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United States Psychcologists - Their dirty trick in family courts and how to beat them

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on Mon, 03/19/2012 - 18:59

Disclosure of Psychological Test Data and Materials


made by custody evaluators for not complying with discovery. Why their

arguments are wrong.

By Elizabeth J. Kates, Esq.



I cannot release these materials because am ethically required by the APA "to

make reasonable efforts to maintain the integrity and security of tests

and other assessment techniques consistent with law, contractual

obligations, and in a manner that permits compliance with the APA Ethics

code" (Standard 9.11, Maintaining Test Security).

The APA Ethics Code, Standard

9.11, Maintaining Test Security (Ethical Principles of Psychologists and

Code of Conduct of the American Psychological Association


Wrong. By

its own language, the APA ethics

code, an extra-legal code of ethics of a private trade association, requires

compliance "consistent with law". See the
"Specialty Guidelines for Forensic Psychology" adopted
by the APA Council of Representatives August 3, 2011.


In the law, there is a hierarchy

of authority. Higher authorities control lesser authorities. At the top

is the U.S. Constitution, and the case law interpreting it, recognizing

fundamental rights of fairness, due process, and cross-examination. Below

that are federal statutes that supersede state laws. Below that come state

laws: constitutional and statutory, and their case law. Below that come administrative

regulations. At the very bottom is the law of private contract, such as

the APA regulations -- or the contracts of nonparties who, with advance

knowledge of those contracts, voluntarily, and for profit, have injected

themselves, their data, and the purported conflict of interest they create into other persons'

issues and litigation.

But that was "purported conflict". There actually is no "conflict". Lower

authorities that refer to exceptions "otherwise required by law"

are indicating that they must be interpreted consistent with that higher

legal authority, and that their mandates are subordinate to it. Thus, it

is neither "reasonable" nor "consistent with law" to

posture that a private contract might supersede the requirements of the

constitution. Doing so repeatedly, as some psychologists do in case after

case, speciously pretending to ignorance and confusion, is frivolous, unsupportable,

sanctionable conduct.




APA ethics code is not merely private, because in this case it is incorporated

into state law, either statutory, or in the regulations governing psychologists'

conduct, so it's also the law. I have to be governed by it. I understand your argument, but I want a court order. I don't want

an ethics complaint that I have to defend, even if I ultimately prevail.

For this reason, I cannot respond to a subpoena -- even one that is considered

to have the force of law, but must

[resist discovery and waste other people's

time and money to] get a judicial ruling to resolve my



The APA ethics language is

repeated in multiple states' psychology regulations, e.g. in Florida's

Administrative Code 64B19-18.004.



Wrong. The

Administrative Code regulating psychology, albeit a step up from private

contract, cannot be interpreted by a thinking individual as law that

competes with, conflicts with, or modifies higher legal authority or more

compelling constitutional rights. The lower authority rules still must

be interpreted in a manner that is consistent with those constitutional

rights and superseding law. In the United States of America, we do not

permit Court of Star Chamber proceedings, in which the underlying data

upon which expert opinions are based, gets to be kept secret from the litigants.

Since that's not an option, there's nothing for a court properly to



The claim of having to defend a
board complaint is spurious. The likelihood of a board complaint being
prompted by

response of a forensic witness to a subpoena issued in litigation is
less than miniscule. Additionally, if a frivolous board complaint is

going to be filed, no court order will prevent it, and it still will
have to be defended (easily). Finally, the psychology trade lobbies

have pushed for all kinds of malpractice immunities to hinder litigants

lodging even valid complaints in connection with family law cases, so
the protestation

is ridiculous on multiple grounds.

(In part, these codes and

industry regulation schemes are self-serving trade promotion and protection.

For example, see Tana Dineen: "Psychological Illusions: Professionalism

and the Abuse of Power" Presented at the Symposium: (Ab)Using Power:

The Canadian Experience. Vancouver, B.C. May 8, 1998. A revised version

of this paper is available in (Ab)Using Power: The Canadian Experience.

Boyd, Susan C., Chunn, Dorothy E. and Menzies, Robert (Eds). Halifax, NS:

Fernwood Publ. 2001. Available at


See additional discussion

below on the Florida code.





APA Ethical Code prohibits psychologists from distributing test data and

other assessment records to people untrained to use them, "to protect

a client / patient or others from substantial harm, or misuse, or misinterpretation

of the data or the test" (Standard 9.04a)

Wrong. This

is a two-part assertion, and both parts are wrong.

First, the APA ethics code does not control higher legal authority. If

and to the extent it is incorporated into psychology regulations, it

does not control over higher legal authority. And, with regard to the
presumed prohibition on delivering this material to litigants and their
lawyers, the APA

Code does no such thing.

See Are Psychologists Hiding Evidence?


         Second, laying aside that the APA guidelines

primarily address clinical practice, there is no research evidence anywhere

establishing generally that preventing the release of forensic psychology

test data and other assessment records to "people untrained to use

them" will protect anyone, or ever has protected anyone, or, conversely,

that the release of such records in general has harmed or will harm anyone.

While this all sounds plausible, and it is possible creatively to imagine

situations in which such harm theoretically could result, it is simply

not established as a general rule. (And there is nothing in psych evals

that is worse than what comes into the public court records otherwise in

these cases.) On the other hand, it is axiomatic in the law that deprivation

of due process and the right of cross examination is a fundamental harm.

In addition, misuse and misinterpretation of test data by psychologists themselves,

the lack of validity of many of the tests, the lack of interrater reliability,

and high controversy over the efficacy and use of many of these tests also

is well-known.

See, e.g. Misuse of Psychological

Tests in Forensic Settings: Some Horrible Examples Ralph Underwager and

Hollida Wakefield, available at





The National Academy of Neuropsychology (another professional psychology

association) agrees with the APA position, which gives this position even

more weight. The Specialty Guidelines for Forensic Psychologists and the

Standards for Educational and Psychological Testing (SEPT) also agree.


Wrong. The

psychologist's attempted "appeal to authority" is an error of both logical

reasoning and legal reasoning. The

National Academy of Neuropsychology is not a legal authority. The Specialty

Guidelines for Forensic Psychologists is not law, and its authors are not

legal authorities. A dozen more me-toos from psychology trade organizations

would add not a whit of weight.

All these arguments stand

as evidence that psychologists by reason of their training do not know what constitutes

legal authority, do not understand or appreciate the justice system, and

do not belong in courts of law. See Child Custody Evaluations: Reevaluating the Evaluators




The Specialty Guidelines for Forensic Psychologists and the Standards

for Educational and Psychological Testing (SEPT) developed jointly by the

American Educational Research Association, American Psychological Association

and The National Council on Measurement in Education, "acknowledge

the importance of maintaining test security and ensuring that only those

qualified to interpret raw test scores be afforded the opportunity to do

so, for the purpose of preventing harm".

Wrong. More

appeal to (non)authority. And repeating the speculative assertion of prospective

harm does not make it more correct. There

is no research evidence anywhere establishing that preventing the

release of forensic psychology test data and other assessment records actually

protects or ever has protected anyone other than those with an interest

in making money from selling or using these instruments.

         (To the extent that the trade promotion

interests of a third party are in conflict with the fundamental due process

rights of the actual litigants in a court case, it should be remembered

that the third party voluntarily injected itself into the proceedings,

knowing in advance what its interests were, and thus implicitly waived

those interests in deference to the litigants' higher interests in

due process and fundamental fairness.)



Failure to protect test security from unqualified users harms the

integrity of tests because the tests can become invalidated through their

placement in the public domain, thus depriving the public of effective

test instruments.

Wrong. This

argument confounds copyright interests ("public domain"), which

are specific persons' and groups' profit-motivated interests, with generalized

public harm from, presumably, the public's need to be able to take psychological


         No research

has established that any harm will come to the public if psychological testing

were not available. While it is plausible as an hypothesis, no evidence

establishes this. Indeed, the public managed very well for hundreds of

years without psychological testing and there is no evidence (unlike in the fields

of medicine or dentistry) that the public is better off, more well adjusted,

healthier, or happier, because of the availability of psychological tests.

         The allusion

to the copyright issue indicates more truthfully whose and what interests

are of concern to the trade organizations and the test publishers.



the argument raises the question of how it could be that these tests --

if presumably so reliable that they can and should be used in a forensic

setting -- could be so lacking in robustness and so easily corrupted that

they would no longer be useful if a member of the public, determined to

respond honestly in order to obtain therapy, happened to see the test materials

at some prior time because the materials were in a court file, instead

of a college library, where any undergraduate psychology major might peruse


         The argument

begs the question of what all the people who DO have knowledge of these

tests do if these tests are presumably so needed by the public. Don't psychologists

ever require therapy? How about other mental health professionals, school

personnel, test publisher employees, researchers, judges and lawyers who

deal with forensic experts, and every person who at some point in the past

already took one of the tests? The argument is nonsense. The real interest

at stake, the real motive for the forensic psychologist's recalcitrance,

has nothing to do with concern for public welfare (and very likely not even so much concern for

complying with test publishers' admonitions as interest in protecting the individual psychologist from scrutiny).


note the difference from the standpoint of a test taker between a test

administered in a forensic setting and one administered for the purpose

of receiving therapy.)




For example, the Law School Admission Test (LSAT) would be invalid

if the answers to the LSAT were released and placed in the public domain.



psychological tests cannot be made public without invalidating the tests,

just as examinations are invalid if the questions are published in advance.


Wrong. The

LSAT and other similar standardized tests are not analogous.


they have sufficient validity that test questions can be changed from administration

to administration without devastating the test. In other words, they are

real tests, testing real things, with actual right and wrong answers. Second,

the test protocols, scoring methods, past test questions, and practice

questions routinely are distributed by the test publishers to future test

takers, with no great hue and cry about public harm occurring because some

people practice for them and others do not. And, even if the exact questions

on the test about to be taken are not given out, the substance of what

will be asked in the questions is -- and is expected to be studied.




It is not in the interests of non-psychologists to become familiar

with test protocols and test items because they may eventually need to

be tested, for example, if early dementia is suspected or if they develop

a brain tumor, or have other possible needs that may arise for future

testing such as a disciplinary proceeding before the State Bar. When

people have previously seen the tests, they themselves cannot be tested

in a valid way.

Wrong. What

do psychologists, other mental health professionals, school personnel,

test publisher employees, researchers, judges and lawyers who deal with

forensic experts, and every other person who at some point in the past

took one of these tests do "if dementia is suspected or if they develop

a brain tumor"?

The argument is nonsense -- and would be even if persons with brain tumors

or dementia were clever enough to recall and set about cheating on psych

tests (and wanted to), and even if there also were not actual medical tests

for these things.

(The hypothesis of lawyer regulators possibly

requiring a lawyer in the future to take a psychological test is not
only fantasy, but a transparent attempt to align himself on a superior

with the judge versus the attorneys in the case,

hoping in this way to persuade

him to quash the subpoena by planting the suggestion that the lawyers
are seeking discovery for unethical reasons, not for the

purpose of adequately representing their clients. If a psychologist
makes this argument, it's a bell ringer that he's

a slick willy, further supporting the need for full, unfettered




SEPT standard 11.15 addressing the potential for misinterpretation

of test data states that "Test users should be alert to potential

misinterpretation of test scores and to possible unintended consequences

of test use; users should take steps to minimize or avoid foreseeable misinterpretation

and unintended negative consequences". [So

we have to withhold them from litigants and their lawyers who would like

to twist around my words and cross-x me on my conclusions.]

Wrong. Misinterpretation

of test scores and unintended consequences of test usage is exactly why

full and unfettered discovery of ALL underlying data and testing materials

is mandatory whenever these things are used in a forensic setting. Because

virtually always, that misinterpretation is by psychologists, not by litigants.

[UPDATE 11/01/11: This lawyer now has
also has seen a case in which a corrupt custody evaluator changed litigants' raw test scores before sending
them off for computerized "analysis".]


         No research

has established any harm befalling the general public from lay persons

misinterpreting these tests (or the handy computer printouts of suggested

diagnoses). On the other hand, psychological tests routinely have been manipulated

and misused by forensic opiners in court cases -- and elsewhere -- to make

specious arguments that have harmed many persons. The integrity of the

court system takes so much priority over the asserted need for integrity

of these dubious psychological instruments that this argument should be a nonstarter

for any judge worth his salt.



The rationale for test security protection as a public policy issue

to prevent harm was upheld in Detroit Edison v. NLRB, 440, U. S. 301 (1979),

where-in the United States Supreme Court ruled that test security pre-empted

the release of test results in the form of data and records to someone

other than a qualified professional.

Wrong. The

case isn't close to on-point.

It involved an employer with a testing program who rejected certain applicants,

and who was sued by the union. The employer refused to disclose the test

data of employees who had been promised confidentiality. The material implicated

employee privacy concerns and was trade secret of the actual defendant

in the case. It was not prepared by a forensic expert in anticipation of

being used as part of the foundation of his paid opinion in a court case.

         Compare: "On Oct. 24, 1995, in the case of Sharon L. and
Warren E. Campbell v. Barry A. Mashek

(Iowa District Court Consolidated Law Case No. 65070), the Fifth
Judicial District of Iowa found the section of the Iowa

code restricting release of test data to be unconstitutional under both
federal and state law. In that case, several experts,

including the renowned testing expert Dr. Paul Meehl, testified by
affidavit that, 'Allowing a psychologist to offer opinions at trial,

which are not subject to full and fair examination, based on the
underlying test data, is repugnant to the basic principles of science

and would fundamentally hinder any neutral body, such as a jury, in
trying to arrive at valid conclusions about the condition of an

individual who has put their psychological condition at issue by
bringing a lawsuit.'" -- Paul R. Lees-Haley, Ph.D., and John C. Courtney, Psy.D. in

Are Psychologists Hiding Evidence?




SEPT standard 11.8 states that test users have the responsibility

to respect test copyrights. When purchasing psychological tests, psychologists

agree to uphold copyright laws.

Wrong. It

is not a violation of copyright to turn over materials in response to a

subpoena for discovery, or to make photocopies of the materials for use

in connection with litigation. Period.

This falls squarely within the fair use exceptions.

        If and to the

extent the test publisher markets its products for its own profit for intended

use in court, it also has knowingly, and in advance, thereby agreed to

any publication that foreseeably ensues in connection with those court

proceedings, because those proceedings ordinarily should be expected to

comport with due process.

        There is an

easy solution if the test publisher or the forensic psychologist doesn't like

this. Don't use these instruments for forensic work. It is validly

argued that by doing so, the psychologist deliberately, and for his own financial

gain and self-aggrandizement, cavalierly set in motion a contract violation

of his own doing. He cannot, after doing so, and after setting up a [purported]

conflict of interest -- a dilemma of his own making -- now place the burden

of rectifying that malfeasance on other people's time, money, and fundamental

rights. A subpoena quash or protective order is an equitable remedy --

and the psychologist and the test publisher have dirty hands and cannot come into

court midstream, changing their tune and begging for protection at others'

expense and detriment.


the psychologists' concerns with articles copyright.






Not to expose test materials to unauthorized non-qualified users,

is part of my contractual obligation with the publishers, Psychological

Assessment Resources (PAR) and Pearson Assessments, of all tests used in

the present case.

Wrong. One: Private

contracts of unrelated third parties who are not in privity with court

litigants do not change these other people's constitutional rights.
         Two: Litigants and lawyers are not "unqualified users" in connection with a court case.

(See Lees-Haley and Courtney, above).
         And three: If

and to the extent the test publisher markets its products for its own profit

for intended use in court, then it has knowingly, and in advance, thereby

agreed to any publication that foreseeably ensues in connection with those

court proceedings, because they may be expected to comport with due process.

(If arguendo it has not done so, that means that the psychologist

deliberately, knowingly, in advance, and for his own financial gain,

breached his own contract. He thus has dirty hands and cannot obtain
equitable relief from the consequences of his own wrongdoing at innocent
others' expense and detriment.)



I have a [conveniently self-serving] letter here from the test publisher...

the import of the publisher's position is that these materials are trade


Wrong. Material

is readily sold, that is available to competitors, that is in the
publicly-accessible files of the Library of Congress, that is discussed

in articles and published in books that also are available to the
public, and that is not kept by the test publisher from tens of

of psychologists and others is not a trade secret. While

test publishers individually indeed may have various trade secrets, they

do not include material in the possession of competitors and industry-wide

third party users. Trade secret

law is utterly inapplicable, because its purpose is to protect competition

-- to protect one business from its competitors. Once material is shared within the industry, trade secret

law no longer applies. Interestingly, psychologists here have the same issues that magicians

do, in that they attempt to keep material secret from the public but the

material is well-known in and among the industry competitors.

        (As an aside, it also is not an argument to

prevent discovery to claim that publications are available elsewhere. Even

when they are, the specific materials within the particular possession

of the psychologist remain discoverable to ascertain whether they have been altered,

written on, contain notes, are complete, are up-to-date copies, and so




Ken Pope's website says that Pearson says that HIPAA says that disclosure
"may be denied if the protected health information was compiled in reasonable anticipation of,
or for use in a civil,
criminal, or administrative action or proceeding"!

[45 C.F.R. 164.524(a)(1)(ii)]



The test publisher is self-serving up a line of legal B.S.

A forensic evaluator in this context is not functioning as a "covered entity" or
"health care provider" under HIPAA, and the
psychological "health" information being newly generated by the forensic
for the specific purpose of creating data to form the basis of his opinion in court is
not "protected health information". (Ken Pope's website has somewhat** more appropriate
opinions in the O'Connell-Koocher article at

         These HIPAA provisions were intended to address
such things as the gathering and holding of (usually multiple) clients' health records by personal injury
lawyers on
their computer systems, or of medical malpractice lawyers and insurers who have collected
patient records and summaries in connection with
their preparing for litigation involving the hospital. Moreover, the forensic should
not be getting access to
-- and thus should not be in possession of --
litigants' individual private medical or therapy records absent a prior court order or the
litigant's own submission of these materials for consideration (which by definition, constitutes
consent for their use in the litigation).

[** The multifarious
consents, contracts, and CYA "understandings" -- informational, methodological, and
financial -- routinely demanded
by many psychologists to be signed by litigants
who are court-ordered (this includes "agreed orders") to submit
evaluations (or therapy) are not necessary or appropriate, and
constitute legal overreaching.
Individuals under the duress of a court order to "cooperate" cannot
consent (or "assent" -- same thing) to anything
as to which they cannot withhold consent without suffering negative
repercussions. Court-mandated psychologists also have no business
signed receipts of "notices" about procedures, or
confidentiality (or giving any other kinds of legal advice). All of
these documents,
no matter how innocuous you may think them, in fact alter litigants'
legal obligations
and/or positions (why the psychologist is wanting a signature), but if
since it's involuntary on the part of the litigant,
it belongs in the court order or not at all. Have procedural info? Give a handout, no signing.

      (Note: Obtaining informed consent prior to
doing a one-sided litigant- or attorney-instigated (i.e. voluntary, not court-ordered) assessment
in preparation for trial (privileged work product unless and until it -- again voluntarily -- later may or may not
become disclosable in court in connection with the same litigant's
proffered expert testimony) is a very different
creature. A psychologist who does not understand the difference has,
at a minimum, demonstrated
himself to be incompetent to assess or treat issues involving domestic violence, duress or coercive control.)]





The materials under consideration can and will be released only to

a qualified professional designated by the attorney.


Neither the lawyer nor the self-represented litigant are obligated to breach attorney

work product and disclose their consulting expert to the psychologist in order

to obtain discovery. Nor

are they obligated to expend yet more money and hire yet another psychologist,

if they have not already done so, in order to obtain discovery. Moreover,

even if they happen to agree with this demand, because it costs them nothing,

because a consulting psychologist already is on the case and at the ready, the

contortions of turning the material over to a member of the lawyer's litigation

team, a contractor or employee working under and reporting to the lawyer,

are inane and pointless. All of these persons, including the lawyer, are

working for and paid by the client; they will be sitting 'round the table,

discussing, copying, sharing the material, and consulting with each other

in preparation for trial.

        (Lees-Haley and Courtney, supra, also argue that there is no actual

definition of a "qualified professional" and that for purposes of litigation, the litigant and his lawyer are it.)



Should the Court decline the current motion to quash, it is requested

that the Court issue a protective order requiring Dr. Yaddayadda's file

first to be subject to in-camera review.

Wrong. This

is a violation of the parties' due process rights. Discovery

of these materials was a foreseeable event when the psychologist voluntarily,

and for a fee, injected them into other people's court proceeding. The

situation is not akin to necessary proceedings that might ensue when a

patient's records are subpoena'd from a therapist. Here, there is no valid

reason for the materials to be reviewed in advance in camera. Such

a review implies a possible need to cull materials that might not be discoverable.


        In the latter case, the potential harm to the

discovering litigant is balanced against the rights of an unwitting, involuntary

person who actually may have trade secrets or privacy issues, but has had

them unexpectedly subpoena'd. It is an effort of last resort that risks

biasing the fact finder (the judge, in a custody case) with out-of-court

material that has not been introduced into the proceedings by the parties.

This risk makes it a procedure that is neither fitting nor appropriate

under forensic circumstances, over and above it being a pointless drain

on the court's and everyone else's time and resources. (That a court-appointed

evaluator would request this indicates either deliberate recalcitrance

or ignorance of a degree that calls into question the rest of his judgment.)



Should the Court decline the current motion to quash, it is requested

that the Court issue a protective order that the file be distributed only

to the attorneys representing each party in the current litigation, and

that they be ordered not to disseminate it to anyone else.

Wrong. Lawyers

are their clients' agents, not their handlers. The client is the principal,

i.e. the boss. A

lawyer not only is under an ethical obligation to communicate with his

client, but as a practical matter, cannot adequately prepare his client's

case without doing so. Moreover, the lawyer not only needs to disseminate

the material to his client, but both need time to contemplate the material,

review it multiple times as necessary, refer to it in deposition, and possibly

consult with other lawyers or mental health professionals about it. It

is the client's, not the lawyer's case.

        In addition, the client may wish to consult

with another lawyer for a second opinion, who may not be disclosed to his

attorney of record, or to discharge his lawyer of record and proceed with

another lawyer, or on his own. This is nobody else's business.

        A lawyer may not enter into agreements that

hamper his client in this way, or prevent his client from obtaining alternate

counsel in this way, or which place the lawyer into a contractual conflict

of interest with his own client, in favor of the psychologist or some test publishing

company to whom the psychologist alleges he is beholden. Nor can a judge validly

restrict the attorney-client relationship in this way, or countermand the

attorney-client representation or rules of ethics that come from higher

legal authorities.

        Finally, no one else is entitled to know --

or to receive assurances or explanation -- of the communications that will

transpire between the lawyer and client, or the procedure they will follow

in connection with preparing the case. These are matters that are absolutely

privileged, and may not be encroached upon by a court (or any third party)

as a favor to the psychologist in lieu of compelling him to fork over the materials

or else be held in contempt or barred from testifying.

        The psychologist in essence is claiming that he

has deliberately set upon a course of action moving toward his own foreseeable

breach of asserted obligations to third parties, and now -- with his dirty

hands -- comes to the court for equitable relief on other people's dime

and time. And to their detriment. (So much for the great professed

concern for public welfare.)

        It is true that some courts grant these requests.

Not infrequently they are doing so as a gratuitous concession to the psychologist,

posturing as if there were some actual issue to resolve, because this permits

them to not have to impose mandatory discovery sanctions against the ignorant

losing party (the psychologist). This is wrong and indicates bias in favor of the forensic, who should know better, and

who should be held to higher standards and required to pay the costs of the proceeding.


        Frequently too, because psychologists' reports are turned

in at the eleventh hour, things are in a mad rush to trial, and the

lawyers do not have sufficient time or manpower (or funds) to dork

having hearings and appeals on these issues (let alone antagonize the
court-appointee psychologist who already is wielding unwarranted power
with the judge), so in the triage of trial

preparation, they choose their battles and relent. None of it is

that the psychologist, now emboldened by his lack of understanding of
what has

been transpiring (rather than being grateful -- as he should be -- to

have to be footing the bill for his recalcitrance), was correct, not

a little.


Ethical Problems: Why Therapeutic Jurisprudence Must Be Eliminated From Our Family Courts





Should the Court decline the current motion to quash, it is requested

that the Court issue a protective order that the attorneys may not keep

copies of the file, and must return it after Dr. Yaddayadda's reported

evaluation has been examined and cross-examined.

Wrong. It's

evidence in the case (and the litigant paid for the copying charges).


material provides the foundation for evidence that may be introduced into

the record in one way or another. It thus may be needed at a rehearing,

at subsequent hearings, or on appeal. It is evidence upon which decisions

may be made that thereafter will be the law of the case. Some courts, after

the fact at some ostensibly safe point in time, may agree to seal a court

record, but this is utterly inappropriate in any case in which a child's

custody remains open for continued redetermination. It also unwarrantedly

hinders litigants from filing justifiable board complaints where necessary

for malfeasance.



Noted authorities on ethical principles of psychologists have stated

that "Psychologists may ask the Court for [i.e. expect the court

to give them] a protective order to prevent the inappropriate disclosure

of confidential information or suggest that the information be submitted

to another psychologist for qualified review" [Here's

the proud psychologist's sample



Fisher, The National Psychologist, Test data standard most notable change

in new APA ethics code (January/February 2003) , p 12, citing Ethical Practice

in Forensic Psychology: A Systematic Model for Decision Making, by Bush,

Connell, & Denny, APA Books, pp 106 (2006)


Wrong. On

all counts. These are not authorities at law -- they are psychologists with various

self-interested motives. This is not "confidential information".

And the third-party receiving psychologist doesn't apply in the forensic context.

Interestingly, one of the rationales psychologists used back when lobbying

for increased forensic evaluations in the family courts was that these

would protect litigants' confidential therapy records. The public stupidly

went along with this reasoning, as if psychologists have objective ways of knowing

the invisible, as if they are similar to physicians who might do a blood

test and diagnose a condition.


The APA ethics

code also requires psychologists to adhere to certain guidelines and procedures

in administering and interpreting tests. Without permitting the

lawyer access to all the information required to enable him to investigate

whether this was done and to cross-examine the psychologist, there is no way to

establish compliance with these other ethical guidelines. Discovery is

necessary to verify the psychologist's compliance with the ethical requirement

that "Psychologists only use tests in appropriate ways" (such

as when the use is empirically validated by research). Discovery is necessary

to ascertain whether "Assessment results have been interpreted in

light of the limitations inherent in such procedures." And, among

other things, discovery is necessary to ferret out bias, corruption, and

incompetence -- which are rampant among psychologists in family court.

See 1987 Grisso, "The

Economic and Scientific Future of Forensic Psychological Assessment, American



"There is almost no empirical information

concerning how to use parents' Wechsler or MMPI results to make inferences

about their abilities to perform specific parenting functions."

See 1993 Brodzinsky, "On

The Use and Misuse of Psychological Testing in Child Custody Evaluations,"

Professional Psychology: Research and Practice:


"Many lawyers and judges have an

unrealistic view of what psychological testing can accomplish."

"There is often an assumption,

sometimes expressed overtly, that testing provides a scientific foundation

for the forensic evaluation. In other words, it allows the evaluator

to go beyond the subjective nature of 'clinical impression' or 'clinical

judgment' that is inherent in interviews and observations."

"There is a view that psychological

tests allow the evaluator to be truly objective and therefore unbiased.

This assumption is, of course, naive."

See 1997 Melton, Petrilla,

Poythress, and Slobogin, Psychological Evaluations for the Courts, 2d ed.:


"It is our contention that such tests

are often used inappropriately. Tests of intellectual capacity, achievement,

personality style, and psychopathology are linked only indirectly, at best,

to the key issues concerning custody and visitation."

"Apparent practices notwithstanding,

we recommend the use of traditional psychological tests only when specific

problems or issues that these tests were designed to measure appear salient

in the case."




(similar to a number of other states): Florida Administrative Code, 64B19-18.004

Use of Test Instruments... There are three exceptions to the prohibition

against the release of test data. What are they, what do they mean, why

are they there, and when do they apply:


psychologist who uses test instruments may not release test data, such

as test protocols, test questions, assessment-related notes, or written

answer sheets, except


to a licensed psychologist or school psychologist...


the extent not superseded by federal medical privacy law, the first exception above is

what you do with records requested by a patient or his representative,

when you are the therapist and there is no court proceeding.


after complying with the procedures set forth in Rule 64B19-19.005, F.A.C.,

and obtaining an order from a court or other tribunal of competent jurisdiction



second exception is what you do when your or your patient's confidential

therapy records are subpoena'd in litigation that otherwise has nothing

to do with you and in which you were not planning to testify.


when the release of the material is otherwise required by law.


#3 is not redundant, and doesn't mean the same thing as #2, "get a

court order." The third exception is for what you do when you are

a forensic witness in a court case, and receive a subpoena.



the transparent, fundamentally fair operation of our justice system is

not merely the law; it's a precept upon which the United States of America

was founded.



This judge... that court... this lawyer... that

judge... this court... said, commented, did, didn't, agreed, understood,

cooperated, granted, gave, told, exalted, praised... me-me, me me, meme...

blah-blah, blah yadda, blah-blah...

Wrong. Judges

sometimes are. That's why we have appellate courts. Lawyers too. That's

why I've written this.

And psychs? Count on it. It's time to get

the psychologists out of the family courts


-- liz

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