Cite as: Martindale, D. A. & Gould, J. W. (2007). Countertransference

Cite as: Martindale, D. A. & Gould, J. W. (2007). Countertransference and zebras: Forensic obfuscation. Journal of Child Custody, 4(3/4), 73-79. The Journal of Child Custody undoubtedly seems like an odd place in which to encounter an article that includes a discussion of language, but the contribution by Daniel Pickar entitled Countertransference Bias in the Child Custody Evaluator (this issue), invites a discussion of the usefulness (or lack thereof) of attaching new labels to familiar dynamics. Language is intended to facilitate communication. When writers in the custody field propose assigning new labels to interpersonal dynamics with which all participants in the custody evaluation process are familiar, it is appropriate that we debate the usefulness of doing so. Vocabularies that are unique to certain professions or fields of endeavor are similar to dialects. It has been said that “a language is a dialect with an army and navy (Weinreich, 1945, p.3). As explained by Weinreich, the distinction hinges in many respects on the power of the speakers to impose their way of speaking on others. Even without the armed forces referred to by Weinreich, certain vocabulary terms become widely accepted when they appear to meet the primary function of language, by facilitating communication. Many English speaking people with no ties to Judaism are, nonetheless, familiar with assorted Yiddish terms and become comfortable using them. In what some might deem to be a display of chutzpah, we assert that Pickar has not contributed to our understanding of various types of bias by tapping the ‘language’ of psychoanalysis in order to create numerous new vocabulary terms. We are in agreement with Pickar’s assertion that evaluators “may sometimes be affected by influences or biases stemming from past experience, which may be elicited by the personal characteristics of the parents or children being evaluated” (p. ___). We do not feel, however, that endeavors to understand and reduce the effects of such biases are more likely to meet with success by adding terminology borrowed from psychoanalytic theory. Though a parent “who presents as angry, hostile, or demeaning towards the evaluator” may generate a negative reaction in the evaluator, we see no benefit in assigning a vocabulary term to this common interpersonal dynamic. In our view, the assignment to this dynamic of a special term suggests that the dynamic is peculiar to our work and, therefore, should be identified (read: labeled). Pickar proposes identifying “average expectable reactions” as homogeneous countertransference and “exaggerated or unique” reactions as idiosyncratic countertransference. How and where would the line be drawn between average reactions and exaggerated reactions? When a female evaluator finds “herself dreading the prospect” of her next appointment with a father who is “dedicated to his two children, and [who] appeared to be free of any significant psychopathology”, neither expertise in psychoanalytic theory nor expertise in a mental health profession is needed in order to conclude that, as lay people would put it, the evaluator has brought some baggage to her work as an evaluator. If readers of the Journal of Child Custody feel that new terminology is needed to describe this dynamic and if the readers will forgive some kibitzing on our part, we propose describing this dynamic as baggagification. The evaluator described by Pickar found that the father being evaluated reminded her of “her very hypercritical father, who had also been physically abusive towards her as a child, and who was now deceased.”

When the United States Supreme Court handed down its decision in Daubert v. Merrill Dow Pharamaceuticals, [113 S.Ct. 2786, (1993)], Chief Justice Rehnquist, dissenting in part, wrote: “I am at a loss to know what is meant when it is said that the scientific status of a theory depends upon its ‘falsifiability,’ and I suspect some [Federal judges] will be, too” (at 2800). We take a similar position in objecting to the proposed introduction into our professional language of terminology derived from psychoanalytic theory. We doubt that those whose jobs require that they understand the effects of evaluator bias upon our work will find that their understanding is enhanced by mastering the distinction between homogeneous and idiosyncratic countertransference, between concordant and complimentary countertransference, or between direct and indirect countertransference. The ability to dispassionately examine the issues before the court may be impaired when judges have a strong dislike for some of the attorneys appearing before them. We see no advantage to describing this problem in terms of indirect countertransference. Neither does the term enhance our understanding of or our ability to address the problem that arises when evaluators who are angry at attorneys are less than objective in evaluating the litigants being represented by those attorneys. The positive bias that can develop when “evaluators discover that they share beliefs, interests, or experiences with one of the litigants but not with the other” has been previously described (Martindale, 2005) and various social psychologists (Heider, 1944, 1958; Wyer & Carlston, 1979) have studied and described the underlying dynamics. Do we enhance our understanding of this dynamic “in which a professional may become aligned with one of the parents” by referring to it as distorted countertransference? We do not feel that communication among professionals involved in custody work is facilitated when we endeavor to discriminate between distorted countertransference “in which a professional may become aligned with one of the parents” and “concordant countertransference, a form of direct countertransference. . . which occurs when the evaluator over-identifies with a parent whom they see [sic.] as similar in parenting approach or having common interests. . .”(p. 321). In promoting his new terms, Pickar makes reference to the “evaluator who grew-up with a depressed or alcohol-abusing parent” and who may, as a result, have “rescue fantasies”; the evaluator with a “strong identity as a helper [who] may . . . find themselves [sic.] offering advice”; the “evaluator who as a child took on the role of mediator in their [sic.] own high-conflict family”; “the evaluator whose marriage has ended due to infidelity on the part of their [sic.] spouse”; and, “the evaluator with an excessive need to please or who has some insecurity in their [sic.] judgment.” If we were to require that evaluators have healthy childhoods and healthy marital relationships, society would have to handle disputed custody cases with far fewer evaluators. But dramatic dysfunction in one’s personal life should prompt a prudent mental health professional to question his or her ability to dispassionately evaluate families involved in custody litigation. Biases are mental/emotional processes. In work done for the court, what matters is behavior. Unless judgment distorting biases manifest themselves in overt, identifiable behaviors, hypotheses concerning evaluator psychodynamics are not pertinent to court proceedings. Exploratory etiological excavations, undertaken in the

hopes of unearthing the origins of judgment distorting emotions and cognitions do not render these emotions and cognitions any more likely to be pertinent. In the civil rights arena, prejudice is of no interest to courts unless/until it is manifested in the form of unlawful behavior. In the custody arena, biases are only relevant when they are manifested in identifiable behavior. “The search for indications of bias is most efficiently begun by comparing the contents of an evaluator’s contemporaneously taken notes with the evaluator’s description of factors supporting the opinion(s) offered” (Martindale, 2001, p. 488). There are many ways in which impaired judgment stemming from biases can be identified. These include the application by the evaluator of different standards in examining and commenting on the actions of the two parents; the use insulting terminology in describing the non-favored parent; the use glowing terminology in describing the favored parent; assignment of minimal importance to possible parenting deficiencies in the favored parent; the assignment of much importance to reported flaws in the non-favored parent; an apparent unquestioningly acceptance the favored parent’s perspective; and an apparent rejection the non-favored parent’s perspective (Martindale & Gould, 2007). Custody evaluation is an area of specialization (AFCC, 2007). Guideline 1.2 of the Association of Family and Conciliation Courts’ Model Standards of Practice for Child Custody Evaluation, enumerates 23 specific areas in which evaluators should have education and supervised experience. Appropriate education and training are necessary but not sufficient. Not all physicians would make effective pediatricians. Neither would all physicians be comfortable functioning as oncologists. Temperamental differences come into play. Not all mental health professionals are temperamentally suited to evaluate families embroiled in custody litigation. Pickar writes: “With rare exception, child custody evaluators have originally been trained as psychotherapists and enter the field with a sincere desire to empathically assist others with their pain and suffering” (p. ___). The preceding sentence contains two statements, and we strongly disagree with the second; namely, that, with rare exception, evaluators “enter the field with a sincere desire to empathically assist others with their pain and suffering.” An evaluator with “a sincere desire to empathically assist” those being evaluated is destined to be an ineffective evaluator. We are not alone in holding this view. Ceci and Hembrooke (1998, p. 4) have expressed the view that “the uniquely human qualities that compel us to want to help are the very qualities that can make us poor experts.” Shuman (1993, p. 298) has opined that the techniques customarily employed by mental health professionals to establish a therapeutic alliance “are entirely inappropriate in a court-ordered examination” In 1988, Shapiro described “the skepticism, distance, and objectivity necessary to perform a comprehensive forensic evaluation” (p. 84). Roughly a decade later, Greenberg and Shuman (1997), described the requisite mind-set of evaluators as being characterized by neutrality, objectivity, and detachment. Mental health professionals who bring to the evaluation process “a sincere desire to empathically assist” have failed to jettison their clinical baggage. Elsewhere, we have written that expert testimony provided to courts should have a basis in the scientific literature and opinions offered by experts should be based upon data obtained through the use of reliable methods (Gould & Martindale, 2007; Martindale & Gould, 2004). Pickar describes countertransference as a “phenomenon

originally described by Freud (1912/1958) in the psychoanalytic literature” and as “a term primarily applied to psychotherapy relationships, referring to the therapist’s reactions, thoughts, and feelings about his or her patient based upon neurotic or unconscious conflict” (p. ___). To the best of our knowledge, researchers have been unable to develop methods by means of which the core concepts of psychoanalysis might be subjected to systematic empirical scrutiny. Since expert testimony must be based upon “sufficient facts or data”, must be “the product of reliable principles and methods”, and must be offered by a witness who has “applied the principles and methods reliably to the facts of the case” (FRE 702), we question the wisdom of offering expert testimony regarding experts’ countertransferential reactions to those being evaluated. Conclusion We do not wish to offend those who enjoy thoughts of Zebras, but the generally accepted wisdom is “When in Montana, if you hear hoofbeats, think ‘horses’, not ‘zebras.” The concept of examining the adequacy of simple explanations before progressing to more complex explanations is not a new one. In the 14th century, a Franciscan friar and logician, William of Ockham, developed the lex parsimoniae (known to most of us as the law of parsimony or as Ockham’s razor). As presented to the world by William of Ockham, the law reads: “Entia non sunt multiplicanda praeter necessitatem.” We are informed that this translates to: “Entities should not be multiplied beyond necessity.” Our understanding of the dynamics of bias, as they affect the work of custody evaluators, will not be enhanced by the addition to our professional vocabulary of a dozen terms derived from psychoanalytic theory. References: Association of Family and Conciliation Courts (2007). Model Standards of Practice for Child Custody Evaluation. Family Court Review, 45(1), 70-91. Ceci, S. J. & Hembrooke, H. (1998). Expert witnesses in child abuse cases: What can and should be said in court. Washington, DC: American Psychological Association. Gould, J. W. & Martindale, D. A. (2007). The art and science of child custody evaluations. New York: Guilford. Greenberg, S. A. & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28:1, 50-57 Heider, F. (1946). Attitudes and cognitive organization. Journal of Psychology, 21, 107-112. Heider, F. (1958). The psychology of interpersonal relations. New York: Wiley. Martindale, D. A. (2001). Cross-examining mental health experts in child custody litigation. The Journal of Psychiatry and Law, 29/Winter 2001, 483-511. Martindale, D. A. (2005). Confirmatory bias and confirmatory distortion. Pages 31-48 in J. R. Flens & L. Drozd (Eds.) Psychological testing in child custody evaluations. New York: Haworth.

Martindale, D. A. & Gould, J. W. (2004). The forensic model: Ethics and scientific methodology applied to custody evaluations. Journal of Child Custody: Research, Issues, and Practices, 1:2, 1-22. Martindale, D. A. & Gould, J. W. (2007). Evaluating the evaluators in custodial placement disputes. In H. Hall (Ed.) Forensic Psychology and Neuropsychology for Criminal and Civil Cases. Boca Raton, FL: Taylor & Francis. Shapiro, D. L. (1988). Ethical constraints in forensic settings: Understanding the limits of our expertise. Psychotherapy in Private Practice, 6:1, 71-86. Shuman, D. W. (1993) The use of empathy in forensic examinations. Ethics and Behavior, 3, 223-302. Weinreich, Max (1945). Der YIVO un di problemen fun undzer tsayt, YIVO Bletter, 25(1), 3-18. Wyer, R. S. & Carston, D. (1979). Social cognition, inference, and attribution. Hillsdale, NJ: Erlbaum. --