Family Law Forum Ethical Considerations for FMHA In Family Law Proceedings James Davidson Ph.D. www. jamesdavidson.net davidsonpsych@me.com

Ethical Behavior Leads to Reliability in Court Ethics = Moral principles that govern a person's behavior or an activity. Systematizing, defending, and recommending of right and wrong conduct Issue: Professional ethics guide aspirational behavior for work as a counselor, social worker, LMFT or psychologist Issue: Forensic ethics guide aspirational behavior for the general conduct of work with and/or for the court  Issue: Model standards and guidelines (i.e. best practices) guide aspirational behavior for the conduct of specific types of work with and/or for the court

Professional Ethics Codes American Counseling Association Code of Ethics 2014 National Association of Social Workers Code of Ethics 2008 revised National Association of Forensic Social Workers Code of Ethic 1987 American Association of Marriage and Family Therapists Code of Ethics 2015 American Psychological Association Ethical Principles of Psychologists and Code of Conduct with 2010 Amendments American Psychological Association Standards and Guidelines for Forensic Psychology 2013

Professional Ethics Codes and Forensic Guidance American Counseling Association Code of Ethics 2014 E.13. Forensic Evaluation: Evaluation for Legal Proceedings E.13.a. Primary Obligations When providing forensic evaluations, the primary obligation of counselors is to produce objective ndings that can be substantiated based on information and techniques appropriate to the evalua- tion, which may include examination of the individual and/or review of records. Counselors form professional opinions based on their professional knowledge and expertise that can be supported by the data gathered in evaluations. Counselors de ne the limits of their reports or testimony, especially when an examination of the individual has not been conducted. Dimensions of reciprocal connectedness with younger children include: ■ Frequencyandqualityofeyecontact ■ Frequency of affectionate touching or soothing 114 JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS ❖ 2000 Spontaneous anticipation of the child’s needs or desires Empathicresponsetotheneedsofthechildfor attention Spontaneous smiling in both directions Bilateralinitiationofaffectionateinteractions Understandingthechild’suniquetemperament Affectionate speech or “cooing” Singing,reading,andplayingwiththechild Dimensions with older children might include: Recognitionofthechildasauniqueindividual Recognition of the particular needs of the develop- mental stage of the child Valuing the child for who he or she is Trying to understand the child’s world from his or her perspective Trying to teach the child Trying to learn from the caregiver Seekingguidanceorcomfortfromthecaregiver Sharingpositiveexperiences Maintaining a relationship that allows the child some measure of control while setting limits and maintain- ing boundaries

Professional Ethics Codes and Forensic Guidance American Counseling Association Code of Ethics 2014 E.13.b. Consent for Evaluation Individuals being evaluated are in- formed in writing that the relationship is for the purposes of an evaluation and is not therapeutic in nature, and entities or individuals who will receive the evaluation report are identified. Counselors who perform forensic evaluations obtain written consent from those being evaluated or from their legal representative unless a court orders evaluations to be conducted without the written consent of the individuals being evaluated. When children or adults who lack the capacity to give voluntary consent are being evaluated, informed written consent is obtained from a parent or guardian. Dimensions of reciprocal connectedness with younger children include: ■ Frequencyandqualityofeyecontact ■ Frequency of affectionate touching or soothing 114 JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS ❖ 2000 Spontaneous anticipation of the child’s needs or desires Empathicresponsetotheneedsofthechildfor attention Spontaneous smiling in both directions Bilateralinitiationofaffectionateinteractions Understandingthechild’suniquetemperament Affectionate speech or “cooing” Singing,reading,andplayingwiththechild Dimensions with older children might include: Recognitionofthechildasauniqueindividual Recognition of the particular needs of the develop- mental stage of the child Valuing the child for who he or she is Trying to understand the child’s world from his or her perspective Trying to teach the child Trying to learn from the caregiver Seekingguidanceorcomfortfromthecaregiver Sharingpositiveexperiences Maintaining a relationship that allows the child some measure of control while setting limits and maintain- ing boundaries

Professional Ethics Codes and Forensic Guidance American Counseling Association Code of Ethics 2014 E.13.c. Client Evaluation Prohibited Counselors do not evaluate current or former clients, clients’ romantic partners, or clients’ family members for forensic purposes. Counselors do not counsel individuals they are evaluating. E.13.d. Avoid Potentially Harmful Relationships Counselors who provide forensic evaluations avoid potentially harmful professional or personal relationships with family members, romantic part- ners, and close friends of individuals they are evaluating or have evaluated in the past. Dimensions of reciprocal connectedness with younger children include: ■ Frequencyandqualityofeyecontact ■ Frequency of affectionate touching or soothing 114 JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS ❖ 2000 Spontaneous anticipation of the child’s needs or desires Empathicresponsetotheneedsofthechildfor attention Spontaneous smiling in both directions Bilateralinitiationofaffectionateinteractions Understandingthechild’suniquetemperament Affectionate speech or “cooing” Singing,reading,andplayingwiththechild Dimensions with older children might include: Recognitionofthechildasauniqueindividual Recognition of the particular needs of the develop- mental stage of the child Valuing the child for who he or she is Trying to understand the child’s world from his or her perspective Trying to teach the child Trying to learn from the caregiver Seekingguidanceorcomfortfromthecaregiver Sharingpositiveexperiences Maintaining a relationship that allows the child some measure of control while setting limits and maintain- ing boundaries

Professional Ethics Codes and Forensic Guidance National Association of Social Workers Code of Ethics 2008 revised Does not address forensic evaluations. National Organization of Forensic Social Work Code of Ethics 1987 Although 30 years old, the NOFSW code does address in detail forensic work. Dimensions of reciprocal connectedness with younger children include: ■ Frequencyandqualityofeyecontact ■ Frequency of affectionate touching or soothing 114 JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS ❖ 2000 Spontaneous anticipation of the child’s needs or desires Empathicresponsetotheneedsofthechildfor attention Spontaneous smiling in both directions Bilateralinitiationofaffectionateinteractions Understandingthechild’suniquetemperament Affectionate speech or “cooing” Singing,reading,andplayingwiththechild Dimensions with older children might include: Recognitionofthechildasauniqueindividual Recognition of the particular needs of the develop- mental stage of the child Valuing the child for who he or she is Trying to understand the child’s world from his or her perspective Trying to teach the child Trying to learn from the caregiver Seekingguidanceorcomfortfromthecaregiver Sharingpositiveexperiences Maintaining a relationship that allows the child some measure of control while setting limits and maintain- ing boundaries

Professional Ethics Codes and Forensic Guidance American Association of Marriage and Family Therapists Code of Ethics 2015 STANDARD VII  PROFESSIONAL EVALUATIONS Marriage and family therapists aspire to the highest of standards in providing testimony in various contexts within the legal system. 7.1 Performance of Forensic Services. Marriage and family therapists may perform forensic services which may include interviews, consultations, evaluations, reports, and assessments both formal and informal, in keeping with applicable laws and competencies. Dimensions of reciprocal connectedness with younger children include: ■ Frequencyandqualityofeyecontact ■ Frequency of affectionate touching or soothing 114 JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS ❖ 2000 Spontaneous anticipation of the child’s needs or desires Empathicresponsetotheneedsofthechildfor attention Spontaneous smiling in both directions Bilateralinitiationofaffectionateinteractions Understandingthechild’suniquetemperament Affectionate speech or “cooing” Singing,reading,andplayingwiththechild Dimensions with older children might include: Recognitionofthechildasauniqueindividual Recognition of the particular needs of the develop- mental stage of the child Valuing the child for who he or she is Trying to understand the child’s world from his or her perspective Trying to teach the child Trying to learn from the caregiver Seekingguidanceorcomfortfromthecaregiver Sharingpositiveexperiences Maintaining a relationship that allows the child some measure of control while setting limits and maintain- ing boundaries

Professional Ethics Codes and Forensic Guidance American Association of Marriage and Family Therapists Code of Ethics 2015 7.2 Testimony in Legal Proceedings Marriage and family therapists who provide expert or fact witness testimony in legal proceedings avoid misleading judgments, base conclusions and opinions on appropriate data, and avoid inaccuracies insofar as possible. When offering testimony, as marriage and family therapy experts, they shall strive to be accurate, objective, fair, and independent.  7.3 Competence. Marriage and family therapists demonstrate competence via education and experience in providing testimony in legal systems. Dimensions of reciprocal connectedness with younger children include: ■ Frequencyandqualityofeyecontact ■ Frequency of affectionate touching or soothing 114 JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS ❖ 2000 Spontaneous anticipation of the child’s needs or desires Empathicresponsetotheneedsofthechildfor attention Spontaneous smiling in both directions Bilateralinitiationofaffectionateinteractions Understandingthechild’suniquetemperament Affectionate speech or “cooing” Singing,reading,andplayingwiththechild Dimensions with older children might include: Recognitionofthechildasauniqueindividual Recognition of the particular needs of the develop- mental stage of the child Valuing the child for who he or she is Trying to understand the child’s world from his or her perspective Trying to teach the child Trying to learn from the caregiver Seekingguidanceorcomfortfromthecaregiver Sharingpositiveexperiences Maintaining a relationship that allows the child some measure of control while setting limits and maintain- ing boundaries

Professional Ethics Codes and Forensic Guidance American Association of Marriage and Family Therapists Code of Ethics 2015 7.4 Informed Consent. Marriage and family therapists provide written notice and make reasonable efforts to obtain written consents of persons who are the subject(s) of evaluations and inform clients about the evaluation process, use of information and recommendations, financial arrangements, and the role of the therapist within the legal system. 7.5 Avoiding Conflicts. Clear distinctions are made between therapy and evaluations. Marriage and family therapists avoid conflict in roles in legal proceedings wherever possible and disclose potential conflicts. As therapy begins, marriage and family therapists clarify roles and the extent of confidentiality when legal systems are involved. Dimensions of reciprocal connectedness with younger children include: ■ Frequencyandqualityofeyecontact ■ Frequency of affectionate touching or soothing 114 JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS ❖ 2000 Spontaneous anticipation of the child’s needs or desires Empathicresponsetotheneedsofthechildfor attention Spontaneous smiling in both directions Bilateralinitiationofaffectionateinteractions Understandingthechild’suniquetemperament Affectionate speech or “cooing” Singing,reading,andplayingwiththechild Dimensions with older children might include: Recognitionofthechildasauniqueindividual Recognition of the particular needs of the develop- mental stage of the child Valuing the child for who he or she is Trying to understand the child’s world from his or her perspective Trying to teach the child Trying to learn from the caregiver Seekingguidanceorcomfortfromthecaregiver Sharingpositiveexperiences Maintaining a relationship that allows the child some measure of control while setting limits and maintain- ing boundaries

Professional Ethics Codes and Forensic Guidance American Association of Marriage and Family Therapists Code of Ethics 2015 7.6 Avoiding Dual Roles. Marriage and family therapists avoid providing therapy to clients for whom the therapist has provided a forensic evaluation and avoid providing evaluations for those who are clients, unless otherwise mandated by legal systems. 7.7 Separation of Custody Evaluation from Therapy. Marriage and family therapists avoid conflicts of interest in treating minors or adults involved in custody or visitation actions by not performing evaluations for custody, residence, or visitation of the minor. Marriage and family therapists who treat minors may provide the court or mental health professional performing the evaluation with information about the minor from the marriage and family therapist’s perspective as a treating marriage and family therapist, so long as the marriage and family therapist obtains appropriate consents to release information. Dimensions of reciprocal connectedness with younger children include: ■ Frequencyandqualityofeyecontact ■ Frequency of affectionate touching or soothing 114 JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS ❖ 2000 Spontaneous anticipation of the child’s needs or desires Empathicresponsetotheneedsofthechildfor attention Spontaneous smiling in both directions Bilateralinitiationofaffectionateinteractions Understandingthechild’suniquetemperament Affectionate speech or “cooing” Singing,reading,andplayingwiththechild Dimensions with older children might include: Recognitionofthechildasauniqueindividual Recognition of the particular needs of the develop- mental stage of the child Valuing the child for who he or she is Trying to understand the child’s world from his or her perspective Trying to teach the child Trying to learn from the caregiver Seekingguidanceorcomfortfromthecaregiver Sharingpositiveexperiences Maintaining a relationship that allows the child some measure of control while setting limits and maintain- ing boundaries

Professional Ethics Codes and Forensic Guidance American Association of Marriage and Family Therapists Code of Ethics 2015 7.8 Professional Opinions. Marriage and family therapists who provide forensic evaluations avoid offering professional opinions about persons they have not directly interviewed. Marriage and family therapists declare the limits of their competencies and information. 7.9 Changes in Service. Clients are informed if changes in the role of provision of services of marriage and family therapy occur and/or are mandated by a legal system. 7.10 Familiarity with Rules. Marriage and family therapists who provide forensic evaluations are familiar with judicial and/or administrative rules prescribing their roles Dimensions of reciprocal connectedness with younger children include: ■ Frequencyandqualityofeyecontact ■ Frequency of affectionate touching or soothing 114 JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS ❖ 2000 Spontaneous anticipation of the child’s needs or desires Empathicresponsetotheneedsofthechildfor attention Spontaneous smiling in both directions Bilateralinitiationofaffectionateinteractions Understandingthechild’suniquetemperament Affectionate speech or “cooing” Singing,reading,andplayingwiththechild Dimensions with older children might include: Recognitionofthechildasauniqueindividual Recognition of the particular needs of the develop- mental stage of the child Valuing the child for who he or she is Trying to understand the child’s world from his or her perspective Trying to teach the child Trying to learn from the caregiver Seekingguidanceorcomfortfromthecaregiver Sharingpositiveexperiences Maintaining a relationship that allows the child some measure of control while setting limits and maintain- ing boundaries

Professional Ethics Codes and Forensic Guidance American Psychological Association Ethical Principles of Psychologists and Code of Conduct with 2010 Amendments 9. Assessment 9.01 Bases for Assessments 9.02 Use of Assessments 9.03 Informed Consent in Assessments 9.04 Release of Test Data 9.06. Interpreting Assessment Results Dimensions of reciprocal connectedness with younger children include: ■ Frequencyandqualityofeyecontact ■ Frequency of affectionate touching or soothing 114 JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS ❖ 2000 Spontaneous anticipation of the child’s needs or desires Empathicresponsetotheneedsofthechildfor attention Spontaneous smiling in both directions Bilateralinitiationofaffectionateinteractions Understandingthechild’suniquetemperament Affectionate speech or “cooing” Singing,reading,andplayingwiththechild Dimensions with older children might include: Recognitionofthechildasauniqueindividual Recognition of the particular needs of the develop- mental stage of the child Valuing the child for who he or she is Trying to understand the child’s world from his or her perspective Trying to teach the child Trying to learn from the caregiver Seekingguidanceorcomfortfromthecaregiver Sharingpositiveexperiences Maintaining a relationship that allows the child some measure of control while setting limits and maintain- ing boundaries

Professional Ethics Codes and Forensic Guidance American Psychological Association Ethical Principles of Psychologists and Code of Conduct with 2010 Amendments 9. Assessment 9.07 Assessment by Unqualified Persons 9.08 Obsolete Tests and Outdated Test Results 9.09 Test Scoring and Interpretation Services 9.10 Explaining Assessment Results 9.11 Maintaining Test Security Dimensions of reciprocal connectedness with younger children include: ■ Frequencyandqualityofeyecontact ■ Frequency of affectionate touching or soothing 114 JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS ❖ 2000 Spontaneous anticipation of the child’s needs or desires Empathicresponsetotheneedsofthechildfor attention Spontaneous smiling in both directions Bilateralinitiationofaffectionateinteractions Understandingthechild’suniquetemperament Affectionate speech or “cooing” Singing,reading,andplayingwiththechild Dimensions with older children might include: Recognitionofthechildasauniqueindividual Recognition of the particular needs of the develop- mental stage of the child Valuing the child for who he or she is Trying to understand the child’s world from his or her perspective Trying to teach the child Trying to learn from the caregiver Seekingguidanceorcomfortfromthecaregiver Sharingpositiveexperiences Maintaining a relationship that allows the child some measure of control while setting limits and maintain- ing boundaries

Professional Ethics Codes and Forensic Guidance 1. Responsibilies 1.01 Integrity 1.02 Impartiality and Fairness 1.03 Avoiding Conflicts of Interest 2. Competence 2.01 Scope of Competence 2.02 Gaining and Maintaining Competence 2.03 Representing Competencies 2.04 Knowledge of the Legal System and Legal Rights of Individuals 2.05 Knowledge of the Scientific Foundation for Opinions and Testimony 2.06 Knowledge of the Scientific Foundation for Teaching and Research

Professional Ethics Codes and Forensic Guidance 2. Competence 2.07 Considering the Impact of Personal Beliefs and Experiences 2.08 Appreciation of Individual and Group Differences 2.09 Appropriate Use of Services and Products 3. Diligence 3.01 Provision of Services 3.02 Responsiveness 3.03 Communication 3.04 Termination of Services

Professional Ethics Codes and Forensic Guidance 4. Relationships 4.01 Responsibilities to Retaining Parties 4.02 Multiple Relationships 4.02.01 Therapeutic-Forensic Role Conflicts 4.02.02 Expert Testimony by Practitioners Providing Therapeutic Services 4.02.03 Provision of Forensic Therapeutic Services 4.03 Provision of Emergency Mental Health Services to Forensic Examinees 5. Fees 5.01 Determining Fees 5.02 Fee Arrangements 5.03 Pro Bono Services

Professional Ethics Codes and Forensic Guidance 6. Informed Consent, Notification and Assent 6.01 Timing and Substance 6.02 Communication with Those Seeking to Retain a Forensic Practitioner 6.03 Communication with Forensic Examinees 6.03.01 Persons Not Ordered or Mandated to Undergo Examination 6.03.02 Persons Ordered or Mandated to Undergo Examination or Treatment 6.03.03 Persons Lacking Capacity to Provide Informed Consent 6.03.04 Evaluation of Persons Not Represented by Counsel 6.04 Communication with Collateral Sources of Information 6.05 Communication in Research Contexts

Professional Ethics Codes and Forensic Guidance 7. Conflicts in Practice 7.01 Conflicts with Legal Authority 7.02 Conflicts with Organizational Demands 7.03 Resolving Ethical Issues with Fellow Professionals 8. Privacy, Confidentiality, and Privilege 8.01 Release of Information 8.02 Access to Information 8.03 Acquiring Collateral and Third Party Information 8.04 Use of Case Materials in Teaching, Continuing Education etc.

Professional Ethics Codes and Forensic Guidance 9. Methods and Procedures 9.01 Use of Appropriate Methods 9.02 Use of Multiple Sources of Materials 9.03 Opinions Regarding Persons Not Examined 10. Assessment 10.01 Focus on Legally Relevant Factors 10.02 Selection and Use of Assessment Procedures 10.03 Appreciation of Individual Differences 10.04 Consideration of Assessment Settings 10.05 Provision of Assessment Feedback 10.06 Documentation and Compilation of Data Considered 10.07 Provision of Documentation 10.08 Record Keeping

Professional Ethics Codes and Forensic Guidance 11. Professional and Other Communication 11.01 Accuracy, Fairness and Avoidance of Deception 11.02 Differentiating Observations, Inferences and Conclusions 11.03 Disclosing Sources of Information and Bases of Opinions 11.04 Comprehensive and Accurate Presentation of Opinions in Reports and Testimony 11.05 Commenting Upon Other Professionals and Participants in Legal Proceedings 11.06 Out of Court Statements 11.07 Commenting Upon Legal Proceedings

Model Standards & Guidelines Embed Ethics IRFLP 719 Require Adherence to One of the Following MSG: AAML 2015 Child Custody Evaluation Standards AFCC 2006 Model Standards for Child Custody APA 2009 Guidelines for Child Custody Evaluations In Family Law Proceedings

References on Ethics Association of Family and Conciliation Court www.afccnet.org American Psychological Association https://www.zerotothree.org/ American Association of Matrimonial Lawyers http://www.azcourts.gov/portals/31/parentingTime/PPWguidelines.pdf National Association of Forensic Social Workers http://kspope.com/ American Counselors Association

James Davidson Ph.D. Zion Bank Building 800 W Main St. STE-1460 Boise ID 83702 (208) 401-9292 staff (208) 971-1380 cell