray, L., Cooper, P. and Fairburn, C. Infant growth in the context of maternal eating disorders and maternal depression: A comparative study. Psychological Medicine, 26, 1996, 569-574.

Stein, A., Woolley, H., Cooper, P. and Fairburn, C. An observational study of mothers with eating disorders and their infants. Journal of Child Psychology, Psychiatry and Applied Disciplines, 35, 1994, 733-748.

Stein, A., Woolley, H., and McPherson, K. Conflict between mothers with eating disorders and their infants during mealtimes. British Journal of Psychiatry, 175, 1999, 455-461.

Strong, David R.; Greene, Roger L.; Hoppe, Carl; Johnston, Terry; Olesen, Nancy. Taxometric analysis of impression management and self-deception on the MMPI-2 in child-custody litigants. Journal of Personality Assessment. 73(1), Aug 1999, 1-18.

Turner, S., Beidel, D. and Costello, A. Psychopathology in the offspring of anxity disorder patients. Journal of Clinical and Consulting Psychology, 55, 1987, 229-235.

Wakefield, H. and Underwager, R. Personality characteristics of parents making false allegations of sexual abuse in custody battles. Child Abuse Accusations, 2, 1990, 121-136.

Wakefield, H. and Underwager, R. Sexual Abuse allegations in divorce and custody disputes, Behavioral Sciences and the Law, 9, 1991, 451-468.

Waller, Erika M.; Daniel, A. E. Purpose and utility of child custody evaluations: from the perspective of judges. Journal of Psychiatry & Law. 32(1), Spr 2004, 5-27.

Weizmann-Henelius, Ghitta; Viemero, Vappu and Eronen, Markku. Psychological risk factors in violent female behavior. International Journal of Forensic Mental Health, 3(2) Fall 2004, 185-196

Whaley, S., Pinto, A. and Sigman, M. Characterizing interactions between anxious mothers and their children. Journal of Clinical and Consulting Psychology, 67, 1999, 826-836.

Widom, C. and White, H. Problem behaviors in abused and neglected children grown up: Prevalence and co-occurrence of substance abuse, crime and violence. Criminal Behavior and Mental Health, 7, 1997, 287-310.

Wolock, I. and Magura, S. Parental substance abuse as a predictor of child maltreatment re-reports. Child Abuse and Neglect, 20, 1996, 1183-1193.

Wood, James M.; Nezworski, M. Teresa; Lilienfeld, Scott O.; Garb, Howard N. What's wrong with the Rorschach?: Science confronts the controversial inkblot test. San Francisco, CA, US: Jossey-Bass (2003). x, 446 pp.

Zanarini, Mary; Frankenberg, Frances; Hennen, John; Reich, D. and Silk, Kenneth. Psychosocial functioning of borderline patients and axis II comparison subjects followed for six years. Journal of Personality Disorders. 19(1) Feb 2005, 19-29.

Zuckerman B. and Beardslee, W. Maternal depression: A concern for pediatricians. Pediatrics, 79, 1987, 110-117.