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Useless Data or Useless System: How Courts Use Data

By: Taylor Toepke

“Court is about right and wrong. It is not about feelings, emotions, and the details of relationships. The court system with its restrictions on time, has little tolerance for listening to the endless minutia between two divorcing spouses”, stated by Denise Poisson, a Marriage and Family Psychotherapist from California. Usually when we think of people arguing in court, we picture Judge Judy sitting on her throne dictating what money goes to who and what the true version of the story is. People rely on the legal system to provide and determine justice and people rely on not only mental health professionals, but insurance companies, credit card companies, etc. to keep us safe when we are most vulnerable. When our mental health data is used in the legal system, the true test of privacy and justice are combined. Is mental health data being used fairly? Should it be used more? Does it have any effect on the overall outcome of the child and their health? How the data is used and how the data is valued is up to not only mental health professionals, but also the judges in each individual case who are hopefully combing out the bias that they and society have played. In this blog, I explore some cases that delve into privacy, bias, and pre-determined views of mental health data in child custody cases.

Privacy Issues Regarding Use of Mental Health Data

For years, Facebook has been on the forefront of using and selling data to build voter profiles or psychographic profiles of users. Data is so evident in everyday life that we almost wonder what information we have from our social media accounts or University isn’t being used or sold to others. With this in mind, how can we really regulate privacy when it comes to our mental health data? According to Dr. Melba Vasquez, a psychologist in Austin, Texas, “If a client is involved in litigation where his mental health is an issue, the judge can require the person’s therapist to testify even if someone else has initiated the suit” (Goleman). We might think this is a breach of client confidentiality, but it’s not. The therapist is given immunity to speak about every interaction a client has had with him or her. When it comes to child custody cases, an allegation against one parent to another can lead to one or both lawyers obtaining the history of the documented mental health treatment of the client. This means that if we have ever suffered from depression and saw a therapist or have suffered from a personality behavior at any given time, those records can be exposed, used, and sometimes abused in the courtroom. Nothing is off record and emotions can play a huge part when both parents are accusing each other of not being “fit” to take care of the child. We expect fairness and justice in a courtroom, and usually when it comes to child custody cases, the judge will order each parent to have a mental health evaluation done.

According to Denise Poisson, “Privacy/confidentiality was used originally to make clients feel safe. If the client feels that their information will be exposed to others, they will never trust the therapy, the therapist, and therefore, the session will be unproductive.” This might make you rethink your next visit to your counselor and telling them about your recent dream, but how that information is used in a courtroom is more important. Essentially, is it used in a negative or positive way?

Bias and Lack of Consideration for Mental Health Data

“Because judges are humans, they are not only biased because of their own societal conditioning, but of course by their life experiences. Particularly when they are triggered by their own unhealed childhood wounds” (Poisson). When it comes to data that is used in court cases, we rely a lot on judges and whether they are making unbiased decisions. For example, in MORGAN V. FORETICH, a domestic relations suit that dealt with two parents trying to gain custody of their child, the mother had claimed that her daughter was being sexually abused by her husband and therefore, would continually skip visitations that the child had with her father. In this long, drawn-out case with a judge who continually did not believe that the child was being molested, numerous evaluators tried to determine whether the child was sexually abused. The judge allowed for the child to be evaluated by specialists at the Chesapeake Institute in Maryland, a center for the study and treatment of sexually abused children (Szegedy). The therapist at the Institute determined that abuse had occurred, but the judge was still unpersuaded. During this time, the child was still granted visitations with her father. Szegedy goes on to state that “ In addition to influencing the proceedings through rulings on the admissibility of evidence, they contend, the judge also can influence the outcome of a trial by choosing to validate some experts over others” (Szegedy).

Perhaps the judge in this case had pre-determined views about child custody or perhaps had dealt with a mother who lied about abuse in the household a week earlier. Perhaps the judge has seen parents manipulate and deceive the evaluators during divorce and custody proceedings. There are limitless possibilities and numerous experiences that can make us biased. Data scientists usually define bias when a population sample was not representative of the whole and therefore, led to misguided results. When it comes to a court case, bias can affect everything, including the child’s mental health and future.

Does this mean that judges should no longer determine custody rights of children? Should the legal system allow for judges to “out-rule” or “ignore” evaluators that may have different data or results that are not equivalent to theirs? Denise Poisson shed a bit of light on this issue by expressing “In a perfect world, a custody settlement should require that all family members be assessed by three separate therapists who are experts in their field. That means individual sessions and family sessions that involve all family members.”

 

What Does the Data Say?

Dr. Bill Zuckerman, a psychologist and child custody evaluator in Virginia, had a case where he was asked to work with two young sisters whose parents were going through a divorce. The children seemed to despise the father, but after a couple sessions, Zuckerman concluded that the mother was poisoning the children against their father (Norris and Block). The custody evaluator ended up granting the father with custody of the children hoping that they would realize the father’s virtues. The children ended up sneaking away to see their mother and their mental health deteriorated so much that it led to the decision being reversed.

Most people’s initial reaction would’ve been to act upon what the data results were, meaning that if there was abuse and neglect, the “healthier” parent would gain custody. However, this example shows how the data presented can be interpreted in different ways. If the main goal is to do what is best for the children, how should evaluators use and gather the data? Alix Spiegel from National Public Radio, during the “Evaluators in Child-Custody Cases Scrutinized” talk, expressed that “Evaluators are expected to use tests in every custody evaluation. But Marc Ackerman, one of the country’s leading child custody evaluators, says some of the most popular tests are deeply flawed, including a series of tests commonly used to figure out how children feel about their parents” (Norris and Block).

Later in the talk, Timothy Tippins, a family law lawyer and child custody evaluation expert, stated that “The reality is that these evaluators file the reports in these cases and then they have no idea what happens to these children thereafter” (Norris and Block). Evaluators gain and determine the results of the data in the beginning, but never know the end results: are the children happy and safe? In many studies, the main goal is to forecast or determine what the best model is, and in this case, what the best parenting solution is, but usually you have earlier results that will help build that model. There have been years and years of child custody cases and an accumulation of data from those cases, but the data does not include the outcome of the child after the decision was made. Evaluators and judges don’t know if their efforts to keep the children safe and healthy actually paid off. They don’t know if they could’ve done something different or took a different approach to ensure the child’s best interests were kept. The effects of divorce and custody proceedings on children can be heartbreaking. Is the legal system making sure that they are doing their due diligence in ensuring the best care for each child?

Conclusion

People are evaluated everywhere: court room, therapy office, doctor’s office, banks, etc. There is no denying that data really aren’t private, especially when it comes to legal disputes. People are all biased and have experienced things in their own lives that make them judge others and pre-determine outcomes before reviewing each piece of data. Child custody cases involve so many factors and play such a big role in the outcome of how happy and healthy a child will become. There needs to be a better system in place that would allow professionals to evaluate the family system without bias and without the judge’s impact in the end. There needs to be records that are kept and follow-ups that evaluate the child’s mental health after the case.

Recently, a documentary appeared on Netflix called “The Trials of Gabriel Fernandez.” The trials were focused on the murder of the child by the two parents. There were a lot of issues of mental health professionals, law enforcement, and social workers not following up when it came to the child’s well-being. There are implications of each decision these professionals make. Depression and overall mental health stability are among these ramifications that need to be considered when custody is concerned. As talked about earlier in the MORGAN V. FORETICH case, children could potentially fall victim to a parent that sexually abuses them when there are not appropriate measures taken that reap the child’s best interest.

 A data scientist’s biggest fear is gathering data and not being able to use it effectively. Is the legal system just another case where the data are not used appropriately? We have so much reliance on the “Judge Judy’s” and the “Dr. Phil’s” of our world without questioning the validity of the evaluation and the validity of each person’s “unbiased” opinion.

References

Goleman, Daniel. “What You Reveal To a Psychotherapist May Go Further”. The New York Times, April 14, 1993, Wednesday, Late Edition – Final. https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:3SC6-X0N0-0024-J39J-00000-00&context=1516831. Accessed February 22, 2020.

Norris, Michele and Melissa Block. “Evaluators in Child-Custody Cases Scrutinized”. NPR All Things Considered (NPR), November 21, 2007 Wednesday. https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:4R63-TCR0-TWD3-700Y-00000-00&context=1516831. Accessed February 22, 2020.

Poisson, Denise. “Mental Health Data in Child Custody Cases.” E-mail interview. 20 Feb. 2020.

Szegedy-Maszak, Marianne. “WHO’S TO JUDGE?”. The New York Times, May 21, 1989, Sunday, Late City Final Edition. https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:3SJB-4TK0-002S-X3S8-00000-00&context=1516831. Accessed February 22, 2020.

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