EVIDENTIAL STANDARDS OF CUSTODY & TIMESHARING
REPORTS:  Are Reliability and Validity Standards Taking a Back Seat?

 By:

Charles F. Vuotto, Jr., Esq.
and
Lisa B. Steirman, Esq.

          As the Family Part Courts of our state struggle to handle mounting dockets, they continue to place greater weight on the custody/timesharing recommendations of expert mental health professionals.  As a result, there is growing concern among the legal community that the legal standards of evidentiary reliability are being eclipsed by the court’s  deference to the mental health expert’s opinion.  The result of such deference is a highly disconcerting situation wherein the best interests of a child is decided not by the court after careful consideration of all relevant law and evidence in a particular case, but rather decided based on the court’s adoption of an expert’s opinion that may lack sufficient legal and empirical support.  Unfortunately, it is the child who may be harmed under these circumstances.  

It is the position of the authors that it is the responsibility of both bench and bar to ensure that mental health experts are held to the same evidentiary standards that apply to all experts pursuant to the law of our state.  As will be addressed in detail below, once the appropriate evidentiary standards are applied, it is evident that mental health professionals are not legally authorized to make ultimate recommendations as to what custody/timesharing arrangement is in the best interest of a child.  However, mental health professionals can play a critical role in offering a court vital information upon which a court can rely in reaching its final custody/parenting time determination based upon statutory criteria.  This article will attempt to provide the basic evidentiary standards to be applied in the context of child custody litigation, outline how the techniques and tests employed by mental health experts often fail to meet those standards, and ultimately offer recommendations to help guarantee that a mental health expert’s testimony is admissible in a custody litigation

A BRIEF SYNOPSIS OF NEW JERSEY LAW GOVERNING THE ADMISSION OF EXPERT TESTIMONY

Rule 702 of the New Jersey Rules of Evidence governs the admissibility of expert testimony and provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Rule 702.

When determining the admissibility of expert testimony in New Jersey, the evidentiary test established in the 1993 case of Frye v. United States[1] (hereinafter referred to as the Frye Test) remains the appropriate evidentiary standard in most cases wherein the admission of scientific evidence is at issue.[2]  In Frye, the Court established what is commonly referred to as the “general acceptance standard,” which requires that scientific testimony is only admissible if it is based on a scientific technique that is generally accepted in the relevant scientific community.[3]  

The Supreme Court of New Jersey has declared that general acceptance under the Frye test “entails the strict application of the scientific method, which requires an extraordinarily high level of proof based on prolonged, controlled, consistent, and validated experience.”[4]  Moreover, the inquiry into general acceptance does not only require a finding that the scientific technique or procedure is generally utilized in the particular scientific profession, but further requires that “the scientific technique or procedure be accepted as scientifically reliable” within the profession.[5]  New Jersey courts have interpreted the Frye Tests as requiring that the general acceptance of scientific evidence may be demonstrated in three specific ways: “(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert’s premises have gained general acceptance.”[6] 

          Subsequent to Frye, the Supreme Court of the United States rejected the Frye test as an absolute prerequisite to admissibility.[7]  In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Court abandoned the Frye “general acceptance” test in favor of a more relaxed standard.  Specifically, the Daubert Court held that scientific expert testimony was admissible even in situations where general acceptance could not be proven so long as the court could determine that the testimony had evidentiary reliability and relevance.  In reaching a determination as to evidentiary reliability, the Court may examine such factors as whether the theory or technique has been tested, peer review, error rates, and acceptability in the relevant scientific community.[8]

          With limited exceptions,[9] the more relaxed Federal evidentiary principles established in Daubert have not been adopted by the courts of New Jersey, who continue to apply the Frye test when determining the admissibility of scientific evidence.[10]  Indeed the Frye test has been specifically applied by New Jersey courts to expert testimony concerning behavioral science. [11]

WHY MENTAL HEALTH EXPERTS ARE FAILING TO MEET EVIDENTIARY STANDARDS

          The professional discipline of psychology is grounded in the principle that conclusions regarding human behavior can be drawn from scientific evidence and tested via scientific method.[12]  Pursuant to the Frye test, the expert opinion of mental health professionals must be derived from scientific data that is generally accepted in the scientific community as reliable and valid in order to be admissible in a courtroom.  Unfortunately, child custody/timesharing expert testimony has faced increasing criticism due to the “lack of scientific methodology, empirical grounding, and psychological relevance” employed in reaching conclusions and rendering reports.[13] 

Predictions as to the Best Interests of a Child

          The most glaring overreaching of mental health professionals undoubtedly occurs when a mental health expert gives the court an ultimate recommendation as to what custodial/timesharing arrangement is in the best interests of a particular child.  Such a recommendation cannot possibly pass the scrutiny of the Frye test as there is a patent absence of empirical data to support that recommendation.[14]  Indeed, there exists no validated psychological test that either assesses parenting directly or empirically supports a decisive determination concerning the appropriate custodial arrangement for a particular child.[15] 

Interviews

          The major concerns surrounding the mental health expert’s interviewing of parents or children focus on “problems of reliability and relevance.”[16]  Specifically, criticisms surrounding a lack of reliability in the interview process cite the mental health expert’s gathering of interview data that is “subjective, partial, or unscientific in manner.”[17]  Frequently raised is the issue of “confirmatory bias,” which results when a mental health expert seeks out information that verifies his or her predetermined theory, to the exclusion of all other information that is contrary to that theory.[18]  Relevancy problems frequently arise in the context of a mental health expert’s interview when the mental health expert “fails to address the pending psycholegal issue of comparative parenting capacity.”[19]  Indeed, a mental health expert’s focus on identifying psychopathology in a particular parent is only relevant if there is reliable empirical data to support a linkage between the specific pathology identified and parental fitness.[20] 

Psychological Testing

Objective Adult Personality Tests:  MMPI and MCMI

The MMPI (Minnesota Multiphasic Personality Inventory) is undoubtedly the most frequently employed objective adult personality test found in custody/timesharing evaluations.[21]  The MMPI was not developed to determine parenting abilities, but was rather developed to screen for severe pathology.  The test consists of a lengthy series of true or false questions.  The test “is based on the assumption that people who answer the test questions in a manner similar to members of a particular group are likely to behave in ways similar to members of that group.”[22]  The scant research that has been performed relating to the connection between an individual’s MMPI result and the behavior and adjustment of that individual’s child “suggest a complex and inconsistent association between MMPI profiles of parents and their children’s behavior or pathology.”[23]  There exists no single MMPI profile that is capable of identifying an individual as a ‘good’ or ‘bad’ parent.  Although the “MMPI may provide reliable information about parents’ psychopathology and emotional functioning,” the MMPI “contains no scale to predict what custodial arrangements will further the best interest of a child.”[24]  Given the widespread application of the MMPI in custody/timesharing evaluations, the dearth of case law questioning the reliability and relevance of the test in custody evaluations is disconcerting.[25]

The MCMI (Millon Clinical Multiaxial Inventory) is the second most popular adult personality test utilized in custody/parenting time evaluations.  Containing a series of true or false questions, the MCMI is intended to evaluate personality disorders based on Theodore Millon’s theory of personality, “which posits three polarities to explain behavior:  pain-pleasure, self-other, and active-passive.”[26]  Those who criticize the use of the test stress that since the MCMI was developed on clinical populations, the test is skewed toward findings of pathology in the subject individual.  “Accordingly, it is not surprising that [the MCMI’s] critics claim that it is inaccurate in child custody disputes and makes parents appear more pathological then they likely are.”[27]  Also, just as with the MMPI, there is widespread criticism that the MCMI lacks the scientific validity necessary to defend its use in a custody evaluation.[28]

It is crucial to be aware that “no personality tests measure parenting competency, nor has any constellation of personality traits been linked to skill as caregiver.”[29]  Therefore, “[i]t is impossible to determine from test results alone if a parent’s measured response patterns are related, either directly or indirectly, to parenting competencies.”[30]  If this is true, then how can custody and parenting time conclusions premised on these tests pass the Frye Test?

Projective Techniques:  Rorschach Inkblot and Thematic Apperception Test

The Rorschach is the most frequently employed projective technique found in custody/timesharing evaluations.  The Rorschach technique involves ambiguously shaped inkblot drawings that are shown to the subject individual who is then asked what he or she sees.  Based on the individual’s answer, a projection of the subject’s psychopathology and personality is determined.[31]  There is much debate surrounding the general reliability of the Rorschach technique within the scientific community.  These general concerns of reliability are further compounded when the test is used in the setting of custody litigation since “[n]o studies correlate personality attributes identified by Rorschach with good parenting…”[32]  Despite this lack of empirical support, there is an absence of case law questioning the admissibility of the Rorschach test in custody litigation.  “In contrast with the vigorous debate about the relevance and reliability of the Rorschach in child custody evaluations that has taken place in the scientific community, the legal system has largely ignored these criticisms in admitting the Rorschach in child custody evaluations.”[33]

The TAT is another projective technique that involves 31 cards reflecting drawings of people in ambiguous situations.  The subject individual is asked to tell a story concerning what is happening in each of the drawings.  The most common method of interpretation of the individual’s response is “informal and relies on the examiner’s subjective impressions.”[34]  Common criticism of the test include “inadequate and empirically unsupported norms for scoring and unimpressive incremental validity.”[35]  With specific regard to use of the TAT in custodial litigation, “[p]rojective measures have not been shown to have the requisite psychometric properties to render them reliable or valid for predicting custodial functioning.”[36] 

Succinctly stated, “no empirical behavioral science literature exists demonstrating that projective drawings are related to any specific element of a parent-child relationship, or are predictive of any particular parenting practices or developmental outcomes.”[37]  Therefore, commentators have noted that it  “constitutes poor professional practice for an evaluator to render psycholegal conclusions about adult personality structure and psychological functioning on the basis of projective drawings.”[38]

As one commentator eloquently noted:

It is difficult to reconcile the legal system’s largely unquestioned acceptance of the Rorschach and the TAT with the fervor of the scientific community’s criticisms of the tests’ reliability and their reliability in custody evaluations.  How can the law be a critical consumer of mental health practitioner expertise if it ignores the scientific community’s critiques of proffered expert testimony and fails to apply discriminating threshold standards for the admissibility of expert evidence derived from these tests?[39]

Custody Specific Tests:  Bricklin and Ackerman Schoendorf Scales

          Recently, tests have been created that are specifically designed to assess children during custody evaluations[40].  Three distinct types of Bricklin tests include the Bricklin Perceptual Scales (BPS), the Perception of Relationships Test (PORT) and the Parent Awareness Skills Survey (PASS).  The BPS tests contains 64 questions which ask for a subject child’s rating of his or her parents’ functioning.[41]  Based on the child’s answers, a score is created that reflects the child’s “perception of their parents’ competence, supportiveness, consistency, admirableness.”[42]  The parent who receives the highest scores is regarded as the parent of choice for custody.  The PORT is a projective test wherein a child is asked to perform specific tasks that include drawing each parent, drawing him or herself, drawing a family, and completing stories concerning the family’s conflict.  The results of the tasks are then scored to determine which parent is the primary caretaker of the subject child.[43]  The PASS measures the parents’ “awareness of social issues, ability to explore solutions, and acknowledgment of children’s behavior.”[44]  The PASS “consists of 18 typical child care situations or dilemmas and represents a sampling of relevant parenting behaviors that can be applied to children of various ages.”[45]  Parents are asked how they would respond to each situation.  The test “appears to be rooted in the commonsense notion that strengths and weaknesses in parents’ child-rearing abilities can be assessed, in part, by querying parents about how they would respond to various child care scenarios.”[46]

          The amount of criticism surrounding the Bricklin tests is impressive; nonetheless, family courts place no limits on the admissibility of these tests.  Critics of the Bricklin tests note “test developers do not provide validity data and that the scales are conceptually flawed and seek to measure constructs that are not empirically testable…”[47]  Critics emphasize that the methodology behind the test is flawed, asserting that “[t]he measures contain unrealistic or untested assumptions…developed on inappropriately small, inadequately described, or inappropriate clinical samples, lack adequate reliability and validity…”[48]  Moreover, there is a blatant absence of published studies that confirm the validity of these tests.[49]

          The Ackerman-Schoendorf Scales (“ASPECT”) were designed to determine parental fitness.  The ASPECT includes interviews of parents and children, a parent questionnaire, and numerous projective and objective tests.  Based on the cumulative data from these sources, three standardized scales are developed, namely the “(1) observational scale: quality of parents’ appearance in the evaluation; (2) social scale: social and intra-familial relationships, and (3) cognitive emotional scale: emotional and cognitive parenting abilities.”[50]  These three scales are then applied to determine a “parental custody index” that measures parental fitness.[51]

          Just as with the Bricklin scales, there is much criticism surrounding the ASPECT test that focuses on a lack of validity and methodologically sound published research.[52]  Critics note that the “The ASPECT needs more normative, reliability, and validity data before one can conclude that it fulfills its promise of being a practical, objective, and standardized approach to child custody evaluations.”[53] 

PROPOSED GUIDELINES TO ENSURE EVIDENTIARY ADMISSIBILITY

          Although adherence to the evidentiary standards of our state renders the ultimate custody/timesharing recommendations of a mental health expert inadmissible, the mental health expert can be crucial in providing the court with empirically sound data concerning individual and family functioning that will assist the court in reaching a decision as to what custodial/timesharing arrangement is in the best interests of a child.[54]  It is when the expert’s conclusion exceeds that which can be gleaned from a scientific technique generally accepted in the relevant scientific community that evidential standards are violated.  The following are suggestions offered by the authors and intended to aid in ensuring that the expert testimony of the mental health expert meets the required evidentiary standards:

1.     The Mental Health Expert Must Acknowledge the Limitations of His Expert Opinion as They Relate to the Ultimate Question of What Custodial Arrangement is in the Best Interests of a Child.  In order for a mental health expert’s testimony to be admissible in the context of a child custody/parenting time dispute, it is crucial that the mental health expert acknowledge the limitations of the scientific data employed.  The mental health expert must acknowledge that his or her ultimate recommendation as to what custody/timesharing arrangement is in the best interests of a particular child cannot withstand a Frye test application.  Especially in the area of psychological testing, it is crucial to emphasize that frequent utilization of a test is not sufficient to demonstrate ‘general acceptance’ under the Frey test.  The inquiry into general acceptance further requires that “the scientific technique or procedure be accepted as scientifically reliable” within the profession.[55]  Therefore, as demonstrated above, although certain scientific methods and tests are commonly employed in child custody/timesharing evaluations, these tests cannot withstand a Frye test application since these tests have not proven themselves “scientifically reliable” in the context of determining ultimate custody/timesharing recommendations for a particular child.

2.     The Mental Health Expert’s Testimony Must Meet the Standards of the Frye Test.  Although empirically insufficient to support an ultimate finding concerning what custodial relationship is in the best interests of a child, mental health experts can offer invaluable information to the court concerning child development and family dynamics.  Such information can play a critical role in aiding the court in reaching its determination as to what custodial arrangement is in the best interests of a child.[56]  However, it is critical that all information provided by the mental health expert withstand a Frye test inquiry.  In order to meet the evidentiary requirements of the Frye test, admissibility must be demonstrated “(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert’s premises have gained general acceptance.“[57]   Since case law is devoid of any judicial findings as to the general acceptance of the psychological methods and tests at issue in a custody evaluation, it is crucial for the mental health expert to address whether the scientific technique or procedure is accepted as scientifically reliable within the profession for the exact purpose that it is being employed by the expert.  Moreover, the mental health expert should be prepared to demonstrate that the particular method or procedure is the subject of “authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony.”[58] 

3.     The information proffered by the mental health expert must be relevant to the specific issue raised in a particular litigation.  In order for any expert testimony to be admissible, it must be directly relevant to the issue presented to the court.[59]  Rather than simply requesting that a mental health expert perform a general ‘custody evaluation,’ the court and respective counsel in a given case should construct case-specific issues to be addressed by the mental health expert (i.e., drug abuse, overly harsh discipine, etc.).[60]  Adherence to these specific areas of concern will help diminish the mental health expert’s use of irrelevant findings and diagnosis that serve to unduly complicate and even prejudice the expert’s testimony[61]. 

Conclusion

The testimony of mental health experts must be held to the strict standards of evidence that have become the hallmark of our legal system.  Without strict adherence to these evidentiary standards, the critical question concerning what is in the best interests of a child will continue to be decided by a mental health expert’s testimony that may be plagued with personal value judgments and non-scientific speculations, rather than by a court after careful consideration of the law (i.e., statutory custody factors and decisional law) and empirically sound data.  If the foregoing suggestions are employed by the mental health expert, bench and bar, we can ensure that the mental health expert is available to offer invaluable data to the court, while simultaneously limiting such information to “empirically-based psychological testimony that represents and reflects the highest standards of the scientific study of human behavior.”[62] 

Mr. Vuotto is a shareholder with Wilentz, Goldman & Spitzer, certified by the Supreme Court of the State of New Jersey as a Matrimonial Law Attorney and is a member of the Executive Committee of the New Jersey State Bar Association’s Family Law Section. 

Ms. Steirman was an associate with Wilentz, Goldman & Spitzer.