7.1 The GAL Shall use Specialized Methods Only when Doing so is Likely to Produce Necessary, Relevant and Useful Information to Evaluate the Forensic Questions in the Case
The GAL must evaluate the merits of using a specialized method and consider the costs (e.g. financial and time) to the parties or to the Court. If the GAL chooses to use a specialized method, the GAL explains the reasons to the parties and counsel, and documents those reasons in the report.
Psychological Testing
Psychological testing is not required in most cases. The GAL shall obtain an order of the court before performing psychological testing unless previously authorized to do so by the court. In each case the GAL must balance likelihood of obtaining relevant and reliable information against the financial costs, the time involved and the potential invasiveness of the testing. Testing may be necessary when the psychological health or functioning of a party or child is directly relevant to the issues the GAL has been appointed to evaluate, or when psychological limitations of the parties make it difficult to obtain relevant information without psychological testing. When considering psychological testing, the GAL should first determine whether the information sought by the testing could be obtained in other ways.
When selecting a particular psychological test, the GAL ensures and is prepared to explain how any chosen test measures factors relevant to the issues before the court. The GAL shall consider and be prepared to articulate for the Court the reliability and validity of any chosen test. (See Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) and Commonwealth v. Lanigan , 413 Mass. 154 (1994). Elements of reliability and validity include: commercial availability of the test or measure including a comprehensive test manual; relevant measures of reliability for the test or measure; relevant measures of validity for the test or measure; appropriateness of use with the examinee (e.g. relevance of race, ethnicity, primary language, reading level); peer reviews of the test or measure; relevant error rates of the test or measure or of components (e.g. index or scale) of the test or measure; method of scoring and interpreting including the published system (e.g. Rorschach Comprehensive System); appropriateness of use in the context for which it is being used.
Sexual Abuse Evaluations
In determining the appropriateness of conducting a sexual abuse evaluation, the GAL shall first consider the nature and extent of the alleged sexual abuse, the context in which the sexual abuse allegations were raised (e.g. custody conflict) and the relationship of potential findings from the sexual abuse evaluation to the questions that the GAL has been appointed to evaluate
As with psychological testing, the GAL takes reasonable steps to ensure the relevance, reliability, and validity of the sexual abuse evaluation procedure the GAL uses. The GAL shall consider and be prepared to articulate for the Court the reliability and validity of the sexual abuse evaluation procedure.
7.2 The GAL shall Only use those Specialized Methods that the GAL is Competent to use in the Forensic Context
The GAL adheres to relevant standards of ethics and conduct including those which govern psychological testing and other specialized methods, and does not practice outside his or her areas of competence. The GAL shall also be competent to use these specialized methods in a forensic context.
Commentary
The GAL or designee does not succumb to pressure by legal actors to overstate or inaccurately represent tests, test interpretations, or the results of sexual abuse evaluations or other specialized methods.
Psychological Testing
The GAL must be qualified to administer and interpret each test instrument used, or ensure that his or her designee is qualified to perform these functions. In addition, the GAL or designee must be familiar with applicable testing standards such as the current American Psychological Association’s Standards for Educational and Psychological Testing. The GAL must also be knowledgeable about psychological testing in the forensic context, and must be able to link the data, hypotheses and interpretations generated by testing to the forensic questions the GAL has been appointed to evaluate, and must be able to articulate to the Court the limitations of the each test used and its role in the comprehensive GAL evaluation.
Sexual Abuse Evaluations
The GAL or designee must be qualified to perform sexual abuse evaluations. Qualifications include: training in child and adolescent psychology; supervised training and practice in conducting sexual abuse evaluations in the forensic context, knowledge of the literature of sexual abuse as it pertains to the family court context and knowledge of the relevant practice guidelines and standards (an example of one well known set of standards is the American Professional Society on the Abuse of Children [APSAC] Standards). In addition, the GAL must be able to link the evaluation data, hypotheses and interpretations generated by the sexual abuse evaluation to the forensic questions before the evaluator, and to articulate to the Court the limitations of the sexual abuse evaluation and its role in the comprehensive GAL evaluation.
7.2.1 If the GAL is not Competent to Perform Psychological Testing or a Sexual Abuse Evaluation, the GAL shall make a Referral to, or Obtain a Consultation with, an Appropriate Clinical Evaluator (henceforth, the “Designee.”).
The GAL seeks a Court order to have an additional professional conduct the specialized evaluation. The GAL takes reasonable steps to ensure the designee is competent to perform psychological testing or a sexual abuse evaluation.
Before making a referral to a designee for psychological testing or a sexual abuse evaluation, a GAL should consider obtaining a consultation from an appropriate professional. The purpose of this consultation is to determine whether or not psychological testing or a sexual abuse evaluation would provide useful information to the Court.
The GAL shall inform the designee that the designee is subject to the requirements of these standards where applicable.
7.2.2 If the GAL is Competent to Perform Psychological Testing or a Sexual Abuse Evaluation, the GAL shall Consider Whether it is Nevertheless Useful or Necessary to have Another Professional Conduct the Testing or Sexual Abuse Evaluation
If the Court has not already clarified whether the GAL or another professional should conduct the testing or sexual abuse evaluation, factors for the GAL to consider in making that determination include: the clinical appropriateness of having the GAL conduct the evaluation. (e.g. an eight year old female alleged sexual abuse victim might feel frightened or uncomfortable with a male evaluator.); the need for consultation from another professional, whether performing the overall GAL evaluation biases, or appears to bias, the GAL’s interpretation of testing/sexual abuse evaluation data.
7.3 The GAL Shall Only Interpret the Results of Psychological Testing and Sexual Abuse evaluations in the Context of Multiple Sources of Data
The GAL should not use psychological testing data as the sole source of information from which to draw conclusions about a party or child. The GAL should consider psychological tests as a means of supporting, disconfirming or generating hypotheses that are to be further investigated and confirmed or disconfirmed through clinical interviews, collateral interviews, document reviews, observations and other available data. If test data conflicts with other sources of data, the GAL is obliged to explain how the GAL understands the discrepancies.
It is particularly important that the GAL be knowledgeable about the ways in which specialty issues (such as Domestic Violence, Child Abuse and Substance Abuse) may contribute to the interpretation of test data.
The results of a sexual abuse evaluation are not, by themselves, determinative of parenting capacity. The sexual abuse evaluation data must be reviewed in the context of the broader forensic question that the GAL has been appointed to evaluate.
7.4 The GAL Avoids Offering Psychiatric Diagnoses, Except when Special Circumstances Require the GAL to do so
The role of the GAL in most Probate and Family Court matters does not require or warrant the formulation of psychiatric diagnoses. The GAL does gather information relevant to the psychological functioning and mental health histories (both directly and through collateral sources) of both parties and the child(ren). The GAL recognizes that a diagnostic label is not determinative of parenting capacity. Rather than making diagnoses, the GAL describes the impact of clinical symptoms or known diagnoses on the functional abilities of a parent or child and the relationship between the parent and child.
Commentary
In the unusual circumstance where formulating a new diagnosis might be appropriate, the GAL considers the potential risks and benefits of making the diagnosis, and the relevance of such a diagnosis to the referral question. The GAL assures that s/he has all the information necessary to make such a diagnosis and is competent to do so. The GAL is particularly sensitive to the potentially pejorative and prejudicial aspects of a diagnosis in the legal context. The GAL provides the rationale for making the diagnosis in the report.