What Ethical and Legal Pitfalls Must Forensic Psychologists Navigate When Providing Expert Testimony in Child Custody Evaluations?

One of the most consequential ethical pitfalls facing forensic psychologists involves role confusion between therapeutic and forensic functions. The American Psychological Association's Ethics Code explicitly addresses this concern by limiting psychologists from entering into multiple relationships that could reasonably impair objectivity or risk exploitation of the person being evaluated. In custody contexts, this means a psychologist who has served as a treating clinician for one parent cannot subsequently serve as a forensic evaluator in that family's custody dispute.

The rationale behind this limitation is that therapeutic relationships are built on advocacy and alliance with the patient, while forensic evaluations demand impartiality and objectivity. These cannot comfortably coexist in one psychologist’s relationship to a person or family. When a treating clinician attempts to testify as a forensic expert, the therapeutic relationship presumptively compromises their objectivity. The treating clinician who steps into a forensic role may also find that their prior therapeutic relationship is damaged beyond repair, as the patient experiences the shift as a betrayal of the therapeutic alliance.

This pitfall extends beyond individual treatment relationships. Forensic psychologists conducting child custody evaluations must be vigilant about avoiding relationships with anyone closely associated with the parties being evaluated. Accepting a referral to evaluate a family when one has previously treated the child, supervised the child's therapy, or consulted with either parent's attorney creates similar role conflicts. The evaluator must clarify their role at the outset of every engagement, ensuring all parties understand that the forensic relationship differs fundamentally from a therapeutic one, particularly regarding confidentiality, which is largely absent in forensic contexts.

The distinction between clinical and forensic evaluations impacts several critical factors. In clinical evaluation, the patient is the client and receives their test results directly. In forensic evaluation, the retaining party (often a court or attorney) is the client, and any reports are submitted to the referral source (and, usually, to the court and opposing attorney). Clinical assessments carry strong confidentiality protections, while information obtained during court-ordered forensic evaluations is typically not private. These fundamental differences require forensic psychologists to establish clear expectations with all parties before evaluation activities begin and to maintain those boundaries throughout the process.

Forensic psychologists testifying in child custody cases face pressure from multiple angles to offer opinions that extend beyond what their data can support. Attorneys seek definitive conclusions. Judges want clear guidance. Parents want validation. Yielding to these pressures and providing testimony that exceeds the bounds of the evaluation represents an ethical and legal pitfall that can undermine both the individual case and the broader credibility of forensic psychological expertise.

The APA's Specialty Guidelines for Forensic Psychology require practitioners to base opinions on "information and techniques sufficient to substantiate their findings." Evaluators must carefully distinguish between observations, inferences, and conclusions, and they must be prepared to explain how their expert opinions derive from the facts of the case. When forensic psychologists offer testimony that cannot be traced back to specific evaluation data, they expose themselves to effective cross-examination and undermine the court's ability to make informed decisions.

A related challenge involves testifying about individuals who have not been directly evaluated. The APA Ethics Code makes clear that psychologists must complete an examination before rendering opinions about specific individuals, whenever possible (and explain the mitigating circumstances when they can’t). In custody cases, this means forensic psychologists should not offer comparative custody recommendations when they have evaluated only one parent. Courts increasingly recognize this limitation, and opposing counsel will likely exploit it on cross-examination.

The pressure to exceed evaluation data often intensifies when attorneys attempt to influence report content. Research on retainer bias (also referred to as adversarial allegiance) has documented how explicit attorney demands and implicit expectations may set confirmation bias in motion. Some practitioners may face pressure to add statements favorable to the retaining party or to withhold statements that might be disadvantageous. Forensic psychologists must recognize these pressures and resist them, understanding that their ethical obligation is to the court and to an honest presentation of their findings rather than to the litigation goals of any party.

Cognitive biases represent a subtle but pervasive threat to ethical testimony in child custody evaluations. Research has consistently demonstrated that forensic mental health professionals are not immune to systematic errors in judgment. Confirmation bias poses particular dangers in custody work. An evaluator who forms an early impression of one parent based on initial referral information may unconsciously gather and interpret subsequent data in ways that support that preliminary conclusion, while discounting contradictory evidence that should prompt reconsideration.

Anchoring bias presents similar risks. When forensic psychologists review one parent's petition or pleadings before conducting independent evaluation activities, that initial frame can unduly influence subsequent assessments. The adversarial nature of custody proceedings, combined with the inherently ambiguous material evaluators must assess, creates fertile ground for these biases to operate. Studies examining clinical judgment have shown that even experienced forensic psychologists fall prey to these systematic errors, and that clinical experience alone does not necessarily provide protection. Indeed, expertise can sometimes increase susceptibility to certain biases by fostering overconfidence and reducing self-scrutiny.

Hindsight bias, in which people perceive past events as more predictable than they actually were, poses unique challenges in custody cases involving allegations of past harm or risk assessment for future parenting. When evaluating parents who have experienced adverse outcomes with their children, such as accidents, behavioral problems, or involvement with child protective services, evaluators may unconsciously view those outcomes as having been foreseeable and may assign unwarranted blame. This bias can distort risk assessments and lead to recommendations that fail to account for the genuine unpredictability of parenting challenges.

While forensic psychologists are ethically obligated to serve as impartial experts whose primary duty is to the court, the reality of being retained and compensated by one party creates pressures that can distort judgment, referred to as retainer bias. This circumstance is particularly problematic when attorneys explicitly or implicitly communicate expectations about desired conclusions. Forensic psychologists must implement systematic safeguards throughout the evaluation process, including using structured assessment protocols, generating and testing alternative hypotheses, and subjecting conclusions to systematic review before finalizing reports. Consultation with colleagues using blinded case information can provide an independent check on conclusions.

Considerable professional debate surrounds whether forensic psychologists should offer opinions on which parent should receive custody. Some practitioners and jurisdictions argue that making such recommendations exceeds the proper scope of psychological expertise, as custody determinations involve legal and policy considerations beyond mental health assessment. Others maintain that courts benefit from and expect comprehensive recommendations that integrate psychological findings with practical guidance.

The APA's Guidelines for Child Custody Evaluations leave this decision to the individual psychologist's judgment, emphasizing that recommendations must be based on the psychological best interests of the child and must be adequately supported by evaluation data. However, forensic psychologists should never make recommendations where the data or the evaluation does not support them. Testimony that ventures into unsupported recommendations exposes the evaluator to effective challenge and may ultimately harm the family the evaluation was meant to assist. The ultimate legal issue, determining the child's best interests, remains the exclusive province of the court, and forensic psychologists must be careful not to usurp that judicial function.

Documentation requirements present another area of ethical and legal concern. Child custody evaluations and parenting plans must meet standards established by the Association of Family and Conciliation Courts for being "independent, impartial, free of material conflicts of interest, fact-based, methodologically balanced, and culturally informed." Evaluators must create and maintain professional records that document their methods, findings, and reasoning in sufficient detail to allow meaningful review. Reports should use neutral, developmentally sensitive language, focus on recommendations rather than judgments, and be transparent about data sources and limitations. Inadequate documentation not only creates professional liability exposure but also undermines the report's utility to the court and its defensibility under cross-examination.

The documentation challenge extends to interview and testing notes, collateral contact records, and the reasoning process by which conclusions were reached. Forensic psychologists should document the specific data that supports each conclusion and the alternative hypotheses that were considered and rejected. This level of documentation creates accountability that helps reduce bias while also providing a defensible record should the evaluation be challenged. When testimony is questioned, the evaluator who can point to comprehensive documentation demonstrating a thorough, balanced methodology will be far better positioned than one whose records are sparse or incomplete.

Navigating these pitfalls requires more than awareness—it demands ongoing commitment to continuing education, structured assessment protocols, peer consultation, and honest self-reflection about the limits of one's objectivity. Forensic psychologists who invest in developing both the clinical rigor and cultural awareness that define excellent custody evaluation work will find themselves better positioned to provide testimony that serves families, satisfies courts, and maintains professional integrity. 

The ethical and legal landscape facing forensic psychologists testifying in child custody evaluations is complex and demanding. Role confusion, overreaching testimony, cognitive bias, and documentation failures represent distinct pathways to professional difficulty, and, more importantly, to outcomes that fail to serve children's best interests. The stakes in custody evaluations could hardly be higher: the families being evaluated are navigating profound transitions, and the recommendations forensic psychologists provide shape outcomes that ripple through children's lives well into the future.

eBook

• Child Custody Evaluation & Parenting Plan Preparation

Training

• Limited Time Bundle of Three Child Custody Trainings
• Child Custody Evaluation Certificate
• Interviewing, Report Writing, and Testifying in Child Custody Cases
• Introduction to Developmentally Appropriate Interviewing using the Revised NICHD Protocol
• AAFP: Reducing Bias and Error in Forensic Judgment
  
• Introduction to Using the MMPI-3 in Psychological Practice
• Incorporating the MMPI-2-RF in Family Court Evaluations
• AAFP: Parenting Capacity Assessments in Child Protection Court

Blog Posts

• What Best Practices Should I Follow as a Forensic Psychologist When Conducting Parenting Capacity Assessments (PCAs) in Custody Evaluations?
• As a Forensic Psychologist, How Do I Choose a Child Custody Evaluation and Parenting Plan Training that Supports Best Outcomes for the Child?
• What Should Forensic Professionals Know About the Evolution of "Child Custody" Evaluation to "Parenting Plan" Evaluation?
• How Child Custody Evaluations Can Benefit Children
• What Works and What Doesn’t – Bias Awareness and Correction Strategies Among Forensic Evaluators

Podcast

• Counselors in the Courtroom—Surviving and Thriving in Court Testimony