“These evaluators are hired guns. They operate out of factories—report factories—where they churn out reports,” said Dineen. “There is no way they could be unbiased; there is a credibility gap, in my mind. You have experts battling one against the other, and you have to ask, Where is the expertise? If there were truth as the basis, all psychologists should then be operating from the same knowledge base, not battling one against the other.”
Sarah Ramsey, however, draws a sharp line between hired guns chosen and paid for by one parent and the more neutral, shared-cost private or court-appointed evaluators, and maintains that the latter serve a useful role in the system and can be very helpful in a variety of ways, including motivating parents to settle.
But the harshest critics of courtroom psychology flatly disagree. Margaret Hagen, a professor at Boston University, earned her Ph.D. in developmental psychology at the University of Minnesota. After her brother was sued in 1993 for $3.4 million in a case alleging psychological injury (he eventually won after a defense costing more than ninety thousand dollars), she wrote a scathing criticism of forensic psychology in her 1997 book, Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice. Hagen echoes Dineen’s skepticism of the credibility of most psychological syndromes and diagnoses, and she insists that the reason “psychoexperts” are tolerated in court is that they relieve judges from the responsibility of deciding the impossible and buffer them from reversal on appeal. And despite the American Psychological Association’s statement that “the psychologist should be impartial regardless of whether he or she is retained by the court or by a party to the proceedings,” Hagen sharply dismisses the possibility of impartiality from a hired evaluator. “Well, that is a good thought,” she writes, “but … after half the attorneys who hired me lose their cases because of my highly judgmental and prejudicial reports and testimony, whom do you think will be hired for the next disputed custody case? Me? The loose cannon who can be counted on to shoot his own client in the foot half the time?”
But maybe the essential question about evaluators is not one of impartiality or credibility, or even proven accuracy. The question might be much more fundamental. I went to see Minneapolis attorney Judith Johnson, who put it this way: “When ever in our lives is it a good idea to hand over complete control of the most important issues—issues of an entirely personal and intimate nature—to absolute strangers?”
Two hundred years ago, fathers had “chattel” rights, entitling them to all property and earnings, including their children, under any marital separation. But the shift from a colonial household economy to an urban economy sent fathers out of the home into a more removed workplace, and solidified the mother’s role as primary child raiser. Chattel rights gave way to what eventually became known as “the tender years doctrine,” which presumed that it was best for mothers to have custody of young children. This standard held sway in the courts for more than a century, until the 1970s.
According to Mary Ann Mason, a professor of law and social welfare at Berkeley, children prior to the 1970s were not held hostage by their parents’ divorces in the same way they are today. In The Custody Wars, she writes, “Under the ‘tender years’ doctrine, the presumption was that small children needed the nurture and stability of a primary parent. … The child then was assigned a single primary residence and a single primary parent—nearly always the mother. While this rule undoubtedly caused some unfairness, it did focus on the child’s need for nurture and stability rather than on the parents’ rights to access. It also discouraged dispute, since society’s attitudes were aligned with the law’s judgment about what was best for children.”
Today we are no longer homogeneous as a society when it comes to our beliefs about what’s good for children, and a return to the tender years doctrine—or chattel rights, for that matter—is nowhere on the horizon. Modern custody disputes, which parents may believe are personal battles over their emotional attachments to their children, have become another stage upon which the gender wars are being played out. Although laws governing custody disputes have changed again and again over the past three decades, those changes have been pushed more by the winds of gender politics than credible research findings about what’s best for children. And what is best for children? Most married parents don’t entirely agree on child rearing or on what’s best for their children. Today’s eminent child psychologists and parenting experts don’t agree on what’s best for children. Nor do the fifty states agree on which common standards ought to be considered in determining a child’s best interests. Therefore it’s not terrifically surprising that the best-interest standard has been difficult to apply.
The American Law Institute, an independent association of lawyers and judges that has wielded extraordinary influence over American legal practices since its founding in 1923, spent ten years evaluating family law before publishing a two-thousand-page report last year with recommendations for reform. The report, “The Principles of the Law of Family Dissolution: Analysis and Recommendations,” caused a lot of hubbub in the press because it proposed to extend marital and custodial rights to gay and unmarried couples. The report was immediately decried by conservatives as an assault on marriage, and the ensuing debate took center stage in the popular press. Meanwhile, the report’s less sensational recommendations for changes to existing custody and child support laws got buried or glossed over. Nonetheless, the report has been cited already in hundreds of scholarly articles, and its recommendations could substantially reform family law in the years to come.
The authors of the ALI report advocate for a predictable way to allocate parenting time and responsibility post-divorce by looking at a couple’s parenting history and using that first and foremost as the determining factor. “It’s called the approximation rule,” said Ramsey. “It’s much less ambiguous than the ‘best interest’ standard and it has the potential to eliminate the need for experts, because laypeople can testify as to who did what and how often for the kids. It’s not a psychological assessment—you don’t have to say what’s best, just who did what.”
As for child support, the report’s authors say it should be calculated based on income and parenting time, and that when the custodial parent has less income than the noncustodial parent, the child support would be greater than under most current laws. The report was drafted with the intent to set guidelines for individual judges and state legislatures so that laws from state to state could become more consistent. As it is, people feel a sense of injustice when judicial decisions are a matter of luck or who the judge is. The report’s authors also acknowledged that if judicial decisions are more predictable, more couples will settle out of court—and perhaps with less warfare.
“An indeterminate standard for custody decisions, such as ‘the best interests of the child,’ can be an inadvertent invitation for litigation and employing experts to help decide what is ‘best,’” said Ramsey. In other words, ambiguity in our current cultural and legal assumptions helps to fuel dispute and litigation at the individual level. And with this ambiguity comes the use of expert testimony or forensic psychology as a means of illuminating decisions for the unenviable judges and referees of family court who, in the words of one Ramsey County referee, are in custody cases doing what amounts to “performing brain surgery with a chainsaw.”
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