December 18, 1998

Child and adolescent psychiatrists who perform forensic evaluations have been accused of being whores of the court, among other things.

"Unfortunately, we are responsible for much of the criticism because of our inappropriate behavior, mistakes, ethical lapses, ignorance, and naivete about bringing psychiatric principles from the therapy room into the court," said Stephen Herman, M.D., associate clinical professor of psychiatry at Mount Sinai School of Medicine in New York.

Herman, who spoke at the American Academy of Child and Adolescent Psychiatry annual meeting in October in Anaheim, Calif., specializes in family law related to psychiatry and other aspects of medicine.

"Just because we are child psychiatrists does not mean we are automatically trained to perform child custody evaluations in an adversarial system," added Herman.

He described some of the misguided reasons therapists become involved in child custody cases. "They may confuse therapy of the child or parent with advocacy and a desire to protect the child."

The therapist may identify with the patient's plight because he or she was involved with a court case before and subconsciously has issues about judges, divorce, and custody, said Herman.

The therapist may notice that the child has increased symptoms after a visitation. "He or she may conclude that the visitation with one parent caused the symptoms and becomes very concerned that the visitation is not going well for the child," said Herman.

He advised against developing an alliance with only one parent that can result in a biased affidavit and is not in the best interests of the child.

Moreover, therapists should not agree to requests to perform child custody evaluations involving their patients unless "there is no alternative and the judge orders you to comply. Then, you need to explain to all parties the risks--that the therapy may be contaminated, alliances may be destroyed, and the child's trust may be diluted," said Herman.

"You also need to define your role clearly and stick to it. Explain to judges if necessary, lawyers, parents, and the child why it is important to keep the roles of therapist and forensic evaluator separate."

Forensic evaluators also need to guard against wearing their therapist hat in child custody cases.

"You may get a call from a distraught mother saying 'my child won't go to school because she just returned from a one-week vacation with her dad.' Your response should be that you understand that the mother is very distressed, but you are not in a role to give therapeutic advice."

Herman also urged psychiatrists to monitor their biases and potential for countertransference in child custody evaluations.

He reviewed a report that, for example, was clearly biased toward the mother. A court-appointed expert had described the mother's apartment as "bright and airy with lovely pictures of her artwork throughout the living room."

In contrast, the evaluator described the father's apartment as "cramped, untidy, with too much old furniture, and no paintings."

Forensic evaluators should avoid using emotionally charged words such as compulsive, lenient, and aggressive in their child custody reports unless making a clinical diagnosis, he added. "These words become fodder for the other parent's attorney and will result in a very rigorous, unfriendly, difficult, and anxiety-provoking cross-examination."

He also mentioned the court spotlight phenomenon in child custody cases. "This poor family is being evaluated in a custody case and the spotlight of the court is on the family. Evaluators become confused and think we are supposed to recommend the world's best parent rather than the good-enough parent for this child. That is what best interest means when we apply it to families."

Herman strongly urged psychiatrists to turn down requests for unilateral evaluations involving seeing only one parent with a child. "They lack credibility because you are getting only one side of the story. In addition, the lawyer may use you for this case because he or she is interested in winning and knows you can be bought. So it isn't worth it; it's a disservice to you, the profession, and to desperate families."

He pointed out as well that unilateral evaluations are contrary to the Academy's practice parameters published a year ago in October, which Herman helped write.

Nonetheless, clinicians can legitimately consult with the parent about to enter a custody situation or divorce to explain in general terms what may happen during the proceedings or the potential emotional impact on the child, said Herman.

Reviewing child custody reports by court-appointed experts is another legitimate role for psychiatrists. "Tell the lawyers you are willing to peer review the report and testify in court only on the contents of the report."

"The most important principle in forensic work is to remember that you are the clinician, not the advocate, judge, lawyer, detective, or tryer of fact. You must remind yourself repeatedly of what you are good at and what you are not."