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Moving Beyond Daubert and Frye and the Standards for the Admission of Psychological Evaluations and Related Testimony in Child Custody Disputes
| Content Provider | Semantic Scholar |
|---|---|
| Author | Grund, David I. Grund |
| Copyright Year | 2016 |
| Abstract | Introduction A number of U.S. Courts have established legal standards by which child-custody evaluations are rendered (see 750 ILCS 5/604(b); 750 ILCS 5/604.5; and 750 ILCS/605). In large urban areas, psychologists and other mental health professionals typically perform child-custody evaluations. In smaller jurisdictions, attorneys conduct custody evaluations or GALs appointed by the courts. But regardless of whether a child-custody evaluation is performed by a mental health professional or a layperson appointed by a court, a consistent problem is that few states have adopted standards by which custody evaluations are performed. Consequently, there are no uniform methods by which custody evaluations are performed. Indeed, in most states, there are no training, educational, or experience requirements by which evaluators are selected; nor are there rules in place which mandate the do’s and don’ts of such things as ex parte communication, procedure, data gathering, scope, testing, or admission of expert testimony. The American Academy of Child and Adolescent Psychiatry (AACAP), the American Psychological Association (APA), the Association of Family Conciliation Courts (AFCC), and the American Academy of Matrimonial Lawyers (AAML), have developed guidelines and standards for child-custody evaluations. For example, the APA revised its guidelines in February 2009. They consist of 14 individual guidelines that are aspirational in nature and not mandatory upon its members, nor are they intended to be either mandatory or exhaustive. Likewise, in 2006, the Association of Family and Conciliation Courts (AFCC), an interdisciplinary group of attorneys, judges and mental health professionals with a shared interest in family law, published its revised Model Standards of Practice for Child Custody Evaluations. The purpose of the adoption of these standards was to contribute to the ongoing education of evaluators and to promote good practice so that the work done by custody evaluators may be publicly accepted. While similar to the AFCC in purpose, the focus of the AAML’s model is to emphasize a common understanding between the mental health professionals and the legal professionals. During his presidency of the AAML, Gae Ferro formed a committee to prepare uniform child-custody evaluation standards. The intent of these published standards is to aid those professionals to have a common understanding of the necessary training, skill, and experience required to conduct a custody evaluation and that courts utilize these standards in their selection of custody evaluators. The committee developed these standards in consideration of the then existing guidelines (the AFCC Model Standards and APA guidelines). In doing so, the committee utilized and incorporated into its standards for determining expertise the two leading cases for the determination of the admissibility of scientific evidence, Daubert v. Merrell Daw Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), and Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Finally, the AACAP established its “Practice Parameters for Child Custody Evaluations” in 1997. I’m told by Dr. Kraus, who is presently leading the committee, that these practice parameters are being revised. As they now stand, they are merely a guide for clinicians to evaluate the often delicate and complex issues surrounding a child custody dispute. Thus, there are outstanding groups of committed and earnest professional working to bring standards to child-custody evaluations, but their efforts have unfortunately been largely ignored. In most jurisdictions, neither the courts nor their custody evaluators are given any guidelines for performing an evaluation. However, California is one notable exception. The rules of court adopted under its Family Code Paragraph 211 and Paragraph 3117 (Rules 5.220 through 5.235) set out the scope, qualification requirements (training, education, experience), report writing, and ethics (prohibiting ex parte communication by the evaluators with attorneys and the court) for evaluators, as well as establish the process, methodology and qualifications of evaluators and their assessments. In sum, I believe Illinois (and other states) need to do what California did — create clear standards for the qualification of child-custody Law Day 2016 |
| File Format | PDF HTM / HTML |
| Alternate Webpage(s) | http://www.leadinglawyers.com/articles/Grund_2016LawDay.pdf |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
