Mental health custody evaluators need to be removed from the family court system
“Dr. Brown did not review…records related to the family. Dr. Brown didn’t see any of the children in either of the parties’ homes. Dr. Brown didn’t talk to any school personnel. Dr. Brown’s report didn’t mention one party’s criminal conviction. Dr. Brown didn’t initially provide all of his file to [another doctor hired by one of the parties], despite court directives to do so. Had the second party not hired another doctor and pursued review of Dr. Brown’s underlying files, the Court would have been led to believe that…his report was fairly comprehensive. That is not our conclusion.”
-- Kansas District Court Judge, quoted in a disciplinary document issued by the Kansas Behavioral Sciences Regulatory Board in its case against psychologist J. Scott Brown, October 11, 2005
Lying. Ignoring court orders. Rendering opinions not based on observation. Psychologists and other mental health counselors employed or assigned by our family courts have the power to affect the lives of parents and children for better or worse. As demonstrated by both the case above and in the following cases—which were uncovered by or reported to Citizens Commission on Human Rights International (CCHR) in the past few years—these servants of the court frequently show themselves to be reckless and incompetent, making extremely questionable decisions, basing their decisions on second-hand observation or basing it on no observation at all.
This is what our family court judges are relying on to inform their rulings in divorce and custody cases?
On November 5, 2012, the state of Pennsylvania reprimanded psychologist ANDREA E. SYWULAK and ordered her to pay a civil penalty of $3,000 and costs of investigation in the amount of $529.76 because she failed to cautiously and conservatively interpret data from interviews or tests and for refraining from drawing conclusions not adequately supported by the data; failed to utilize the best interests of the child standard, and committed unprofessional conduct by departing from, or failing to conform to the standards of acceptable and prevailing psychological practice and by failing to assess the individual and family factors that affect the best psychological interests of the child.
On July 20, 2012, psychologist CHARLOTTE HIGGINS-LEE surrendered her license to practice to the Oregon Board of Psychologist Examiners According to the Board’s document, in late 2010, Higgins-Lee received a referral to conducted a psychological evaluation of a father and his nine-year-old daughter and to testify in a January 2011 hearing concerning custody and parenting time. Though the custody matter concerned the father, daughter and father’s ex-spouse (the daughter’s mother), Higgins-Lee did not interview the mother (though she interviewed the father, daughter and others). Nonetheless, she concluded that the father should have sole custody and that “more information should be obtained on the mother’s alcohol use/abuse and violence,” among other statements critical of the mother, whom she had never met or interviewed. The Board proposed a reprimand, civil fine of $7,500 and requirement to practice under supervision for a minimum of six months. However, Higgins-Lee later agreed to a new stipulated agreement to surrender her license to the Board. [i]
April 22, 2011: The Arizona Board of Behavioral Health Examiners placed licensed clinical social worker LINDA GERDES on 24 months of clinical supervision and 24 months of supervised work due to practicing outside the scope of her experience and training, relative to her treatment of a juvenile involved in a divorce and custody dispute. The child’s mother brought the daughter to Gerdes to help the daughter cope with the pending divorce. At the time, the daughter’s primary residence was with the father, who was against his daughter receiving psychotherapy. Despite this, Gerdes accepted the patient without the father’s knowledge or consent and did not contact the father to inform him (he found out from the mother). The Board’s document states that Gerdes’ discussions with the father about the daughter’s alleged ADD and the father living arrangement with the mother’s sister likely further reinforced the father’s belief that Gerdes was not objective and sided with the mother. In March 2008, Gerdes agreed to testify as an expert witness for the mother during a custody hearing even though she had no experience or training regarding working with high-conflict divorce/custody issues and was not a custody evaluator. In a March 23, 2008 letter to the mother’s attorney, Gerdes made several statements that evidenced a clear loss of objectivity. On April 15, 2008, Gerdes wrote a letter for the mother’s use in her effort to obtain physical custody of the daughter that contained statements not supported by the clinical record and included the mother’s version of events without identifying the mother as the author of those events. Gerdes failed to limit her role as the daughter’s therapist and instead involved herself in multiple roles (mother’s therapist, expert witness and custody evaluator) which created potential conflicts of interest. Further, her clinical records did not include required elements; she failed to document communications she had regarding the mother and daughter’s therapy and failed to obtain a signed release of information authorization before releasing confidential client information. She also billed inappropriately for sessions. In addition to the supervision of her practice, the Board required Gerdes to obtain continuing education in graduate level behavioral health ethics.[ii]
August 2010: The Texas State Board of Examiners in Psychology assessed MELODY M. POTTER, Ph.D., a $3,000 administrative penalty. Potter’s forensic testimony at trial in a child custody case contained insufficiently substantiated opinions. She was additionally required to completed and additional 12 hours of continuing education in forensic psychological services, 3 hours in evidence-based decision making and 6 hours in ethics.[iii]
August 13, 2010: JUDITH S. VERGAMINI surrendered her professional counselor license to the Oregon Board of Licensed Counselors and Therapists for a number of violations of Oregon statutes and administrative laws, relative to her rendering of a parenting plan in a child custody matter, in order to provide the father with access to the couple’s child. The Board’s order states that Vergamini, in preparing her parenting time report for the court, failed to include the mother’s criminal past but included the father’s DUI conviction; included the mother’s arrest and conviction record but did not include a discussion of the nature of the those arrests and convictions, which were of a nature relevant to the custody evaluation; conducted a home study of the father’s residence to ensure it provided a safe and appropriate environment for the child but never conducted the same assessment for the mother’s residence and never addressed the mother’s housing situation and how it might influence the custody decision.[iv]
May 7, 2010: The Arizona Board of Behavioral Health Examiners revoked the license of professional counselor LINDA BENNARDO. According to the Board’s report, Bennardo treated a mother and her daughters for six months in 2008 and saw the mother’s son twice during that time. She recommended limiting the father’s access to the son based solely on information provided by the mother and daughters. In another case, Bennardo concluded that a three-year-old girl was highly traumatized by her visitation with her father—without having gathered any information on the matter from the father, parenting coordinator, best interest attorney or other entities. The Board’s report also states that Bennardo failed to obtain informed consent for the aforementioned son and that informed consent for the aforementioned mother and daughters was incomplete, among other things.[v]
July 31, 2009: The Washington State Department of Health (DOH) fined licensed mental health counselor-social worker SARA ELLINGSON $1,250 for unprofessional conduct in rendering an opinion in a child custody matter. According to the DOH’s order, in March 2002, Parent A (mother) retained Ellingson to develop a Transition Plan to restore court-ordered visitation between Parent B (father) and his son. In April 2002, Ellingson met with the mother on two occasions. In May 2002, Ellingson submitted a Transition Plan to the mother and father for the court-ordered visitation between the father and son. In June 2002, Ellingson submitted a Revised Transition Plan based on information by the mother and father and from declarations of support for the father from friends of both parents. Ellingson failed to contact the mother for her response to the declarations from the parents’ friends prior to issuing the Revised Visitation Plan. In October 2002, Ellingson sent a letter to the father’s attorney recommending that the mother be court-ordered to undergo a psychological evaluation due to the grave concern of alienating behavior on the part of the mother (acting in a way to alienate the child from the father). In July 2004, the child’s guardian ad litem submitted a report to the court that stated, in Ellinson’s opinion, that the mother was engaging the practice of “Munchausen’s Syndrome by Proxy.” Ellingson had not observed the mother in more than two years at that point. In February 2005, the mother sent a letter to Ellingson requesting her children’s treatment records. Ellingson declined to comply with the request. Ellingson was disciplined once before by the DOH, in 2006, for providing opinions on parenting and custody in a case in which both parents in the dispute were her clients and in which she failed to include information provided by an in-law which was relevant to one parent’s fitness to parent.
May 14, 2009: Colorado clinical social worker JOANNE BAUM was placed on probation for one year, having been found by the state to have acted in a manner that does not meet generally accepted professional standards of practice by writing a letter that contained judgments concerning a person she had never met and published recommendations regarding child custody issues without having full knowledge of the facts necessary to make such recommendations.[vi]
October 16, 2008: the California Board of Psychology revoked DIANA M. ELLIOTT’s license for failure to comply with the terms of an earlier probation order against her. In March 2004, the Board charged Elliott with gross negligence, dishonesty and repeated negligent acts related to her testimony in a divorce matter in which she reported the results of psychological tests according to her memory, which was later discovered to be faulty (did not correspond to the actual answer sheets she had on file) and that in response to the trial court’s order for her to send the original answer sheets to the father’s expert, she sent copies which were altered to make the father look more disturbed and mother look healthier than the actual answer sheets did. Elliott has changed the test score answers. Lastly, Elliott failed to inform the court that the father was administered the test via an interpreter and failed to inform the court that her testimony was based on inaccurate information; her inaccurate testimony adversely affected the ability of the court to make an assessment of the child custody issues. As a result, Elliott was placed on probation for three years with terms and conditions.[vii]
August 6, 2008: The Colorado State Board of Psychologist Examiners publicly admonished E. ROBERT LACROSSE for making custody recommendations without doing complete evaluations or interviewing all parties.[viii]
June 21, 2008: The California Board of Psychology placed JANIS FOOTE on five years probation for negligent acts and general unprofessional conduct. Foote provided a custody recommendation to the court after having interviewed her patient's three children without the knowledge or consent of the other parent (who shared joint custody of the children) and made evaluations against the other parent without ever having met him or observed him directly. The Board revoked Foote's license in 2012 for failure to comply with the terms of her probation.[ix]
In March 2008, Ohio psychologist MERYL A. ORLANDO was suspended for 30 days and placed on 24 months of restricted practice, during which the court prohibited her from providing testimony in any cases involving custody or parental rights in any Ohio court or other adjudicative body. Orlando was found to have engaged in negligent conduct by rendering a legal opinion regarding a father’s continued involvement with his children, despite having not observed the father’s interaction with the children and for recommending that the father be named legal custodian of the children, based in part on her opinion that the mother had sabotaged the childrens’ relationships with the father, among other things.[x]
January 31, 2008: The Oregon Board of Psychologist Examiners found that GARY L. GREGOR committed unprofessional conduct in a custody evaluation that included failing to take reasonable steps to avoid harm in regard to the child and mother; failed to recognize his own possible bias and failed to resolve the matter with due regard for the best interests of the mother and father (both clients) and the child. Gregor surrendered his license while under investigation (not a final decision) and the Board has proposed restricting him from performing child custody evaluations or parenting plans, among other conditions.[xi]
October 25, 2007: The Virginia Board of Psychology put JOSEPH CONLEY, JR. on indefinite probation of no less than 18 months. Conley was found to have violated several state regulations while conducting evaluations in a child-custody case when he made an "inflammatory appraisal" of the mother (who he had never met) as well as a written evaluation that demonstrated "a bias against the mother, without substantiation by corroborating evidence."[xii]
July 20, 2007: The Ohio Counselor, Social Worker & Marriage & Family Therapist Board suspended social worker JOANN KUREK for three months. Board documents state that Kurek “failed to maintain the appropriate standards of care…by rendering a biased opinion about a minor client’s father without ever performing as assessment of him” but based on the opinions of the minor’s court-appointed guardian.[xiii]
November 27, 2006: The Pennsylvania Board of Psychology reprimanded PHILIP J. KINNEY and assessed him a $2,500 civil penalty. The Board found that Kinney’s findings in forensic child custody evaluations were not based on sufficient techniques or information. For instance, he made statements about a mother and her ability to parent without having conducted any examination of her; failed to maintain an objective and impartial stance in his evaluation of the child; failed to obtain informed consent from all adult participants prior to performing a custody evaluation on the child and over-interpreted or inappropriately interpreted clinical assessment data.[xiv]
July 20, 2006: The Idaho Board of Psychologist Examiners disciplined CHARLES W. GAMBLE for several counts of failure to provide a proper child custody evaluation in a divorce dispute. The Board put his license on 12 months probation and ordered him to cease providing such evaluations.[xv]
June 29, 2006: New Hampshire mental health counselor BRENDA DESMARIS was disciplined by the state Board of Mental Health Practice for sending the court a report on a child’s condition without first getting a release from the child’s parents and advocated that the child’s visitation with the father be suspended. She was placed on practice monitoring for one year, as well as continuing education in divorce and custody, risk management and role confusion.[xvi]
June 20, 2006: South Carolina psychologist ANDREW B. MCGARITY voluntarily surrendered his license to the state psychology board, following an earlier disciplinary action which he failed to comply with. The earlier action was the result of 2003 board findings that McGarity had performed a custody evaluation that “failed to meet the generally accepted standard of care normally expected of clinical psychologists….” In a custody evaluation incident to a divorce proceeding, McGarity failed to evaluate the children or the individual parents’ interactions with them before recommending which parent should be awarded custody. Additionally, in December 2005, the State of California revoked his license to practice psychology.[xvii]
February 10, 2006: The Arizona Medical Board found psychiatrist HOWARD L. MITCHELL guilty of, among other things, ignoring data when evaluating a patient; making a custody recommendation without an appropriate evaluation and making false statements in a patient evaluation. Specifically, Mitchell conducted a psychiatric evaluation and made custody recommendations that neglected to consider domestic violence findings and made his recommendations after interviewing only the father—not the mother or the child. He was put on one year of probation with conditions.[xviii]
January 2, 2006: The Psychology Board of Ohio suspended JOSEPH JOHN BENDO for one year (60 days active suspension and the remainder stayed). The board found that Bendo had testified in a divorce/custody dispute involving a married couple he had counseled two years earlier. In the court setting (for which he “agreed that his conduct…reflected a lack of a fundamental…understanding of the legal and professional standards of care that govern the participation of psychological experts in legal proceedings”), Bendo released confidential information on one of the patients to the attorneys of the opposing patient, despite never having secured express written permission from the former patient to reveal such data, in an effort to “influence the legal system” in favor of the opposing party. In addition to active suspension, Bendo was permanently “prohibited from rendering in writing or by testimony any hypotheses, impressions, diagnostic suppositions, or other professional opinions to any adjudicative body, including administrative agencies and any court or agent of any court in the State of Ohio, relative to parenting, parenting time, or the allocation of parental rights and responsibilities.”[xix]
November 2005: Psychologist MICHAEL CARLIN was suspended for two years by the British Psychological Society. Carlin, who did not have the two years' supervised experience needed to act as a forensic psychologist, was found guilty of professional misconduct for having submitted forensic reports in two instances, including a child rape case.[xx]
February 2003: Ohio psychologist ROGER H. FISHER surrendered his license while under investigation by the State Board of Psychology for acts of negligence and incompetence in the conduct of psychological services to children, couples and families involved in domestic relations matters. In June 2001, Fisher was placed on permanent restriction from rendering services as an expert or evaluator in domestic relations courts, regarding custody, parenting or visitation, based on a complaint filed by a mother alleging that Fisher authored a report strongly biased against her based solely on a single session evaluation of her 5-year, 9-month-old son, at the father’s behest. The report, which questioned the mother’s fitness to parent and commented on her “personality changes,” “mood swings,” and allegedly bizarre behavior, was based only on the son and father’s information. Between March and June 2002, the Board received four separate additional complaints of negligence and incompetence from parents to whom Fisher had rendered forensic psychological services in domestic matters. The surrender was deemed a permanent revocation.[xxi]
Parental Alienation Syndrome (PAS)
PAS is an alleged (and thoroughly discredited) “mental disorder” applied to one parent in a divorce-custody matter by the opposing party’s psychological expert in the following manner: “The child(ren) are fearful of or angry at Parent B (my client). It appears that Parent A has been telling the child(ren) negative things about my client in an effort to make the child(ren) fear my client, refuse visitation with him, etc. These efforts are proof that Parent A has PAS and so should not have custody of the child(ren).”
Use of this “diagnosis” sometimes obscures the fact that there may be documented reasons or logical foundations for the child(ren)’s fears or the parent’s concern, such as actual sexual abuse, domestic violence or the opposing parent’s criminal record.
PAS has never been validated by any official body and, on the contrary, has been invalidated by numerous authorities, including the American Psychological Association, which stated:
“Custody and visitation disputes appear to occur more frequently when there is a history of domestic violence. Family courts often do not consider the history of violence between the parents in making custody and visitation decisions. In this context, the non-violent parent may be at a disadvantage and behavior that would seem reasonable as a protection from abuse may be misinterpreted as a sign of instability. Terms such as ‘parental alienation’ may be used to blame the women for the children’s reasonable fear or anger toward their violent father.”[xxii]
Dr. Paul Fink of Temple University's School of Medicine, called the theory dangerous: "It was made up by one guy who spread it around. No investigation was done, there was no research, and it's hurt a lot of women and children."[xxiii]
March 3, 2008: The Psychologists Board of Queensland (Australia) disciplined WILLIAM WRIGLEY, declaring that he acted unprofessionally in giving evidence about "parental alienation syndrome" to the court. An investigation of Wrigley found that his evidence in a case three years earlier, which led to a mother losing custody of her two children, constituted "conduct that demonstrates incompetence or a lack of adequate knowledge, skill, judgment or care." The judge in the case stated, "It has to be said that in terms of objectivity, professionalism, fairness and balance, his reports are in stark contrast to those provided by (other professionals)." The board advised Wrigley of its unanimous decision that he had "acted in a way that constituted unsatisfactory conduct" for "referring to an unrecognized syndrome in his reports. It was inappropriate for [Wrigley] to either diagnose the children or state there was a likelihood the children could develop parental alienation syndrome, as it is not a recognized syndrome. To diagnose a patient as suffering from or demonstrating a potential to develop an unrecognized syndrome is contrary to the code of ethics."[xxiv]
In December 2003, the Ohio State Board of Psychology filed 11 allegations against DOUGLAS C. DARNALL, in addition to complaints filed against him in 2002 by five former clients. Many of the complaints accused Darnall of using the diagnosis of parental alienation syndrome to classify parents’ behavior and using a non-published test—the “parental alienation scale”—to form conclusions in psychological assessment, which the state says contradicts the standards for psychological testing. One of the complaints alleged that Darnall conducted an evaluation of a client and her ex-husband to provide the court a child visitation recommendation without ever meeting the children, according to the state’s document. The state charged Darnall with requiring clients to complete his nonvalidated “parental alienation scale” as part of their evaluation; warning parents that their evaluation would not be completed if they did not fill out the scale and that the judge would be notified and making at least one custody recommendation without adequately gathering information from clients, among others. The board issued a disciplinary action against Darnall in April 2005, which was appealed. The board ultimately voided its disciplinary decision and dismissed the charges against him in an August 2005 settlement that required him obtain 15 hours of continuing education in forensic psychological practice and tutorial direction from a board-approved supervisor in identifying risk factors/avoiding loss of objectivity in litigation-related evaluations of children. [xxv]
[i] Notice of Proposed Disciplinary Sanctions and Supervision in the Matter of the License to Practice as Psychologist of Charlotte Higgins-Lee, Agency No. OBPE #2011-020, Oregon Board of Psychologist Examiners.
[ii] Arizona Board of Behavioral Health Examiners Adverse Action Tracking Form, 2011.
[iii] Disciplinary Actions: August 2010 Board Meeting, Texas State Board of Examiners in Psychology.
[iv] Settlement Agreement and Stipulated Final Order in the Matter of Judith S. Vergamini, LPC, LMFT, Case No. 2009-014, DOJ File No. 108001-GB0658-09, Before the Oregon Board of Licensed Professional Counselor and Therapists.
[v] Arizona Board of Behavioral Health Examiners Adverse Action Tracking Form 2010, dated 21 September 2010.
[vi] Entry on Joanne Baum, Clinical Social Worker #991264 and Certified Addition Counselor III #4284, as found in Colorado Mental Health Boards Disciplinary Action “Monthly Board Action Summary April-May 2009.”
[vii] Default Decision and Order, In the Matter of The Accusation/Petition to Revoke Probation Against Diana M. Elliott, Ph.D., Psychologist license No. PSY 12612, Case No. 1F-2007-188290, Board of Psychology, Department of Consumer Affairs, State of California, October 16, 2008.
[viii] Letter of Admonition, State of Colorado Board of Psychologist Examiners to E. Robert LaCrosse, Ph.D., referencing Board Case #2008-003698, August 6, 2008.
[ix] Stipulated Settlement and Disciplinary Order, In the Matter of the First Amended Accusation Against Janis Elaine Foote, Ph.D., License No. PSY 5810, Case No., 1F-2005-164508, February 25, 2008.
[x] Consent Agreement between Meryl A. Orlando, Ph.D. and the State Board of Psychology of Ohio, March 11, 2008.
[xi] Notice of Proposed Reprimand and Terms of Probation, In the Matter of the License to Practice as a Psychologist of Gary L. Gregor, Ph.D., OBPE #2006-030, Board of Psychologist Examiners of the State or Oregon, January 31, 2008.
[xii] Order, In Re: Joseph Conley, Ph.D., L.C.P., Virginia Board of Psychology, October 25, 2007.
[xiii] Consent Agreement between Joann B. Kurek and State of Ohio Counselor, Social Worker, Marriage and Family Therapist Board, July 20, 2007.
[xiv] Entry on Philip J. Kinney, license no. PS006139L, as contained in the online report, State Health Licensing Boards Disciplinary Action, January 2007, Pennsylvania Department of State website.
[xv] Stipulation and Consent Order, In the Matter of the License of Charles W. Gamble, Ph.D., License No. PSY-196, Case No. PSY-2005-6, Board of Psychologist Examiners, State of Idaho, June 15, 2006.
[xvi] “Litchfield health counselor disciplined,” Nashua Telegraph, June 29, 2006.
[xvii] Voluntary Surrender, In the Matter of Andrew B. McGarity, License No. 695, OGC #06-0001, South Carolina Department of Labor, Licensing and Regulation Before the Board of Examiners of Psychology, June 20, 2006.
[xviii] Findings of Fact, Conclusions of Law and Order, In the Matter of Howard L. Mitchell, M.D., License No. 30004, Board Case No. MD-04-0186-A and MD-04-0925A, Before the Arizona Medical Board, February 10, 2006.
[xix] Consent Agreement between Joseph J. Bendo, Ph.D. and the State Board of Psychology of Ohio, December 5, 2005.
[xx] “Psychologist suspended over reports,” (London) Daily Mail, November 18, 2005.
[xxi] Consent Agreement between Roger H. Fisher, Ph.D. and the Ohio State Board of Psychology, December 16, 2002.
[xxii] Violence and the Family: Report of the American Psychological Association Presidential Task Force on Violence and the Family, American Psychological Association, 1996, p. 100.
[xxiii] “Psychobabble or a legitimate, legal basis for child custody,” Chicago Daily Herald, November 14, 2004.
[xxiv] “Ruling debunks custody diagnosis,” The Australian, April 7, 2008.
[xxv] “Court worker faces new issues,” The Tribune Chronicle, December 3, 2003 and Settlement Agreement between Douglas C. Darnall, Ph.D. and The State Board of Psychology of Ohio, August 4, 2005.