FORENSIC FALLACIES IN FAMILY COURT:
THE MYTHS AND THE FACTS
In green: what the pundits, spin-meisters, and study summarizers SAY the studies have found (frequently interposed with could-bes, should-bes, what-ifs, comments, faulty conclusions, and suppositions without cites), and, in black: what the research actually says!
Myth -- Psychology is a science.
Fact: "Psychology and psychiatry have never been based in science."
Myth -- It's a violation of psychology ethics to fully disclose test data and materials in discovery.
Fact: It's a sanctionable violation of due process to NOT do so.
Myth -- Junk science in the courtroom can be countered by opposing expert testimony.
Finding: "The presence of opposing expert testimony caused jurors to be skeptical of all expert testimony rather than sensitizing them to flaws in the other expert's testimony... Thus, contrary to the assumptions in the Supreme Court's decision in Daubert, opposing expert testimony may not be an effective safeguard against junk science in the courtroom." (On the other hand, skepticism of all expert testimony might not be such a bad thing.)
Lora M. Levett and Margaret Bull Kovera, The Effectiveness of Opposing Expert Witnesses for Educating Jurors about Unreliable Expert Evidence. Journal Law and Human Behavior, Volume 32, Number 4 / August, 2008.
Myth -- Psychologists and other "mental health professionals" are trained, and better able than non-psychologists, including family court judges, to evaluate family situations and render opinions on appropriate child custody arrangements.
Fact: False. They have no special abilities by reason of their profession that enable them to investigate facts, determine credibility, see into the workings of people's minds, ascertain parenting capacity, glean the truth, make predictions about child development, determine whether past facts happened, assess risks, determine what is in children's interests, or make recommendations that will promote children's long-term well-being.
See the THERAPEUTIC JURISPRUDENCE index at http://www.thelizlibrary.org/therapeutic-jurisprudence/index.html, and the hundreds of supporting citations at Child Custody Evaluations: Reevaluating the Evaluators and at Custody Evaluator Quotes
Myth -- The research literature cited in law journals, and/or presented at professional and interdisciplinary conferences* to lawyers and judges represents a scientific consensus about what is in children's best interests.
*E.g. AFCC, and other venues that prominently feature mental health trade promotion in the courts (therapeutic jurisprudence) in which lawyers and judges interact or present talks in conjunction with mental health therapists and psychologists looking for work in the courts, such custody evaluators, mediators, and parenting coordinators.
Fact: Unfortunately, it is more likely than not that what is presented in these forums is cherry-picked and misrepresentative. Some of this is deliberate, but some of it is a result of inadvertent group think, narrow specialization that distorts perspective, or "publication bias" -- the tendency of agenda'd researchers to not present or publish findings that do not promote their agendas.
See the hundreds of supporting citations at Child Custody Evaluations: Reevaluating the Evaluators, http://www.thelizlibrary.org/child-custody-evaluations.html and Custody Evaluator Quotes
Comment: "Much of the research in developmental psychology addresses the question 'How do parents socialize their children?' without asking 'Do parents socialize their children?' Surprisingly little of the developmental psychology research can be used to assist family courts, due to flaws such as the following:
- "1. Very few of the studies provide a way to distinguish genetic influences from environmental infludences. 2. Hardly any of the studies provide a way to distinguish child-to-parent effects from parent-to-child effects. 3. The researchers have not distinguished between the child's behavior at home and the behavior outside the home: they've simply assumed that measuring one tells you something about the other. 4. The researchers have failed to consider circumstances that might influence children's experiences outside the home... 5. Demographic factors have not been adequately controlled... 6. Many m ethodological errors have been made. 7. More generally, the research was not carried out in the impartial manner that is demanded in other scientific disciplines..."
Gregory DeClue,"The Best Interests of the Village Children, 30 J of Psychiatry and Law 355 (2002).
Myth -- Psychologists and other child custody evaluators can make an assessment of parenting skills and behaviors that will lead to better child development outcomes.
Fact: There is no scientific knowledge that mental health professionals have that can assist a court in this regard. There currently does not exist, and likely never will exist any "empirically grounded list of effective parenting skills or behaviors". Nor can the personality of the parents be distinguished in its environmental effects from heredity.
See Gregory DeClue,"The Best Interests of the Village Children, 30 J of Psychiatry and Law 355 (2002).
and see the hundreds of other supporting citations at Child Custody Evaluations: Reevaluating the Evaluators, http://www.thelizlibrary.org/child-custody-evaluations.html and Custody Evaluator Quotes
Myth -- "Equality under the law" means that men and women are the same in all ways.
Fact: "Equality" under the law means that WHEN men and women are the same in all ways, the law will treat them that way, and that when they are not, the law will not default to what is characteristic of "man" as the standard. Thus, "equality under the law" means more than merely consideration of each person as an individual. It also means that that "consideration" will not be cast in terms of standards and rights that can attain only to non-gestating human beings. The law will not determine what is "reasonable" with reference solely to what would be "reasonable for a man;" the law will not determine what is "just" by reference solely to what could be "achievable by someone who cannot gestate;" and the law will not ignore reproductive differences between mothers and fathers where they do indeed exist and have effect.
Are Psychologists Hiding Evidence?
Therapeutic Jurisprudence Index
Are Psychologists Hiding Evidence?
Child Custody Evaluations -- Reevaluating the Evaluators
Custody Evaluation Guidelines -- Reevaluating (mirror)
Right of First Refusal in Parenting Plans
Child Custody Evaluators "In Their Own Words"
Parenting Coordination, a bad idea
Parenting Coordinator Practical Considerations
Those Joint Custody Studies
Psychological testing, MMPI2, in child custody evaluations