Psych Crime Reporter

March 15, 2011

Your Honor: Please base custody decisions on facts and evidence, not on the opinions of mental health custody evaluators

The recent dismissal of a court-appointed custody evaluator provides one more reason why our family courts need to get back to deciding custody based on facts and evidence—not the opinions of mental health “professionals” who back up their opinions with a diagnostic system which is both unreliable and admittedly irrelevant in legal matters.

On February 27th, the Los Angeles Times published a story about psychiatrist Joseph Kenan, who was removed from a case as child custody evaluator by a family court commissioner after she had been presented with information about questionable content on his Facebook page and other internet postings.  On various sites (using the altered names “Joe Kegan” or “Joe Keegan”) Kenan was found publicly baring his buttocks to the camera and posing with a friend, holding a cake with frosting graphically depicting a sexual act.  Other material which was posted (but which has since been removed) is alleged to have promoted illegal drug use, unprotected sex and male prostitution.  This material was discovered by a client of whom Kenan requested $35,000 in fees to finish his report—well in excess of the $7,500 the client was required to pay.

Kenan, who is also current president of the American Society for Adolescent Psychiatry, has been involved in hundreds of custody evaluations in Los Angeles County in the last ten years.

He is reported to currently be under investigation by the state medical licensing board, relative to four complaints against him.

Mental health practitioners who work in the Los Angeles County family court system in particular are reportedly only required to submit a sworn declaration detailing their training and experience; it is acknowledged that the court does not verify practitioners’ credentials.  The same may or may not hold true for other states.

One could argue that the state should fund the salary for a background checker to verify practitioners’ reported credentials.  This would not be a solution because, as we see with the case of Joseph Kenan, one can have the appropriate degree and experience and still have a private (or public, in Kenan’s case) life that calls into question their fitness to be making decisions which affect the lives of others.

But even more importantly, mental health/psychiatric custody evaluators, “qualified” or not, leading questionable social lives or not, are an expensive and unnecessary complication to the already turbulent divorce/custody scenario.  Our family courts need to remove this complication, reclaim full authority in custody matters and base their decisions solely on evidence, free of psychiatric opinion.

What is a psychiatric/mental health opinion based on?  What is it worth?

It is based on the evaluator’s opinion and “legitimized” by use of the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association.  DSM is the book which mental health practitioners use to “diagnose” people.

With regard to legal matters and psychiatric diagnoses (such as rendering custody decisions based on one parent’s alleged psychological fitness/unfitness) its authors admit:

“The clinical and scientific considerations involved in categorization of these conditions as mental disorders may not be wholly relevant to legal judgments….”[i]

A later edition of the manual addresses “[The] imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis”[ii] (which is just another way of saying that law is far more scientific a discipline than psychiatry).

“…there is still not a single multi-site study showing that DSM is routinely used with high reliability by regular mental health clinicians.  Nor is there any credible evidence that any version…has greatly increased its reliability beyond the previous version.”

Why is our legal system relying on an admittedly flimsy “science” to influence decisions which could adversely impact the lives of innocent children and well-intentioned parents?

And what of the diagnoses themselves?  The DSM is candid about that, too:

“For most of the DSM-III-R disorders…the etiology [cause] is unknown.”[iii] (“Most” is actually about 99%.  The only mental disorders they claim to know the cause of are the “organic” disorders such as drug withdrawal or “paranoid delusions” such as that caused by amphetamine abuse.  However, an understanding of the cause leads to an immediate realization that they are not mental disorders but are reactions to physical conditions.)

So, to summarize, a DSM diagnosis is not entirely relevant to a legal decision and is not consistent with the concerns of legal procedure and psychiatrists don’t even know the cause of any mental disorders.

How reliable then could a psychiatric opinion or evaluation be?

Not very.

A 1994 study to determine the reliability of the DSM concluded that “…there is still not a single multi-site study showing that DSM (any version) is routinely used with high reliability by regular mental health clinicians.  Nor is there any credible evidence that any version…has greatly increased its reliability beyond the previous version.”[iv]

The judge/commissioner/magistrate is without question more qualified to render a just decision by his/her own direct examination of the evidence (fact) than relying on the “results” of a mental health evaluation (opinion) which is based on a system which admittedly has no place in a court of law and which has been shown to be of low reliability.

As for Joseph Kenan, he is but the latest, albeit most flamboyant, example of a long and growing list of custody evaluators who have been called out or publicly disciplined for misconduct and/or negligence.  A few other recent examples:

In May 2010, the Arizona Board of Behavioral Health Examiners revoked the license of professional counselor Linda Bennardo for, among other things, recommending limiting a father’s access to his son based solely on information provided by the mother and daughters; in another case, Bennardo concluded that a three-year 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.[v]

Texas psychologist Melody M. Potter, Ph.D., was fined $3,000 for providing testimony in a custody case which contained insufficiently substantiated opinions.[vi]

In July 2009, the Washington State Department of Health fined licensed mental health counselor-social worker Sara Ellingson $1,250 for, among other things, recommending a court-ordered psychological evaluation of a parent whom she had not observed in more than two years.  Ellingson was disciplined in 2006 for providing opinions on parenting and custody in a case in which she failed to include information provided by an in-law which was relevant to one parent’s fitness to parent.[vii]

Colorado clinical social worker Joanne Baum was placed on probation for one year for writing a letter that contained judgments concerning a person she had never met and publishing recommendations regarding child custody issues without having full knowledge of the facts necessary to make such recommendations.[viii]

It’s time our family courts operated free of the arbitrary and ultimately destructive psychiatric/mental health system.

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2 Comments »

  1. Thank you for posting the information that you did. I feel very strongly that Psychiatrist and Psychologists who use their credentials to obstruct justice should be disciplined by government agencies very sternly.

    Comment by Billie — March 24, 2011 @ 7:19 am | Reply

    • You’re very welcome.

      Comment by Psych Crime Reporter — March 24, 2011 @ 10:03 am | Reply


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