Do Court-Appointed Experts need Counseling? A qualitative study of four experts' evaluations and one court decision on child custody cases. Valentyna Aamot Master thesis in Counseling Trondheim, May 2015 Aamot: Do Court Appointed Experts need Counseling? ii Do Court-Appointed Experts need Counseling? A qualitative study of four experts' evaluations and one court decision on child custody cases. Valentyna Aamot Master thesis in Counseling Trondheim, May 2015 Supervisor: Jonathan Reams Aamot: Do Court Appointed Experts need Counseling? iii Foreword I guess this research started long ago with a rhetorical 'why?' and a wish to someday answer it. As I learned to observe, I saw my experience repeats itself in everyone else. I saw that people misunderstand and are being misunderstood, that reality depends on eyes that see and that there are situations when you are at mercy of others interpretations of your reality. When studying counselling, my fellow student told me a story. It was about her friend, a single mother with two children, who had been through a child custody case. Before the court hearings, she received the expert's evaluation on her case. After having read it, she set her house on fire, burning herself and her children alive. My only comment on the mother's reaction is that I do believe this tragedy could have been avoided. In a way, this master thesis is an attempt to answer how to do that. I want to dedicate this piece of writing to those parents who are in a situation with no place to go and no help to get. I dedicate it as well to the children, who live with the consequences of experts' mistakes. This master thesis would have looked different today had it not be for my supervisor Jonathan Reams. Thank you for expressing your faith in the importance of the project and for giving me valuable recommendations during the process. This master thesis has been accomplished because you challenged me. I am thankful to Thomas Jordan, first of all for the articles, which both inspired me and provided a system to my at that time chaotic ideas about the project. Thank you as well for sharing information in your mails and for answering my questions on Skype. I also want to thank my children, Magdalena and Marco. Without you two, the very idea of writing on this topic would never have occurred to me. I feel as well grateful for my life circumstances, and I am grateful for having possibility to acquire this education. Together, they brought me to where I am now; together they made this project possible. At the end, I thank my self. For belief, resilience and strength. For ability to live, laugh and write in the face of defeat and uncertainty. For me, this thesis is more than an accomplished obligatory activity – it is saying something important in a voice that can be heard. Aamot: Do Court Appointed Experts need Counseling? iv Abstract The master thesis you are reading now is a qualitative research on meaning-making of experts in child custody cases. My goal was to get insight into these experts' reasoning and to figure out if there is a connection between the degree of reasoning complexity and quality of their evaluations. To answer this question, I chose document analysis as a method. The documents constitute four experts reports and one court decision. The documents were chosen randomly, and the source of data was the Internet. The analysis was conducted within frameworks built on adult consciousness/awareness developmental theories. Some coding criteria were predetermined, others derived from the models description. One of the important findings of the study is that experts show a striking consistency in their thinking. That is, they demonstrate a certain level of understanding complexity throughout many different domains. Further, they evaluate phenomena not from the standpoint of their expertise competency, but from their level of awareness. The stronger their awareness, the more understanding for complexity they show. This understanding of complexity displays itself in their elaboration on task complexity, context, others, self and different perspectives. Accordingly, this kind of elaboration results in better quality of their conclusions. Experts with stronger awareness issued evaluations that were humane with no damaging consequences for the children, and often their conclusions were win-win solutions. These findings show that there is a gap in experts’ competency today, and that this gap cannot be filled by providing more expertise. Another kind of education is needed, which should aim at developing experts understanding of complexity, importance of cautiousness and awareness of different processes and states that can influence both others and their own interpretation of facts. As I see it, these findings have a potential to transform the conventional view on experts role in the court system, as well as contribute to more effective quality assurance in child custody evaluations. Aamot: Do Court Appointed Experts need Counseling? v Table of Contents Foreword ....................................................................................................................................... iii Abstract ......................................................................................................................................... iv 1. Introduction ................................................................................................................................ 1 1.1 Research Question ................................................................................................................ 2 1.2 About Experts in Child Custody Cases ................................................................................ 2 1.3 Experts' Competency as Depicted in Mass Media ............................................................... 3 1.4 Complexity of Child Custody Cases .................................................................................... 4 1.5 Disposition ........................................................................................................................... 4 2. Theoretical Framework .............................................................................................................. 6 2.1 Literature Review on the Topic ............................................................................................ 6 2.2 Cognitive Errors ................................................................................................................... 7 2.3 The Model of Hierarchical Complexity ............................................................................... 8 2.4 Four Forms of Reasoning Model ......................................................................................... 9 2.5 Dialectical Reasoning ......................................................................................................... 10 2.6 Five Domains of Awareness Model .................................................................................... 11 3 Methodological Perspectives ..................................................................................................... 12 3.1 Reasoning for the Choice of the Method............................................................................ 12 3.2 Philosophical Grounding for the Research ......................................................................... 13 3.3 Procedure of Document Analysis ....................................................................................... 13 3.4 Assurance of Quality .......................................................................................................... 15 3.5 Ethical Considerations ........................................................................................................ 17 4. Presentation of Findings ........................................................................................................... 18 4.1 Task Complexity Awareness ............................................................................................... 18 4.2 Context Awareness ............................................................................................................. 28 4.3 Stakeholder Awareness ....................................................................................................... 31 4.4 Self-Awareness ................................................................................................................... 33 4.5 Perspective-Awareness ....................................................................................................... 35 4.6 Analysis of a Court's Decision, Using the Five Levels of Awareness Framework............. 39 5 Discussion ................................................................................................................................. 43 5.1 Summing up of the Findings .............................................................................................. 43 5.2 Commenting on the Findings ............................................................................................. 44 5.3 Discussing Implications of the Findings ............................................................................ 46 6 Conclusion ................................................................................................................................. 49 6.1 Answering the Research Question ...................................................................................... 49 6.2 Project's Limitations ........................................................................................................... 49 6.3 Taking the Research a Step Further .................................................................................... 50 6.4 Implications and Recommendations .................................................................................. 51 7 References ................................................................................................................................. 56 Aamot: Do Court Appointed Experts need Counseling? vi 8 Attachments ............................................................................................................................... 61 8.1 Experts Report 1 ................................................................................................................. 62 8.2 Expert Report 2 .................................................................................................................. 83 8.3 Expert Report 3 .................................................................................................................. 93 8.4 Expert Report 4 .................................................................................................................. 97 8.5 Court's Decision ............................................................................................................... 111 8.6 Coding criteria for Five Types of Awareness in Interview Transcripts. ........................... 119 1. Introduction I felt they were all saying something true, but that none of them had it entirely figured out... It slowly dawned on me that these people weren't all addressing the same level of consciousness. Ken Wilber cited in Schwartz, 1995, p. 351 From the point of view of the matters at hand, it is also worth noting that however harsh their interpretation might sound (or, for that matter, actually be), theirs was a staunchly and explicitly moral formulation. It was not an amoral position they adopted, or an immoral one. They spoke their point of view with a righteous sense that indeed we were touching here on solemn matters of right and wrong, and, as any moralist might, they were championing the right as they saw it. Robert Kegan, “The Evolving Self” 1982, p. 48 My interest in the topic derives foremost from personal experience with experts. By experts I mean court ordered professionals, who get appointed by judges to make evaluations of evidence in child custody cases. As both my experience and information on the Internet shows, different experts can evaluate one and the same set of evidence in different, sometimes contradictory ways. Searching on the Internet and reviewing the literature gave me a clear impression that the topic is a burning issue and that parents, judges, and other experts all voice their dissatisfaction about the competency of child custody evaluators. The range and scope of these opinions made me speculate whether there can be some solid grounds to such reactions. It brought me to questions about validity, objectivity and adequacy of these evaluations, as well as to questions about factors that either ensure or impair this. Studying counseling, I learned about patterns of meaning making and how individuals interpret reality from their stages of consciousness. That added to my curiosity and wishes to investigate the phenomena on scientific grounds. It also gave me tools as well as some inspiring ideas about how in practice I could proceed with my intent. Regarding experts' elaboration and reasoning as a gateway to their consciousness, I began with the assumption that different stages of meaning making mirror the way experts make sense of cases information, others and themselves. However, the analysis is not about classifying experts into higher and lower ranks. As Kegan puts it (1982, p. 291) regard for the integrity and individuality of each person's made meaning leads to the conviction that one way of making meaning is no better than another. Nevertheless, the problem arises, when one meaning-making is proclaimed to be better than another, not by their validity, but because of other factors. That is why when it comes to choosing among different meanings attributed to the same reality, hierarchical consciousness Aamot: Do Court Appointed Experts need Counseling? 2 models, as I argue here, can provide grounds to rely on. Or as Kegan (Ibid, p. 292) puts it, it is not about judging a person's meaning-making activity, but, in an indirect way judging a person's made meaning. And though persons cannot be more or less good than each other, stages of evolutionary balances can be, as stages have a qualified validity. It is precisely this notion of qualified validity, that I will try to find out about, analyzing the experts' ways of reasoning. And it is the same concept of qualified validity or lack of it that is central when reflecting on the degree of quality these expert evaluations have. Finally, I want to make it clear that this thesis is built on questioning of experts’ competency. To state otherwise would mean hiding behind researcher's mask and not being interested in people who suffer from the issue. To try to answer this question in an honest way, I believe, can contribute to reducing these sufferings. 1.1 Research Question The research question is: Do levels of reasoning complexity, as displayed by experts in child custody evaluations, have an impact on the quality of such evaluations? To answer this question, I will need first to find out which levels of complexity/awareness the experts in analyzed reports are reasoning from. The theories which are also used here as methodological frameworks, provide a tool to analyze those parts of reports where experts elaborate on the evidence. The experts’ tendency to consider complexity in their elaboration, or failing to do so, will inevitably have an impact on the quality of their evaluations. It is therefore argued here that the qualified validity of experts’ reports will correlate with experts' levels of awareness. The research in addition is not limited to results about the analyzed documents, but goes beyond it, claiming that the findings are transferable and generalizable. 1.2 About Experts in Child Custody Cases Court-ordered experts or evaluators in child custody cases are professionals that possess competencies relevant for the investigation. They can be appointed by the Court either according to Child’s law (Barneloven) §61.1 or §61.3 (NOU, 1977). When appointed according to §61.1, expert's task is to mediate between parties and help them to reach some agreement in their dispute. An expert can also give advice to the judge at this stage, in case parties disagree and the judge's preliminary decision is needed (Dalseide, 2004, p. 201). When appointed after §61.3, the experts' assignment is different. This appointment takes place if the mediating process did not result in an agreement, and the case proceeds further. Appointed according to this paragraph, an expert's mandate becomes to collect relevant information on the case, evaluate it and come with a conclusion. The expert will usually investigate both parties' parental skills, the child's degree of attachment to each of the parents, living conditions and other Aamot: Do Court Appointed Experts need Counseling? 3 circumstances for the Court to consider. The expert will usually talk to the parties and sometimes to the children, with school, kindergarten and others. The purpose of such an investigation is to elucidate the case and to submit an advice to the Court. There are no formal requirements about the competency such experts should possess, but it is usual to engage psychologists or child psychiatrists to investigate child custody cases (Ot. prp., 2002-03, p. 89). When appointing an expert, it is also assumed that s/he will undertake an independent self-evaluation of her/his own competency in relation to the questions one is expected to submit an opinion on (Kjølberg, 2006, p. 215). It has become a common practice for judges to expect that an experts’ investigation should result in a more or less coherent conclusion (Koch, 2000). As a rule, experts follow the judge's mandate despite the fact that they have an independent responsibility to limit themselves to those evaluations and conclusions that are related to their field (Ot. prp., 2002-03, p. 44). It means that experts can choose not to conclude. According to Koch (2000), judges followed experts' advice in 70% of cases. 1.3 Experts' Competency as Depicted in Mass Media Experts' competency is a hotly debated issue in public discussion. Journalist Kåre Willoch (VG, 09.02.2004) raises a question if judges possess a sufficient competency to be able to understand that they should be more skeptical towards experts in the court. A political editor, Harald Stanghelle (Aftenposten, 13.01.2006), points out that there are too many miscarriages of justice that have been disclosed and are being constructed on predictable prejudice, human mistakes, and arrogant expertise. Ole Texmo expresses her opinion in Dagbladet, that there are no standards about how to ensure the quality for experts' evaluations in child cases (Texmo, 2013). She says that experts lack education in critical investigation methods to map information and sort out facts from interpretations (Ibid). Lawyers point out that it is symptomatic that experts fail to elaborate on the consequences of their recommendations, base their evaluations on very limited observations, and fail to discuss alternative interpretations or other hypothesis (Aftenposten, 2006, p. 5; Nordhelle, 2010). Also, experts criticize their colleagues’ reports for lack of coherence between observations, elaborations and conclusion, for being influenced by personal attitudes and values as well as admitting their own mistakes (Helmikstøl, 2013, pp. 7, 9, 20). Anonymous users of discussion forums tell about experts that describe parents as mentally disturbed, come with humiliating comments, lacking elaboration in their evaluations, concluding on opinions and assumptions with no references to facts or sources (Anonym users 1, 2, 3, 4). The leader of the Barnesakkyndig kommission makes it clear that there is a need for expert competency different from one existing today (Helmikstøl, 2013, p. 12). Aamot: Do Court Appointed Experts need Counseling? 4 1.4 Complexity of Child Custody Cases According to an official government website, child custody cases are defined as cases about parenting rights, visitation rights and which of the parents the child should live with (Barnefordelingssaker1). The decisive judicial criterion in child custody cases is 'the best interest of the child' principle. This principle includes consideration of many factors, and psychological insight combined with knowledge about children plays a central role. Capacity to empathize and to constructively solve conflicts is also required in treating such cases. In court procedure, 'the best interest of the child' as a concept is very vaguely defined and both the application of judicial norm and evaluation of the factual sides are discretionary, and the decision makers' own values and views can play a big role. In addition, decisions in child custody cases must contain a hypothetical prognosis for many years ahead (Ibid.). Thus we can see that child custody cases all have to do with complexity. As lawyers point out, the notion of what exactly 'the best interest of the child' is in practice very complex (Advokatfirmaet Saar2). Further, there is a discussion about a suggestion from Barneombudet to establish a separate court for child cases, and it is being referred to judges and lawyers acknowledging that because of complex character of child cases, their hearings require a special competency (Johansen, 2010). “Complexity of Child custody cases has increased”, adds Sør- Trondelag Tingrett judge Berit. S. Solseth, supporting this point (NTB, 2012). Philip M. Stahl (1999) in his book Complex Issues in Child Custody Evaluations makes it clear that evaluations in such cases must be carried out with awareness of their complexity. He writes that the task of child custody evaluations has become increasingly complicated, and courts are looking more frequently to the child custody evaluator to help in understanding and providing recommendations for families of divorce (Ibid.). The book is an attempt of a practical guide to court appointed experts to understand the complexity of child custody cases. Stahl expresses concerns over issues such as: oversimplification and misinterpretation of issues, polarization, lack of proper training, arrogance of experts and lack of appropriate knowledge in licensing boards. He concludes that as we come to understand these complex issues in a more thorough way, the task for the courts and evaluators can grow easier over time (Ibid, p. xv). 1.5 Disposition The main part of the thesis will start with the theory chapter. Its first section is a literature review, where I will make the reader acquainted with articles and publication about experts in child custody cases. Then I will proceed to a description of relevant theories, which include both cognitive errors and developmental models. Key theoretical models include five domains of 1 http://omega.regjeringen.no/ 2 http://skilsmisser.no/