Law Office of Gerald Solomon, P.A.

Suppose that you have undergone a psychological examination to assist the court in reaching a determination on child custody. As a part of the testing process the psychologist administered a battery of tests, interviewed you and the child’s other parent, interviewed the child, and spoke with collateral sources. The psychologist, who is supposed to be independent, submits a report that favors the other parent. What are your options?

            The first option that you must exercise is to read the report. Do not rely on your attorney to convey the information to you. Read and understand the report. Most reports will contain a warning something similar to:

It is inappropriate to release this report directly to the patient/ parent/guardian/other parties. If this information is released to interested individuals before they are afforded an opportunity to discuss its meaning with a trained mental health professional it is likely the content of the report may be misunderstood leading to emotional distress on the part of the uninformed reader.

Read the report. Here is my warning:

It is malpractice not to release the information contained in the report directly to the client unless the client is a minor. If the information is not released then the client does not have an opportunity to understand, accept or dispute the facts and/or conclusions drawn therefrom then the client is effectively denied due process of law.

Read the report. More importantly, understand the report, the reasoning, objectivity (or lack thereof) and factual basis that underlies the professional’s conclusions. A fair, objective conclusion, based upon solid data, is one of the most important tools that the court and counsel have in deciding custody. However, bias hurts children. Psychologists have bias. Psychologists are human. Examine the examiner.

Let us assume that the psychologist drew a factual conclusion with which you disagree. You say that you were the primary parent for the child’s first two years of his life. The other parent says that they were the primary parent. The psychologist feels that the other parent was the primary parent. Each parent submitted letters from friends attesting to the fact that they were the primary parent. The psychologist believed the other parent. Without more, there is nothing that you can do to challenge the finding.

However, assume that additional records show that you took the child to the doctor, you stayed home from work when the child was sick, you arranged for day care, and you attended play dates with the child. The child talks about you teaching him the alphabet, you teaching him to ride the bike, etc. If the psychologist has considered these factors properly, but still conclude that the bonding indicates that the other parent was the primary parent, then you have, at best, an argument. But if the psychologist ignored the other data, then you have a case to challenge the factual finding.

Here is the point: If the opinion is well reasoned and backed up by data, even conflicting data, then the psychologist is entitled to his or her opinion. Conversely, if the opinion is not well reasoned then you should consider challenging the report.

This brings us to raw data. Raw data is the information that is obtained through testing. Raw data includes test answers, many times test questions, along with human and computerized test interpretations. It is the information that you rarely get to see, and it is the critical data that could decide your child’s future. Psychologists argue that attorneys misuse raw data. I am afraid that there are times when it is the psychologist who misuses the raw data.

            Take a look at how the raw data is protected by Maryland Law:

Except as otherwise provided . . . if the disclosure of a portion of a medical record relating to a psychological test would compromise the objectivity or fairness of the test or the testing process, a mental health care provider may not disclose that portion of the medical record to any person, including a subject of the test.

            This makes sense before the tests are given. It makes no sense after the tests are given. If the test has already been administered how could the objectivity be compromised? You cannot compromise the integrity of the test once it has been given. Therefore, this provision should not apply. Since there are no appellate cases in Maryland discussing this area of the law you will probably get different results depending upon the strength of the claim and judge hearing the issue.

            Most psychologist use a computer scoring service to score tests like the MMPI-II. The MMPI-II (Minnesota Multiphasic Personality Inventory) is a 567 true/false question examination the results of which can aid the psychologist in rendering his/her opinion. In addition, the MMPI-II can also reveal personality characteristics that support or negate a factual allegation. For example, one spouse may claim that the other party was overdramatic on many issues and had a history of unstable relationships. The MMPI-II can confirm or rebut this contention. Assume that the MMPI-II shows personality characteristics of instability and histrionics. The clinician should give this finding special attention and explain how this played into the final opinion. Regardless of how the clinician resolves this issue it should be addressed. Failure to address and resolve these issues points to bias or ineptitude.

            The problem is that the law does not allow for easy access to the raw data, clinicians refuse to give up the raw data, and most attorneys do not even ask for raw data. Have your attorney attempt to obtain the raw data.

            Bias and ineptitude come in may shapes, colors and forms. The addition of a child custody evaluator was once thought to be an oasis of fair play in child custody cases. However, the bias that plagued judges now appears to permeate the spectrum of services provided to custody litigants. We all are the product of our upbringing, environment and personal feelings. It is very difficult to leave this at the doorstep when you enter a decision making roll affecting children. A judge who committed adultery may tend to be more forgiving (and understanding) of a spouse who committed adultery. He or she may not fully understand the effect on the child or other spouse. Likewise, a judge who was hurt by adultery may be very harsh and not consider the parenting qualities of a parent guilty of adultery.

            While we cannot crawl into the mind of a judge to look at his or her notes, private thoughts and reasoning, we can, through raw data and the case file, crawl into the mind of a professional rendering an opinion. Raw data should be the foundation for a professional opinion. When purchasing a home you should check for structural soundness. Your children deserve the same.

Jerry Solomon*

Jerry Solomon is a Maryland divorce and child custody attorney who works with and represents clients with family law problems, including divorce, child custody and visitation. Jerry has practiced family law for over twenty-five years.