How often and in what way are C&A Psychs drawn into custody battles/hearings

[MissAmanda]

How often does it happen? What is the psychiatrist required to do?

Is this seen as something psychiatrists want to avoid being caught up in? If so, what are good ways to avoid getting drawn into legal custody battles, that sometimes turn violent?

With the recent custody driven violence in California, this issue came to mind.

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[whopper]

I can't answer this as a C&A psychiatrist but as a forensic psychiatrist. A clinical doctor's responsibility is to clinically treat a patient, not do a forensic evaluation. Custody hearings, where doctors are asked their opinions on custody, are legal and not clinical in nature. Thus, a clinical doctor has no responsibility to report their opinions on this matter unless they are released to do so by the patient/guardian.

If the doctor is released to give information, they need to state to the court that the information obtained was not done in a manner to determine custody. This will lower the responsibilities of that doctor. The doctor then is merely just reporting what he/she saw, and not declaring who should have custody. If a doctor is asked about custody, a doctor could answer something to the effect of "I've never done an actual custody evaluation so giving an opinion in this regard would not be professional nor ethical."

There are things that several people think doctors, especially psychiatrists can do where in reality we have no ability whatsoever over a layman, such as being able to tell if someone is lying. Courts ask doctors all the time things like this and some idiot doctors are narcissistic enough to believe they can answer. Many of us see this type of thing in clinical practice on issues such as writing notes for patients to be relieved from work. Did you as a doctor actually do an evaluation that meets the scientific standards required by law in saying this person really cannot work? Usually not.

Whenever patients ask me for these things I write a note saying "My patient believes he cannot work because of his symptoms"...x, y, and z, " If this is the case, this would suggest me to believe he should not be working, but this opinon is not based on a forensic evaluation but merely what the patient is telling me. I did not perform a malingering evaluation, and to do so within my current clinical relationship would be inappropriate. If you want a higher standard of proof, I recommend a forensic psychiatrist or psychologist without a doctor/patient relationship to evaluate this matter."

Now, if the C&A psychiatrist is actually doing a real forensic evaluation this is different. If this is the case, the doctor should not have a treatment relationship with the person being evaluated. I have seen exceptions to this. Any information obtained should be done with the declaration that the evaluation is not confidential and will be reported to the Court, though in many courts, the information is sealed and does not go beyond that court and any witnesses there.

I can also tell you, not from personal experience, but from that of colleagues, that this area is something most people do not want to touch with a ten foot pole. Evaluations, while needing to meet reasonable medical certainty (more than 50% likely) often times are still in a grey area where even the evaluator is nowhere near certain. Given that being wrong could put the child in the hands of a possible sexual molester is very off-putting to several. Also, when evaluators are giving their opinioins, usually which will lead to at least one party being very upset, it can and unfortunately what I've been told, often leads to the unhappy party making life tough for the evaluator such as an accusation that the evaluator may have sexually touched the child being evaluated.

The few people I know who do this literally record every single interaction with the child and the parents because this type of area gets real real dirty. They've had to spend a lot of money buying equipment to make sure every single phone call and interaction is recorded in order to protect themselves from false accusations or threats of violence. We're talking a strong possibility of having to testify against a person in an area where they have a strong emotional passion of probably the strongest level--their own child. Those people I've seen often do this rarely because the work can be emotionally difficult to endure.

While it can make a lot of money, there are far easier ways to do it, unless you happen to be one of those people that find this work interesting and inspiring.

 

[eaglepsych]

as a child psychiatrist i end up doing a lot of therapy akin to couples counseling (co-parenting therapy) whether i like it or not. many cases involving parents that hate each other - and this hatred almost always exascerbates or causes the pathology in the child.

you learn to write notes knowing that they will for sure end up being looked at by lawyers, judges, etc. i usually insist on seeing both parents together, and make it clear when i think that these battles are getting in the way of the pt receiving proper tx, etc.

if asked to write a letter for the courts in favor of one parent over the other i simply state that thats not something that i do, but that a parent can get a copy of my notes at any time. have not been subpoena'd yet, but only out of training for about 2.5 yrs.

 

[whopper]

if asked to write a letter for the courts in favor of one parent over the other i simply state that thats not something that i do,

Wise answer. If you were treating a child for depression, and the only thing you were doing was treating for depression.

Answering who should have custody when all you did was treat for depression is like asking a surgeon who assisted in a surgery by only doing the sutures in a court of law who should have custody. It's not something where the doctor did an evaluation. To give a medical opinion based on that type of evaluation would likely not meet the law's scientific standards (Frye or Daubert depending on which court) and would be out of line.

 

[MissAmanda]

Great responses, thanks everyone. I just wanted to understand if being drawn into custody battles was the norm, which is appears it is not, and can usually be avoided. I wouldn't want a chunk of time I'd prefer spending doing patient care stuck with lawyers.

 

[whopper]

Just wanted to add that sometimes the Court will still ask you because they don't know that they're not supposed to ask you.

I've seen this happen several times. In Ohio, the situation with forensic psychiatry is relatively more advanced than many other areas because we have three of the best forensic psychiatrists in the country (name-brand) here and they've worked extensively with the state and local courts to advance the interface between law and medicine. Several areas have no forensic psychiatrist whatsoever, but in this area I can name several, many of whom did work to advance the court's knowledge of how things are supposed to work.

In other areas, many of the forensic psychiatrists didn't give a damn about the court's lack of knowledge and merely wanted to profiteer by making a private enterprise with no desire to advance the state of the system. So many forensic psychiatrists operate on a notion that it's their job to win the case for their defendant for the $$, not give a real and honest examination. A forensic psychiatrist, is supposed to act as a guide and explain how psychiatry works to the court. Sometimes, unethical psychiatrists will direct courts in a manner that is misleading so they can profiteer. (The hired gun phenomenon.)

Yet even here, there are still so many problems where courts think we doctors can do things we can't. I have seen so many patients diagnosed with antisocial PD and some courts think that's possible grounds for a not guilty by reason of insanity plea because it's a disorder in the DSM.

Bottom line when this happens, just tell the Court you didn't do an evaluation for custody. There will be doctors who do give opinions on custody when they didn't do an evaluation. No, they don't know something you don't. They're just being idiots. I've been in Courts where other doctors, for years, did the wrong thing, so the Court thinks it's alright and the norm and then asked me why I refused to give them an opinion. In cases like this, I just frankly tell the Court, "If Dr. X wants to give an opinion that doesn't meet the ethics or standards of the profession, I can't stop him. I can, however, not do that myself. If you would like to me to show you these guidelines, I will be happy to do so." I then show the Court the guidelines I'm talking about (usually already printed up by the APA or AAPL) if asked.

Of course this is an awkward situation to be in...if I actually happen to like that doctor. If that happens, I try to be more diplomatic or warn the doctor ahead of time to stop the practice because I'm going to have to reveal it. Other times, especially with a-hole quack doctors (I'm being a bit frank), I just let it all out bluntly, especially when I've tried to have a talk with them and they blow me off.

The last time this happened to me was last week. A colleague of mine that I actually like tried to keep a person involuntarily committed that didn't speak English and this doctor never once bothered to use a translator. I told her that if she didn't use one by the time I had to testify on the case, she have egg on her face big-time in front of the court. Thankfully for both of us, she followed my advice, got a translator, and was able to argue that her impression that the patient was truly psychotic was not merely based on a language barrier.

Had she not done this, I would've had to have said on the stand that she was not following the standard of care. Now given that I actually like this doctor, I would've been in a very awkward situation, especially since I know the defense attorney and he would've went after that other doctor big time and I would've had to have assisted in tearing her apart while I was on the stand. On the flip-side, I actually happen to like that when I know the doctor's terrible, but in those cases, the doctor is usually not in court, or doesn't give a damn anyway.