Written by attorney Peter Christopher Lomtevas

Psychobabble and Psychological Testing: Custodial Evaluation Manipulation - The Psychologist

This discussion arises within the context of a typical family court custodial case. The Court appoints a custodial evaluator to perform a custodial evaluation. In California, these are known as Evidence Code (“EC") 730 evaluators. In Colorado, these are Child and Family Investigators (“CFI"). In New York, they are simply referred to as “custodial evaluators". These are almost always psychologists listed on an appellate division “resource list" and they become the expert witnesses for the court by an order of appointment. They produce reports for the court. The intended objective is to determine the best fit for the child: whether with the father or the mother. However, this objective is seldom reached.

This discussion serves to reveal misuse of psychological testing and to warn an unwary public of what can happen in their custody case in a family court. The reader is reminded that many of the 3,143 county evaluators across America are conscientious. They may render the most accurate findings and conclusions in their report. However, many act outside the scope of their training and experience and try to fill in gaps in their knowledge of families and children with other forensic knowledge. Many of these evaluators are unscrupulous. They deliberately manufacture facts and apply them to incorrect psychological principles to achieve desired outcomes in cases.

Typically in the worst case, the psychologist becomes a court without walls. He is appointed pursuant to court order and can convene meetings with people. He can derive testimonial evidence from people, incorporate what he likes into his report and then custom fits psychological testing in order to impeach or to bolster certain testimony. Typically, interviewees are not sworn to tell the truth and appear for questioning without counsel. No stenographic record is made. Then, the report is sent to the court.

On a sinister level, the psychologist can complain of recalcitrant professionals to the appointing court. School professionals can be complained of to their licensing bodies and attorneys can be disciplined for challenging the evaluator. Indeed the local appellate division disciplines its lawyers, overrules its judges’ orders, regulates attorneys for children and hosts rosters of “approved" psychologists.

With this immense authority, typically, the evaluator enjoys testimonial immunity against law suits brought by parents. In some jurisdictions like New York, that immunity can be vacated if there is evidence of gross negligence in the performance of forensic duties. However, courts and lawyers typically do not have the forensic expertise to identify such negligence in the work product of the psychologist. Judges fear appellate division disapproval of trial challenges of its psychologists.

It is the goal of this discussion to bring awareness of these malfeasances and assist the unwary litigant in seeking professional help when confronted with them.

The Psychologist's Qualifications: The Foundation

The Court’s expert (“psychologist" or alternatively “expert", “he", or “him") typically will produced an extensive resume or curricular vitae that indicates no recent professionally developmental coursework, will show no publications and will show absolutely no reference to any training or experience in families and children. This happens because the court’s experts are ordinarily borrowed from other litigation, like criminal litigation, where they are needed as substance abuse experts or personality disorder experts.

As already mentioned, appellate divisions maintain rosters of these psychologists and some states like California “certify" them for testimony at trial. Such certification almost always precludes challenge because one must retain a “certified" psychologist in rebuttal.

The court’s expert usually completes his doctorate in psychology without showing an area of concentration and may list as his/her primary source of experience as something unrelated to children and families.

In an attempt to look good before a children’s’ court, the expert will say he is “court psychologist" over a period of years but not listing a single case reference in his resume. The defense to questions in this area is almost always that these cases were confidential and they cannot be listed. For “Selected Training", he will list neither start dates nor durations of his “selected training".

Peer review is the process by which numbers of psychologists approve and agree with the one psychologist. This is the principle that truth is the concert of many voices. As to peer review, the court’s psychologist will have nothing current as to articles, nothing current in his presentations, nothing current in his ABA Presentations and nothing current as to media interviews. This indicates the expert has settled in to a mix of private and court practice and does not need to pursue additional learning.

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