AFCC: Class Action Exposure?

The Association of Family and Conciliation Courts (AFCC),is the professional organization for forensic psychologists and family law attorneys.  The AFCC specifically instructs child custody evaluators NOT to diagnose pathology.

The AFCC has published an instruction guide for child custody evaluations, the Model Standards of Practice for Child Custody Evaluations.

With this document, the AFCC has put their seal of approval, their imprimatur, on the practice of child custody evaluations.  I believe that is significant, because I wonder what sort of legal liability that establishes for the AFCC regarding the assessment procedure of child custody evaluation.

I’m not a lawyer, but as a psychologist I’d be worried if I were on the Board of Directors for the AFCC about the potential legal liability exposure this “Model Standards of Practice” creates for our organization.  If we’re telling people how to do it, and providing our professional credibility, name and status to the activity, then to what extent do we also incur legal liability responsibility for endorsing and recommending the practice?

If I’m on the Board of Directors as a clinical psychologist, I’m going to want our attorneys to offer an opinion on that, and I’ll want our attorneys to review our “Model Standards of Practice” with an eye toward legal liability exposure before we publish them and provide our organization’s imprimatur of support for the practice.

And, on the other hand, if I’m considering a class action lawsuit against the practice of child custody evaluations for essentially being a fraudulent financial racket (I’m not a lawyer, but if I were, I’d seriously look at a Rico violation with the AFCC as the organizing syndicate and the child custody evaluators as the capos), I’d be looking at linking the AFCC to the lawsuit specifically on this document, their Model Standards of Practice for Child Custody Evaluations.

Seems to me… they took ownership of the practice of child custody evaluations with that document.

Principle D Justice

The first problem the AFCC faces is that the practice of child custody evaluations is a foundational violation of Principle D Justice of the American Psychological Association ethics code.  Child custody evaluations, as a practice, are in violation of a foundational Principle of ethical practice, Justice, on two separate and independent counts.

Principle D: Justice
Psychologists recognize that fairness and justice entitle all persons to access to and benefit from the contributions of psychology and to equal quality in the processes, procedures, and services being conducted by psychologists.  Psychologists exercise reasonable judgment and take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices.

Let’s begin to apply this Principle of professional ethics to the practice of child custody evaluations…

“fairness and justice entitle all persons to access to and benefit from …”

A typical child custody procedure costs between $20,000 to $40,000 for each evaluation. That financial cost places the practice of child custody evaluation beyond the affordability of all but the most affluent of families.  Since lower-income families are offered no alternative, they must turn to substandard assessments conducted by less qualified, and often unqualified, professionals because the more qualified professionals and assessments are cost-prohibitive.

The most expensive clinical psychology assessment for the most complicated child pathology (e.g., trauma with autism-spectrum and ADHD features, learning disabilities, involving prenatal exposure to drugs, foster care placement, and current behavioral problems) would cost around $5,000 and take between four to six weeks to complete, with a report, for a high-end comprehensive assessment.  A typical clinical psychology assessment for most pathologies costs about $2,500.

That forensic psychology cannot develop an assessment protocol for their “high-conflict divorce” pathology for less than $20,000 to $40,000 strains credulity, and raises prominent professional concerns about their exploitation of a vulnerable population, the class of parents in family court litigation surrounding child custody and visitation schedules.

Forensic psychology claims this population as their exclusive property, prohibiting any recommendation for child custody visitation schedules being offered by clinical psychologists based on any criteria OTHER than the conduct of their $20,000 to $40,000 child custody evaluation procedure.

As a treating clinical psychologist with full, direct, and ongoing knowledge of the pathology in the family, I can form a professional opinion on the relative benefits of different custody visitation schedules… I just can’t tell the court my opinion.  I am prohibited from telling the court my opinion unless I’ve conducted one of their $20,000 to $40,000 child custody evaluations.  Then I can tell the court my opinion.

Parents who cannot afford the excessive and obscene cost of a child custody evaluation are denied “access to and benefit from” quality professional input into their family litigation and the court’s decision-making.  That is a fundamental violation of Principle D… “fairness and justice entitle all persons to access to and benefit from …”, less affluent families are being denied “access to and benefit from ” the input of professional psychology.

The practice of child custody evaluations, endorsed with guidelines from the AFCC, is foundationally in violation of Principle D Justice of the APA ethics code for denying “access to and benefit from” quality professional input into their court-involved family conflict because the excessive and prohibitive financial cost of their immensely bloated and ill-conceived assessment procedures.

“fairness and justice entitle all persons to… equal quality in the processes, procedures, and services being conducted by psychologists.”

There is no inter-rater reliability to child custody evaluations.  This means that child cusody evaluations are not a valid assessment of anything, they are just the opinion of one person, the evaluator, based on no supported foundations.

The absence of inter-rater reliability means that different evaluators can reach entirely different conclusions and recommendations based on exactly the same family information and data.  Families are therefore denied “equal quality in the processes, procedures, and services” by the absence of inter-rater reliability to the procedure.

Two of the prominent experts in forensic psychology, Stahl and Simon, who literally wrote the book on child custody evaluations, published by the Family Law Section of the American Bar Association, acknowledge the high degree of variability in the quality of “services” delivered by child custody evaluators.

From Stahl & Simons: “The American Board of Forensic Psychology is a subspecialty board of the ABPP. In the fall of 2011, there were approximately 250-300 ABPP board certified forensic psychologists in the United States and an unknown number of psychologists who specialize in forensic work but are not board certified.  On top of that, there are many psychologists who dabble in forensic practice, occasionally performing child custody or other types of forensic evaluations, and who find themselves called to testify in court on occasion.  While we recognize that there is a range of quality in their work, it is clear that forensic psychology is a growing area of specialization.” (Stahl & Simons, 2013, p. 9)

Stahl, P.M. and Simon, R.A. (2013). Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony, Chicago, IL: Section of Family Law of the American Bar Association

The procedure of child custody evaluations violates Principle D Justice of the APA ethics code by failing to provide “equal quality in the processes, procedures, and services being conducted by psychologists.”  This is an openly acknowledge fact (“we recognize that there is a range of quality in their work”; Stahl & Simon, 2013).

To the extent that the AFCC issues Model Standards of Practice for Child Custody Evaluations they are providing recommended “Standards of Practice” for an unethical procedure.

Avoiding Diagnosis

Diagnosis is considered professional standard of practice in all cases.  Diagnosis guides treatment.  The treatment for cancer is different than the treatment for diabetes.  In order to develop a treatment plan and recommendations (any recommendations), we must first know what the pathology is, what’s the diagnosis?

The treatment for cancer is different than the treatment for diabetes.  Diagnosis guides treatment.

How can we possibly know what to do about a problem, until we first identify what that problem is.  The term “identify” is the common-language word for the professional term “diagnosis.”  We must first identify what the problem is in order to know how to fix it; we must first diagnose what the problem is in order to know how to treat it.

identify = diagnosis

fix = treatment

It is professional standard of practice to first diagnose (identify) the pathology before offering any recommendations about what to do.  If we don’t know what the problem is, if we haven’t identified (diagnosed) what the problem is, how can we possibly know what to do about it?

Failure to first diagnose (identify) what the pathology is prior to making recommendations about how to fix it (treatment or remedy) would be a violation of Standard 9.01a of the APA ethics code requiring that;

Standard 9.01a 9.01 Bases for Assessments
(a) Psychologists base the opinions contained in their recommendations, reports, and diagnostic or evaluative statements, including forensic testimony, on information and techniques sufficient to substantiate their findings. (See also Standard 2.04, Bases for Scientific and Professional Judgments.)

If the assessing evaluator has NOT even identified what the problem is (diagnosis), then the recommendations contained in their “reports, and diagnostic or evaluative statements, including forensic testimony” are not based on information “sufficient to substantiate their findings” because they don’t even know what the pathology is – they have not yet even identified – diagnosed – what the problem is.

In addition, the Model Standards of Practice for Child Custody Evaluations from the AFCC specifically instruct child custody evaluators to AVOID making a diagnosis.

4.6 Presentation of Findings and Opinions
(c) Evaluators recognize that the use of diagnostic labels can divert attention from the focus of the evaluation (namely, the functional abilities of the litigants whose disputes are before the court) and that such labels are often more prejudicial than probative.

While not directly prohibiting child custody evaluators from identifying what the pathology is (the “diagnostic label”) prior to offering recommendations to the court, the clear indication from the AFCC is that identifying pathology (the “diagnostic label”) is “often more prejudicial than probative” and should be avoided, because it “diverts attention” from the true focus of the assessment, which must be something other than identifying what the problem is and offering recommendations on how to solve it.

Diagnosis guides treatment.  We do not know what to do about a problem until we first identify (diagnose) what that problem is.  The treatment for cancer is different than the treatment for diabetes.

In addition to the deeply troubling prominent encouragement from the AFCC to avoid diagnosing pathology before making recommendations to the court, is the further troubling assertion from the AFCC that child custody evaluators should strive to influence the court’s decision-making by withholding from the court information about pathology that the custody evaluator thinks might be “prejudicial” to the case of the pathological parent.

The AFCC is recommending that the child custody evaluator preempts  the court’s authority to assess the relative value of a “diagnostic label” (identifying what the problem is), and that the child custody evaluator should instead independently weigh the relative “prejudicial” and “probative” value of disclosing to the court the identifying name for the pathology in a family, apparently to influence the court’s decision in favor of the pathological parent by withholding diagnostic information from the court’s consideration.

It is a deeply troubling role for a child custody evaluator to be making preemptive decisions on the relative prejudicial and probative value of diagnostic information in order to then withhold information from the court’s consideration that will influence the court’s decision in favor of a pathological parent, based solely on a decision made by the custody evaluator regarding the relative prejudicial and probative value of the information.

Not only is this diagnostic information withheld from the court’s consideration, it is also not disclosed to the parties.  This violates the rights of the non-pathological parent to present evidence to the court because the relevant evidence is being arbitrarily withheld from disclosure to the parent by the child custody evaluator, based on instructions made to the evaluator from the AFCC in their Model Standards of Practice for Child Custody Evaluations, Standard 4.6(c).

In issuing Model Standards of Practice for Child Custody Evaluations, to what degree has the AFCC assumed legal liability for the practice of child custody evaluations?

Principle D Justice
“Psychologists… take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices.”

How?

How have child custody evaluators taken “precautions” to limit their “potential biases“?  What specific precautions in the child custody interview process has that child custody evaluator taken to limit the “potential biases” of the evaluator?

The mother in the case reminds the evaluator of his ex-wife, the tone of her voice, what she says.  She’s really irritating.  The custody evaluator doesn’t agree with the cultural parenting practices and values of one of the parents, he just doesn’t think that’s the right way to parent.

What precautions did that child custody evaluator take in that evaluation to limit the potential biases – many of them unconscious biases (the evaluator may have mommy-issues or daddy-issues, may have been sexually abused as a child and harbor unconscious anger toward “abusive men”).

What type of “precautions” are taken?  None.

Child custody evaluations take NO precautions to limit “potential bias.”

What “precautions” did the custody evaluator take to ensure boundaries of competence?

This is an attachment pathology, a child rejecting a parent.  Where on the custody evaluator’s vitae does it demonstrate background training and experience in assessing, diagnosing, and treating attachment pathology?

This is a family conflict pathology.  Where on the custody evaluator’s vitae does it demonstrate background training and experience in family systems therapy.  Or do they assert that family systems therapy, one of the four primary schools of therapy and the only one dealing with families… is not relevant to boundaries of competence.

Do they believe that knowing about families and how families function is not required knowledge for assessing, diagnosing, and treating family conflict pathology?

How has the custody evaluator taken “precautions” to ensure their boundaries of competence?  What precautions?

“…do not lead to or condone unjust practices.”

Do you mean like denying people “equal access to and benefit from the contributions of psychology and to equal quality in the processes, procedures, and services being conducted by psychologists”? 

That type of “unjust practice”?

In issuing Model Standards of Practice for Child Custody Evaluations, and placing their professional endorsement and imprimatur of credibility onto the practice of child custody evaluations, to what degree has the AFCC incurred legal liability relative to the practice of child custody evaluations in forensic psychology?

I don’t know, I’m not a lawyer.

Craig Childress, Psy.D.
Clinical Psychologist, PSY 18857

 

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