At PsychLaw.net, we are aware that there are very many people who are misinformed and who spread this misinformation throughout the psychiatric and legal communities. The recently published book, Parental Alienation — Science and Law, provides many examples of misinformation regarding PA, which have typically been published in journal articles and books intended for mental health and legal professionals. The chapter authors have identified the misinformation and refuted it through the use of scientific studies and peer reviewed professional literature. Here, we provide examples of misinformation that have been presented in legal settings, especially by psychologists. There are numerous examples of psychologists failing to comply with the APA’s standards and guidance. We use Robert Geffner, Ph.D., and Joyanna Silberg, Ph.D., as examples of psychologists who have presented questionable testimony in legal settings. On the bright side, there are experienced attorneys and judges who have been able to recognize problems in time to exclude unreliable, unhelpful, or unqualified testimony. While some of this unwanted “expertise” is captured in voir dire, other problems can be discovered during cross-examination or by a savvy trial court.
TESTIMONY BY ROBERT GEFFNER, PH.D.
Dr. Geffner has a Diplomate in Clinical Neuropsychology, is Board Certified in Couple & Family Psychology, and is an editor of a handful of peer-reviewed journals. An outspoken PA denier, Dr. Geffner has published several articles challenging the validity of PA.[1] Were education and experience the only criteria for admitting expert testimony, Dr. Geffner would appear to be well-qualified to provide an opinion in PA cases. Through proper examination and voir dire, however, several instances where Dr. Geffner attempted to proffer problematic unreliable testimony were identified, and his proposed testimony discredited. Here are illustrations for attorneys developing voir dire questions.
In re Adoption of Joshua S., California, 2005 [2]
The California case of In re Adoption of Joshua S. involved the adoption of an artificially inseminated child by the same-sex partner of the mother. Approximately 13 months after their second child was born but before his adoption was completed, the parties’ relationship eroded to the point that the partner left the family residence.[3] During proceedings by the partner to enforce an adoption agreement entered while the two were still a couple, Mother alleged the agreement was the result of “fraud or duress,” and she later obtained a “domestic violence restraining order” against her former partner.[4]
The trial court ultimately concluded that it was in the child’s best interests that the adoption go forward[5]. In doing so, it rejected the testimony of Mother’s expert on domestic violence, Dr. Geffner, which it found to be “interesting in the abstract but not applicable to the best interest determination … [as] there is no evidence that these boys are being exposed to any continuing domestic violence.”[6]
“No evidence” of the domestic violence alleged by Mother is an important phrase in this opinion. It appears she hired Dr. Geffner to bolster her claim.[7] While it is not clear if the complete lack of evidence—“no evidence”—was adduced by a prepared cross-examiner, Dr. Geffner’s testimony would have been exposed by an adequate voir dire. Did they inquire into Dr. Geffner’s methods, including whether he had examined the people involved or simply relied on a record review?[8] Did the attorney then contrast his method and preparation with the clear finding of “no evidence?” In any event, the trial court’s rejection of Dr. Geffner’s opinion was affirmed by the three-judge panel of the California Fourth District Court of Appeal.[9]
Dr. Joyanna Silberg is a psychologist, Senior Consultant for Child and Adolescent Trauma with the Sheppard Pratt Health System, and Executive Vice-President of the Leadership Council on Child Abuse & Interpersonal Violence. She has written and edited books on child abuse and trauma and is a PA denier who frequently speaks and presents on the topic. Like Dr. Geffner, on paper it would appear that Dr. Silberg is qualified to provide an opinion on PA. However (also like Dr. Geffner), savvy trial courts and litigators have revealed on numerous occasions that her knowledge or her methods or her familiarity with and reliance on the actual facts of the case were insufficient to enable her to provide reliable expert testimony. Here are some cases in which Silberg testified that demonstrate this that we at PsychLaw.net have found.
Volodarsky v. Tarachanskaya, Maryland, 2006
In Volodarsky v. Tarachanskaya, a mother waged a years-long campaign of unsubstantiated allegations and alienation from the moment of the child’s birth.[10] Mother’s various claims included that the child would return from Father’s care smelling of smoke, hungry, and bruised, and that Father physically and sexually abused the child. And with each new allegation, Mother unilaterally suspended visitation. As each allegation was returned unsubstantiated by investigating social workers, Mother continued to withhold visitation, and eventually the court ordered a psychiatric evaluation of both parents. Mother was revealed to have “little insight into her part in the current situation …, sees all of the difficulties as related to [Father],” and had no compunction against using the courts to interfere with his visitation.[11]
Mother hired Dr. Silberg, who seemed to confirm Mother’s allegations, perhaps to rehabilitate Mother’s position. Dr. Silberg testified to clear “evidence” that Father was abusing the child, and testified that “it is simply impossible to explain the level of symptoms that [Child] is suffering from …. [T]he child is seriously at risk of abuse,” and that the child’s statements were “so vivid and accurate that only real experience could produce these reports.”[12] After that testimony was presented, the cross-examiner could argue that Dr. Silberg may have violated the APA guidelines and ethical codes related to dishonesty, giving professional opinions about people they haven’t met, and bias.[13]
Father countered Dr. Silberg’s testimony with that of two experts. Shockingly, one expert testified that the child only reported abuse when Dr. Silberg, whom the child identified as “mommy’s friend,” was mentioned. In Volodarsky, the court found that Father was not sexually abusing the child.[14]
L.S. v. C.T., South Dakota, 2009
In the South Dakota case of L.S. v. C.T.,[15] Mother and Father separated when Child was just three months old. Child resided primarily with Mother in another state, and Mother began making allegations of sexual abuse by Father when Child was age two. Investigations were conducted by law enforcement and child protective services in both states, with all determining the allegations were unfounded. Just over a year later, Mother made new allegations of sexual abuse. There were no other indications of abuse, and the second CPS investigation was returned “unsubstantiated.”[16]
Nine months later, Mother made a third allegation of sexual abuse, and this last was tried over three days, during which 16 witnesses testified. Mother testified that Child reported to her that Father fondled and “poked” at Child’s genitalia and that, when Child returned from visitation with Father, she would “demonstrate how she tried to resist the abuse by holding her legs together.”[17] On the other hand, a senior investigator who looked into these latest allegations of abuse testified that he had concluded after his interview with the child, whose statements varied and contradicted one another, “that there is a high probability that she has been led.”[18]
This opinion was mirrored by another investigator, who had concluded that Mother was trying to “sabotage”[19] the parent–child relationship. The experienced investigator also testified Mother traveled to various law enforcement, child protection agencies, child advocacy centers, and medical personnel in South Dakota and Nebraska to find someone who would identify child abuse.[20]
The child also displayed other symptoms of alienation, including that she “could not indicate one good quality about her father.”[21] As this evidence of manipulation and alienation piled up, Mother hired Dr. Silberg who met with the child once, the day before testimony.[22] Dr. Silberg testified that per the “testing” used, Child’s scores were “literally off the charts”[23] in comparison to other children who had been sexually abused, and that Child was a “severely traumatized child with an inordinate number of symptoms of both trauma and sexual preoccupation.”[24] Dr. Silberg further opined that “it would be dangerous even for supervised reunification because the child presumes that the abuse must have been okay if nobody is saying anything to them about it.”[25]
It is likely that Dr. Silberg’s testimony would have been excluded if a proper voir dire had occurred. For example, the prepared cross examiner could endeavor to show that Dr. Silberg may have violated the professional guidelines and ethical codes that require knowledge, using established science in the area of work, and prohibiting distorting evidence and intentionally misstating facts and bias.[26] Luckily, an experienced forensic examiner fully countered Dr. Silberg’s L.S. v. C.T. testimony. The trial court refused to sustain Mother’s latest allegations and ruled against the protective order Mother was requesting.[27]
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[1] See e.g. A.H. Sandoval & Robert Geffner, PAS/PAD versus negative parental influence or toxic denigration, Am. Prof. Soc. of the Abuse of Child. Advisor (Special Issue) (2019 accepted for publication).
[2] In re Adoption of Joshua S., No. D045509, 2005 WL 2885809 (4th Dist. Cal. App. Nov. 3, 2005).
[3] Id. at *2.
[4] Id.
[5] Id. at *16.
[6] Id.
[7] If true, this would potentially violate ethical principles and standards that prohibit bias, intentional misstatement of facts and distorting evidence in a report. Ethical Principles & Standards, supra note 47 and Specialty Guidelines, supra note 48, at 1.01, 9.01 and 11.01.
[8] The reader is reminded that psychologists should not provide opinions of the psychological characteristics of people they haven’t met, and also that when a record review is solely relied on, the psychologist must explain this and its limitations. Ethical Principles & Standards, supra note 47, at 9.01. However, psychologists may conduct a record review, for which “an individual examination is not warranted or necessary,” but they must “explain this and the sources of information on which they based their conclusions or recommendations.” Id. Moreover, “forensic practitioners [must] strive to make clear the impact of such limitations on the reliability and validity of their professional products, opinions, or testimony.” Specialty Guidelines, supra note 48, at 9.03.
[9] In re Adoption of Joshua S., No. D045509, 2005 WL 2885809, at *17 (4th Dist. Cal. App. Nov. 3, 2005).
[10] Tarachanskaya v. Volodarsky, 897 A.2d 884 (Md. Ct. Spec. App. 2006), rev’d on other grounds, 916 A.2d 991 (Md. 2007).
[11] Tarachanskaya, 897 A.2d at 889; Volodarsky v. Tarachanskaya, 916 A.2d 991, 993, 994(Md. 2007)
[12] Tarachanskaya, 897 A.2d at 891.
[13] Ethical Principles & Standards, supra note 47, at C, 5.01, 9.01.
[14] Tarachanskaya, 897 A.2d at 892-894; Volodarsky, 916 A.2d at 1001. Note that in addition to the potential ethical violations for which Dr. Silberg could have been examined previously identified, she also could have been questioned about her duty to minimize foreseeable harm. Ethical Principles & Standards, supra note 47, at 3.04.
[15] L.S. v. C.T., 2009 SD 2, 760 N.W.2d 145 (S.D. 2009).
[16] Id. at ¶ 6, 760 N.W.2d at 147.
[17] Id. at ¶ 9, 760 N.W.2d at 148.
[18] Id.
[19] Id. at ¶ 7, 760 N.W.2d at 147.
[20] Id. at ¶ 20, 760 N.W.2d at 150.
[21] Id. at ¶ 30 n. 8, 760 N.W.2d at 153.
[22] Id. ¶ 13, 760 N.W.2d at 148.
[23] Id. ¶ 13, 760 N.W.2d at 148-49. Note, the record is unclear but Dr. Silberg may have been describing Mother’s responses to Friedrich’s Child Sexual Behavior Inventory, which is not intended to make the diagnosis of CSA by itself. The CSBI is a questionnaire, listing 36 behaviors, which are thought to be associated with sexualization. It asks a parent to “Please circle the number that tells how often your child has shown the following behaviors recently or in the last 6 months.” Each behavior may be rated as: “never”; “once monthly”; “1–3 times monthly” or “at least once weekly.” William N. Friederich et al., Child Sexual Behavior Inventory: Normative and Clinical Comparisons, 4 Psychol. Assessment 303-311 (1992). In high-conflict families, use of the CSBI with one of two polarized parents is subject to serious concerns about validity and reliability. For a discussion of the various types of validity and reliability, see Demosthenes Lorandos & Terence W. Campbell, Benchbook in the Behavioral Sciences: Psychiatry – Psychology – Social Work 359, 373 (2005).
[24] L.S., at ¶ 13; 760 N.W.2d at 149.
[25] Id.
[26] Ethical Principles & Standards, supra note 47, at C, D, 2.03, 2.04, 9.01. Specialty Guidelines, supra note 48, at 2.02.
[27] L.S., at ¶ 33, 760 N.W.2d at 155. See also Ethical Principles & Standards, supra note 47, at C, D, 2.03, 2.04, 5.01. Specialty Guidelines, supra note 48, at 11.01.