The Association of Family and Conciliation Courts (AFCC) has undertaken an initiative to focus the attention of custody evaluators, family law attorneys, and in this writer's view most importantly, the courts, on the importance of using social science research in family law matters. In 2018, this interdisciplinary organization made up of lawyers, judges, and mental health professionals, promulgated Guidelines for the Use of Social Science Research in Family Law. In October of this year, it will conduct a three-day conference in Pittsburgh largely devoted to this critically important topic.

While the Guidelines rightly emphasize the importance of distinguishing valid from invalid research, there is an antecedent issue that deserves equal, perhaps greater, attention. That is the distinction between (1) evaluations that are based upon the accumulated knowledge of the psychology discipline, as established by empirical research reported in the peer-reviewed literature of the discipline; and (2) those evaluations that are not so predicated, but instead bandy about cavalier opinions without so much as a nod to the research-based body of demonstrable knowledge that represents the essential core of the psychology discipline.

To appreciate the prevalence of forensic evaluations that are detached from psychology's knowledge base, lawyers and judges need answer just one simple, clarifying question: When is the last time you read a forensic custody report that was replete with research citations supporting each inference, conclusion and opinion expressed therein? More tersely stated, Where's the science? This article will address the essential role of psychological research in the conduct of forensic custody evaluations. It will further address the abandonment of that research-base by no small number of evaluators, and the significance of that dereliction, which must be fully understood by the lawyers and judges who are the consumers of these reports.

What Is Psychology?

Given that custody evaluators are typically qualified in court as "experts" based on the strength of their formal degrees and certifications in the subject of psychology, it is important, at the threshold, to understand what psychology is. Psychology defines itself as "the scientific study of behavior and mental processes." Morris, C.G. & Maisto, A.A., Psychology: An Introduction [Eleventh Edition], Prentice Hall, p. xii, [2002] (emphasis added). Remove the word "scientific" from that sentence and one is no longer talking about psychology. Other fields of intellectual inquiry, e.g., philosophy, theology, etc. speculate on questions of human behavior and mental processes. Psychology, in contrast, rejects speculation and commits to confining its conclusions to those that are predicated upon demonstrable knowledge as established through research grounded in the scientific method.

Wilhelm Wundt, generally acknowledged as the founder of modern, scientific, psychology, set up the first psychology laboratory in 1875 at the University of Leipzig. Wundt was committed to establishing psychology as a new discipline, independent of philosophy and free of the speculative bog so typical of the latter. As explained in one notable text: "[T]he science of psychology emerged in the 19th century only after the term "psychology" had been adopted for a field of study that was amenable to a scientific approach, as methods of science began to be applied to many areas of study traditionally encompassed within philosophy." Freedheim, D.K., Weiner, I.B., Handbook of Psychology, Vol. 1, History of Psychology (Wiley, 2013), p. 1 (emphasis added).

In his classic work, How to Think Straight About Psychology, now in its 11th edition, (Pearson Education, 2019), psychology professor and award-winning author, Keith E. Stanovich frames the issue beautifully by setting forth the most fundamental concepts that lie at the heart of the psychology discipline:

There are really only two things that justify psychology as an independent discipline. The first is that psychology studies the full range of human and nonhuman behavior with the techniques of science. The second is that the applications that derive from this knowledge are scientifically based. Were this not true, there would be no reason for psychology to exist.

Stanovich, p. 4.

Stanovich makes clear that the singular feature of psychology is its rejection of speculation and its faithful adherence to the scientific method as the basis for any conclusions that the discipline puts forth. He states:

Psychology is different from other behavioral fields in that it attempts to give the public two guarantees. One is that the conclusions about behavior that it produces derive from scientific evidence. The second is that practical applications of psychology have been derived from and tested by scientific methods.

Stanovich, p. 4.

Stanovich notes that psychology often falls short of these goals and explains why this is so. He explores "the issue of psychologists themselves undermining their own legitimacy by not meeting appropriate scientific standards." In doing so, he opines that "in principle, these are the standards that justify psychology as an independent field. If psychology ever decides that these goals are not worth pursuing—that it does not wish to adhere to scientific standards—then it might as well fold its tent and let its various concerns devolve to other disciplines because it would be a totally redundant field of intellectual inquiry." Stanovich, p. 4.

Succinctly stated, adherence to the scientific method is the only thing that justifies psychology as an independent discipline. As Paul E. Meehl, a revered figure in the annals of psychology, has also noted, without adherence to the demonstrable knowledge produced by the scientific research of the discipline, psychologists are "little more than be-doctored, well-paid soothsayers." Meehl, P.E., Philosophy of Science: Help or Hindrance? Psychological Reports [1993] 72, 707-733: 728. In similarly pithy terms, one past President of the American Psychological Association (APA), in attempting to defend his organization from an impending exodus by the science-faithful psychologists (who ultimately broke away and formed what is now known as the Association for Psychological Science) declared, "Our scientific base is what sets us apart from the social workers, the counselors, and the Gypsies" (as cited in, Dawes, R.M., House of Cards, The Free Press, 1994, p. 21).

As Stanovich notes, however, there was a distinct duplicity in the APA's insistence on its scientific status:

But the very methods that the field holds up to justify its scientific status have revealed that the implication that licensed psychologists have a unique "clinical insight" is false. It is such intellectual duplicity on the part of the APA that spawned Dawes's work and that in part led to the formation of the Association of Psychological Science in the 1980s by psychologists tired of an APA that was more concerned about Blue Cross payments than with science.

Stanovich p. 135.

Another standard psychology text makes the point in terms that lawyers can readily appreciate: "In business, the motto is 'show me the money.' In science, it is 'show me the evidence.'" Myers, D.G., Psychology, 7th Edition, Worth Publishers, 2002, p. 23.

In psychology, the "evidence" equates to the demonstrable knowledge produced by published research that has been conducted in accordance with the scientific method. Thus, a more precise question that the custody evaluator must answer is, where is the research that supports your conclusions?

Scientific Method

Given that the scientific method stands at the center of the psychology discipline, lawyers and judges, who rely on its work-product, had best be acquainted with its contours. Scientific method is the process by which theories, psychological and otherwise, are tested to distinguish between demonstrably valid knowledge and unsubstantiated beliefs, otherwise known as speculation. It is "a simple three-step process" of observation, speculation, and testing. Carey, S.S., A Beginners Guide to Scientific Method, Third Edition, Thomson-Wadsworth, 2004, p. 3. It warrants emphasis that in the absence of Step Three, testing, the validity of any given theory, idea, or concept remains unknown, and it remains mired in the swampland of speculation.

To illustrate how this three-step process of (1) Observation, (2) Speculation, and (3) Testing might work in the custody evaluation context, consider the following example: Suppose a custody evaluator, over the course of time, notices that when he or she observes Parent Behavior "A," he or she often observes Child Behavior "B." This is the observational stage of the scientific method. It is the point at which one's observational experience can inform the scientific process by suggesting possible questions to be examined through research, though experience alone cannot provide the answers to those questions—i.e., the evaluator's experience, in the absence of testing through well-designed research, cannot demonstrate the validity of knowledge. Thus, in our example, the psychologist's observations (Step One) raise the question of whether there is a relationship between Parent Behavior "A" and Child Behavior "B."

At Step Two, the speculation stage, the evaluator fashions a theory. Theories, of course, to paraphrase the old saw, are like noses, or certain other choice anatomical parts—everybody has one. To be valuable, however, a theory must be able to generate testable hypotheses. Hypotheses are predictions that can be tested and, by such testing, either be confirmed or disconfirmed. Thus, let us assume that our custody evaluator speculates (Step Two) that there is a correlation between Parent Behavior "A" and Child Behavior "B." Thus, the evaluator or, more likely, a psychological researcher from the academic community, must generate a predictive hypothesis, i.e., a specific prediction of the outcome that should be observed if the theory is valid, and then design and conduct the research that will test the validity of the theory. He or she might hypothesize that if a sufficiently large random sample of parents and children are studied there will be a statistically significant differential, i.e., a significantly more frequent occurrence of Child Behavior "B" for children whose parents engage in Parenting Behavior "A" than for those children whose parents do not engage in that behavior.

Step Three (Testing) is the actual research that is conducted to see whether the prediction holds true, whether there is a correlation between the parental behavior and the child behavior under scrutiny. If there is, and if the test can be replicated by other researchers to confirm or disconfirm the findings, the theory is at least on the path to attaining the status of demonstrable knowledge, i.e., validity. Parenthetically, it should be noted that this will not prove causation but only correlation. Assuming correlation is found, further research would be required to determine whether the parental behavior causes the child behavior or vice versa, or whether a third variable is in play that is impacting the behaviors. On the other hand, the research might demonstrate that the Child Behavior being examined is equally present in families where the Parent Behavior being studied is not present; or that the Parent Behavior in question is commonly encountered in families where the child does not exhibit the Child Behavior in question. Such findings would tend to disconfirm the theory.

The point is that until well-designed, replicable research is carried out and confirms the theory, the evaluator simply does not know whether his or her theory is valid. Observational experience, without such research, is nothing more than speculation, something the law of evidence forbids. Barker, R.A., Alexander, V.C., Evidence in New York State and Federal Courts, §7.12, West, 2019.

So central is psychology's commitment to science that even the APA, which, as previously noted, has itself been criticized as being insufficiently committed to its science, mandates its use in the Ethical Principles and Code of Conduct: "§2.04. Bases for Scientific and Professional Judgments. Psychologists' work is based upon established scientific and professional knowledge of the discipline."

The APA's Guidelines for Child Custody Evaluations in Family Law Proceedings underscore that the evaluator must maintain "an evolving and up-to-date understanding" of the discipline's knowledge with respect to the many issues involved in an evaluation. AFCC's Model Standards of Practice for Child Custody Evaluations go even further. In §4.6, they direct that "custody evaluators … are strongly encouraged to utilize peer-reviewed published research in their reports" and "to utilize and make reference to pertinent peer-reviewed published research in the preparation of their reports," providing full citations thereto.

Thus, prominent writers in the field are on solid ground when they declare, "psychologists have an ethical responsibility to limit their recommendations to those for which there is empirical support." Martindale, D.M., Gould, J.W., "Custody Evaluation Reports: The Case for Empirically-Derived Information," Journal of Forensic Psychology, Vol. 7(3) 2007, pp. 87-99; at 87-88. They have further noted that "the legal system's requirements for reliable and relevant information are consistent with psychologists' ethical obligation to base their opinions on scientific knowledge and on techniques developed through scientific research." Martindale & Gould, p. 88.

David A. Martindale, a prolific authority in the field of forensic psychology and the lead author of the above-quoted article, has, in a separate piece, pinpointed the impact of this ethical mandate in terms highly relevant to evidentiary doctrine:

There is an important difference between an expert opinion and a personal opinion. When an expert has formulated an opinion, it is reasonably presumed that the expert has drawn upon information accumulated and published over the years. The defining attributes of an expert opinion relate not to the credentials held by the individual whose fingers type the words or from whose mouth the words flow; rather, the requisite characteristics relate to the procedures that were employed in formulating the opinion and the body of knowledge that forms the foundation upon which those procedures were developed. If the accumulated knowledge of the expert's field was not utilized, the opinion expressed is not an expert opinion. It is a personal opinion, albeit one being expressed by an expert.

Martindale, D.A., "Cross-Examining Mental Health Experts in Child Custody Litigation," Journal of Psychiatry & Law, 2001, 483-511 (emphasis added).

Given that experts are allowed by evidence law to give only "expert" opinions, not personal opinions, this distinction is critically important. Thus, as Martindale & Gould note, the "continued support by some custody evaluators for basing opinions to the court upon clinical judgment and hunches should be particularly distressing" to the discipline of psychology. To the discipline of law, it should be horrifying.

Outliers and Outlaws: The Anti-Science Cadre

At this point, the incongruity between (a) psychology being a science that depends upon research and rejects speculation, as does the law of evidence; and (b) the dearth of research citations in forensic custody reports, is staggering. Why should there be such a gap? The problem is that there is a deep divide within the psychology field between those who are faithful to the discipline's commitment to science and those who are not.

Robyn M. Dawes, recipient of the APA's William James Award, puts it thusly: "There really is a science of psychology that has been developed with much work by many people over many years, but it is increasingly ignored, derogated, and contradicted by the behavior of professionals—who, of course, give lip service to its existence." Dawes, 1994, at p. viii.

Stanovich sees the problem as "the existence of antiscientific attitudes within parts of psychology itself." Stanovich, p. 134. Quoting from an article by Scott O. Lilienfeld, Stanovich speaks of "large pockets of the field" that "remain mired in unscientific practices." Lilienfeld, S.O., "Public Skepticism of Psychology: Why Many People Perceive the Study of Human Behavior as Unscientific," [2012], American Psychologist, 67, 111-129, at p. 122-23.

In Science and Pseudoscience in Clinical Psychology, by Scott O. Lilienfeld, Steven J. Lynn, and Jeffrey M. Lohr (Second Edition, Guilford Press, 2015), the authors write of "how far apart empirical psychology and clinical psychology" have grown, a reality they refer to as the "scientist practitioner gap," describing its magnitude and motivations in the following terms:

Calling it a "gap," however, is like saying there is an Israeli-Arab "gap" in the Middle East. It is a simmering conflict that occasionally erupts into outright warfare, involving deeply held beliefs, political passions, views of human nature and the nature of knowledge, and—like all wars ultimately involve—money, territory, and livelihoods.

Lilienfeld, et al., 2015, p. xv.

It's almost as though there are two psychologies, Psychology-as-Discipline, represented by those who give continued allegiance to the scientific core of psychology; and Psychology-as-Hustle, as a trade or livelihood, or, as they like to call it, "clinical" psychology, as though annexing that adjective carries some magical, alchemical power to transmute speculative musings into valid "expertise." This cohort is populated by those who, though still holding credentials as psychologists, have abandoned the very foundation of the discipline: science. They are akin to the famed brothers, Larry, Daryll, and Daryll, on the 1980s sitcom, Newhart, whose protean business enterprise was aptly named, "Anything for a Buck!"

As Stanovich so colorfully stated it: "In short, the field of psychology as a whole has a kind of Jekyll and Hyde personality. Extremely rigorous science exists right alongside pseudoscientific and antiscientific attitudes." Stanovich, p. 136.

Stanovich also noted that "clinical psychology surrounding child custody evaluations is filled with pseudoscience." Stanovich, p. 135.

On all too infrequent occasions, voices of concern are raised within the legal community. Stephen Hjelt, a former California Administrative Law Judge, charged with presiding over disciplinary proceedings brought against psychologists, viewed this science-practice gap with such concern that he wrote an open letter to the psychology profession. In it, he pulled no punches in condemning the shoddy psychological practices that had come before him. After noting that "more than any other discipline, the mental health professional has come to be used and relied on by the courts in an increasing and seemingly almost infinite variety of settings," he stated:

If their opinions rest on the shaky ground of unsubstantiated theories or research, they can hardly be said to have special knowledge and insight. What this kind of testimony does pose is a great threat to the judicial decision-making process because judges and juries do accord experts deference and deference paid to poor testimony logically creates poor judicial outcomes.

Hjelt, S., 2000, "Professional Psychology: A View from the Bench," Register Report, 26(1), pp. 8-13.

Zeroing in on the essence of the problem, Hjelt offered the following trenchant advice:

Find Your Knowledge in the Scientific Literature. Read a book. Not just any book. Read a book that helps you reconnect with the empirical foundations of your profession. Yes, you are a part of the behavioral and social sciences. And yes, your profession has strong roots as a discipline that has a foundation in the scientific method. However, some of you simply stopped using it. It was far easier and more convenient to expound general theories than to engage in the unglamorous and slowly incremental process of testing hypotheses using observation and data collection. (Hjelt, S., 2000; italics added.)

Conclusion

When forensic mental health experts opine in court, the lives of the litigants and their children can be drastically altered. Whether the "expertise" comes from the Psychology-as-Discipline or the Psychology-as-Hustle contingents of the field is, therefore, acutely important. Just who is on that witness stand, Dr. Jekyll or Mr. Hyde? Both bench and bar must be vigilant in holding mental health experts to the limits of the published, research-supported, knowledge-base of the discipline. Whenever an expert puts forth a conclusion, an inference, or an opinion, the uppermost question must be: Where's the science?

Timothy M. Tippins is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John's University.