Maybe the sky isn't falling after all: Comment on Kleinman and Kaplan (2016)

ABSTRACT

Kleinman & Kaplan (2016) decry how family courts are being misled by biased or undertrained evaluators, who commonly discount or dismiss allegations of domestic violence and child abuse, while lending undue credence to unscientific notions concerning parental alienation. They also argue that family courts often relax evidentiary rules, including qualification and cross-examination of expert witnesses, and that judges commonly abdicate their responsibilities to experts, leading to poor and unjust decisions. Further, they claim that custody evaluators fail to take seriously the psychological consequences to children of abuse or domestic violence. The authors also minimize the frequency of false claims of domestic violence or child abuse, especially by children, who, they claim, “tell it like it is.” This comment on their article questions the theoretical and empirical bases for such claims. There is ample reason to believe that: a) child custody evaluators consider domestic violence and abuse very important and relevant; b) the “relaxation” of the rules of evidence in family court cases is far from the norm; c) judges are charged with an active gatekeeping role with respect to expert testimony, often with the assistance of cross-examination and rebuttal experts; d) false or unfounded allegations of abuse or domestic violence are common in family court disputes; and e) there is no scientific consensus or substantive evidence showing the parental alienation is an unscientific myth. It is argued that the proper role of custody evaluators is to follow where the evidence leads, while remaining mindful of the limits of their expertise.

KEYWORDS:

• Child abuse
• child custody evaluation
• domestic violence
• parental alienation

Notes

It is doubtful, however, that it is often used this way. According to two former New Jersey Supreme Court justices, in practice (and under appellate review), this rule is expected to be “sparingly resorted to” (Pressler and Verniero, 2011, Comment 2 on Rule 1:1–2).

As Kleinman and Kaplan (2016) themselves acknowledge, “It is unscientific and wrong to use a measure as though it was normed for a specific population and purpose when it was not. Moreover, it is an error to interpret the results of that measure out of the context in which the responses were collected”.