Is the Psychotherapist in your Case Forensically Informed?
December 30, 2015
You are trying a case. The opposing counsel has Dr. Freud, psychotherapist, on the stand. In the examination of Dr. Freud, your colleague asks, “How often have you seen the teenage child of this divorcing couple for individual psychotherapy?” He responds, “One time a week for a year.” The attorney follows up, “How often have you met with the father and with the mother.” Dr. Freud testifies that he has seen the father for five or ten minutes at each session, that he has with the teenager. He reports that he has not met with the patient’s mother. Dr. Freud is asked why and he replies, “I contacted her after I had seen the patient for a couple of months. She was angry that I was seeing the child and refused to come in to meet with me.” There is one final question directed to Dr. Freud, “What is your opinion about why this child refuses contact with his mother?” Dr. Freud smiles and smugly replies: “In my 30 years of practice, I have seen many situations just like this. This child has severed his relationship with his mother due to the child abuse he receives from her. This mother hit the child and emotionally abused the child. In fact, much of the abuse took place while the mother was drunk.”
The opposing counsel thanks Dr. Freud for his professional opinion, based on an impressive 30-year career as a psychotherapist and part-time university professor. Your colleague is confident that the judge will be impressed by the testimony of this esteemed psychotherapist who has verified to the court, what his client has been saying throughout the case. The witness is passed to you for cross-examination. Just as you get ready to start, the judge calls for a lunch break, giving you time to review your notes about some of the potential dangers of having a psychotherapist involved in a contested child custody case.
You take another look at the article, “Is the Child’s Therapist Part of the Problem?” from Family Law Quarterly, written by Greenberg, et.al. Right there on page one, it clearly states, “Clinicians who undertake court-related treatment without adequate expertise run the risk of exacerbating, rather than improving, the life situations of these children.” You believe that Dr. Freud may have exacerbated the situation and actually made the estrangement of the child from the mother worse, not better. Further in the article, you read, “While the treating expert’s role is distinct from that of the forensic expert, (e.g. psychological examiner or child custody evaluator), effective treatment with children of separating and divorcing families can occur only when the therapist is knowledgeable about the myriad of forensic mental health and legal issues that often are imposed upon the therapist, the children, their parents, and the treatment itself during contested custodial disputes.” Further into the article you read a paragraph from the authors:
“Biased therapists may escalate conflict by providing treatment information to the court at the request of one parent without obtaining a balanced understanding of both sides of an issue. In the extreme, a biased therapist may present unbalanced information to the court by minimizing or ignoring bias in the information available. Some therapists even express opinions about parent-child relationships that they have not observed (p. 50).”
Greenberg, et al (2003) went as far as to state: “We believe that offering opinions to the court based upon an inadequate foundation of information, especially when the testimony crosses the line from treatment opinions into forensic judgments (e.g. opinions about custodial placement and conclusive opinions about allegations of abuse), is a violation of the professional standards governing most therapists (p. 50).
You flip to an article written by Grossman (2002) and see there are a number of problems that can occur when treating therapists offer information to the courts. Grossman felt that therapists, in an attempt to assist their patients, might make errors by offering opinions and recommendations to the court about family members they have never seen. Additionally, when only one parent brings the child to appointments, the therapist may become biased in favor of the parent who regularly attends and with whom they speak on a regular basis.
In a Greenberg and Gould (2001) article, “The Treating Expert: A Hybrid Role with Firm Boundaries” you discover that most non-forensic psychotherapists function under an assumption that psychotherapy is a process initiated by the client and base treatment on the client’s own perceptions of their life and experiences. The therapist develops a therapeutic relationship with the client and provides a confidential zone for the client to explore their thoughts and feelings about themselves and those around them. Greenberg and Gould stated, “Implicit in this process is the assumption that the client will be motivated to provide as much accurate information to the therapist as possible, to enhance the therapist’s ability to assist the client “(p. 471). This assumption of accuracy in the patient’s reporting is often an incorrect assumption in patients who are going through litigation.
Greenberg and Gould (2001) went on to discuss how treating therapists might become biased by:
“…uncritically accepting the statements of the parent or child whom the therapist is treating, without recognizing that the client’s statements may be heavily influenced by outside factors (e.g. the parent’s position in the custody conflict, the child’s exposure to the custodial parent’s concerns, or the status of the legal case). In such a case, the therapist unintentionally biases treatment by supporting the client’s expressed views and by advocating for that view as the most appropriate outcome for the case. In the process, the therapist may unintentionally stray beyond the boundaries of his or her role and into ethical and legal trouble.”( p. 470).
Greenberg, et al (2003), and Greenberg and Gould (2001) described how therapists working in contested custody cases need to “think forensically.” Grossman & Okun (2007) wrote that treating psychotherapists had limited usefulness to the court because their conclusions are not based on an independent investigation. They went on to describe the forensic approach as being, “…broader, more objective and neutral inquiry, attempting to verify the information supplied by the client with other sources.” Greenberg, et. al. (2003) described the challenges for the “forensically-informed therapist”:
“…to be aware that the information being brought into the treatment session could be intentionally or unintentionally distorted. Statements made by a parent or child may include inaccurate observations, selective attention to events that support one parent’s view, perceptions distorted by the parent’s emotional investment in the outcome, and/or deliberate distortion of information. A child’s perceptions and statements may be altered by external influences such as suggestive questioning, exposure to the parental conflict, or exposure to a parent’s emotional needs. “(p. 45).
Greenberg, et al (2003) also wrote that the forensically-informed therapist should have knowledge
“… of relevant research regarding children’s adjustment to divorce, domestic violence, alienation dynamics, child abuse, children’s suggestibility, the impact of parental conflict on children, child development and the coping skills children need to adjust successfully as they mature.”
Forensically-informed therapists need to keep in mind strategies to minimize bias and make sure that their conclusions and recommendations are based on a full assessment of the situation in which a child finds him/herself. According to Greenberg, et al (2003), the therapist must
“…understand the family situation in which the child lives, including the impact of the family’s involvement with the legal system; and (2) the therapist’s ability to identify, formulate and actively explore rival, different and plausible interpretations of the child’s behavior, statements, problems, and needs.” (p. 48)
The last document you review while waiting for court to re-start is a copy of the “Guidelines for Court-Involved Therapy” developed by the Association of Family and Conciliation Courts (AFCC). In that document you read their standards for the level of court involvement, professional responsibilities, competence, multiple relationships, fee arrangements, informed consent, privacy, confidentiality and privilege, methods and procedures, documentation, and professional communication. You decide to see how well the good Doctor Freud adhered to these aspirational standards of practice.
You check your watch and realize that the hearing is about to start again. You quickly translate what you have just reviewed into a series of questions you will pose to Dr. Freud in your cross-examination. You decide to see if Dr. Freud has an understanding of the current literature related to children, divorce, high-conflict coparenting, and children who refuse visitation. You also decide to query Dr. Freud on his consideration (or lack thereof) of alternative theories on why this teenager and mother are estranged. You want to know if Dr. Freud is familiar with some of the research on bias and contamination of interviews with children. Lastly, you want to cover the practice standards and see if Dr. Freud practices from a forensically-informed perspective.
The hearing begins and you step to the podium. You ask Dr. Freud, “Are you familiar with the Guidelines for Court-Involved Therapy which was developed by the Association of Family and Conciliation Courts (AFCC)?” Dr. Freud responds that he is not familiar with those guidelines and has never heard of the AFCC. You proceed to ask the good doctor how he verified the allegations that the child made about his mother. Dr. Freud ponders the questions and responds, “In my 30 years of clinical practice I have developed my interviewing skills to be able to assess the credibility of what a patient tells me. The father confirmed that the child was telling me the truth.” He assures the court that if the child were lying, he would have been able to detect it. You ask Dr. Freud if he is aware of the literature that therapists are no better than untrained professionals are at detecting the credibility of other people. He, arrogantly, responds that the researchers never spoke with him.
You switch topics and start to question Dr. Freud about his understanding of the literature on divorce and the best interests of the child. You ask him for a list of which peer reviewed journals he regularly reads, which books on child custody he references, and what professional courses and continuing education seminars he has attended. Dr. Freud looks annoyed at your questions and stumbles to try to name a journal. When queried further, he admits he does not subscribe to any divorce related journals nor was he able to remember any books he has read about child custody, divorce, and the best interest of the child. When asked about continuing education, he testifies that he completes the required classes for licensure and takes classes in ethics, psychopharmacology, and general seminars on various mental disorders.
Next, you ask Dr. Freud to describe the various alternative theories he has about why the teenager is refusing to see his mother. Dr. Freud, in his typical arrogant manner testifies that he is sure he is correct and did not need to waste his valuable time, “playing the games of graduate students pondering alternative explanations to something that was obvious.”
You move into your final area of inquiry. Does Dr. Freud engage in appropriate professional practices and does he follow the Guidelines for Court-Involved Therapy? After numerous questions, Dr. Freud admits that he never received informed consent from the mother before he saw the child. He did not get the mother’s side of the story. He did not consider an alternative hypothesis for the estrangement. He admits he was giving parent-child relationship opinions without ever having met with the mother. He admits that he was not up to date with the literature in the area and that he had not attended specific educational courses to be competent in this area. Although he would never admit he was biased, it became obvious that he was. You thanked him for his testimony and conclude your cross-examination.
As you sit down, you feel a sense of satisfaction that you have exposed this so-called expert. You have transformed his testimony. The witness was exposed, seen as a psychotherapist who had inadvertently sided with a child and one parent against the other parent without investigation or balance. You are happy that you have successfully impeached this witness.
As professionals working with family attorneys and psychotherapists, we often see similar opinions (from therapists like Dr. Freud) in court testimony, depositions, affidavits, or in collateral contact interviews. Family attorneys need to become better at making sure that their clients and the children of their clients receive evaluations and treatment by therapists who have the appropriate training, experience, and ongoing continuing education. In the hypothetical case above, the therapist was colluding with the teenager and the father (without even realizing it, yet it came across in court). If the information about the parties or their children is not derived in a forensically sound manner, the court has no way to know if the findings and recommendations are valid and appropriate. Experts are required to base their opinions on systematic, valid, and reliable methods of acquiring information. The experts then develop recommendations based on the data and scientific research – not from their hunch or the number of years they have been in practice.
We welcome your comments, questions, and would appreciate your feedback.
Guidelines for Court-Involved Therapy (2010). Association of Family and Conciliation Courts.
Grossman, Neil S., & Okun, Barbara F. (2007). Psychologists Providing Information for Judges and Attorneys. The Family Psychologist, Vol 23, No. 2
Greenberg, Lyn R., Gould, Jonathan W., Gould-Saltman, Dianna J., Stahl, Philip M. Is the Child’s Therapist Part of the Problem? (2003) Family Law Quarterly, Vol. 37, No. 2
Greenberg, Lyn R., & Gould, Jonathan W. The Treating Expert: A Hybrid Role with Firm Boundaries (2001). Professional Psychology, Research and Practice, APA, Vol. 32, No. 5