Family Forensic Psychology

Posted by permission of Dr. Thomas O’Connor. Copyright by T. O’Connor.

“My father is your system…I am only what you made me…a reflection of you.” Charles Manson

Although there is some debate over whether such a field exists or what it should be called, family forensic psychology has been defined as “the study of families, members of family units, organizations, and larger systems from a family systems perspective in assessments and interventions regarding interaction with the legal system.” (Grossman & Okun 2003: 166). It should be noted that a family “systems” perspective simply means the presumption that any problem manifested by one member of the family has implications for the rest of the family. To provide more detail, a family systems “perspective” is different from a family systems “theory” because there are many types of family systems theories, most of which utilize a socio-psychoanalytic counseling approach for couples, and unless such activities involve the legal system in some way, they are probably best seen as outside the scope of forensic psychology. For instance, to be a family forensic psychologist, one does NOT necessarily have to subscribe to a precise definition such as that by Davidovich (1990) where a “family systems” theory means a theory that projection and multigenerational transmission processes, level of differentiation and triangles contribute to victim and victimizer role enactment. Many experts currently regard Grossman & Okun (2003) comments as a definitive source on what family forensic psychology consists of, which resonates with the definitional attempts that Bartol & Bartol (2004) have maid: i.e., “a [subspecialty] of legal psychology, having obvious relevance to other subspecialties, and deserving of special subarea attention … much like [a] forensic school specialization in the area of crime and delinquency.”

Also, a fairly good approach to this field is Walker and Shapiro’s (2004) book, which relates family forensic psychology (although they don’t call it that) to specific issues in family law, whereby the field would be defined on the basis of legal concerns over such issues as:fitness to parent, child-rearing, divorce, child custody evaluations, parenting classes, reproductive rights, and assisted reproductive technologies. Family law is a popular topic among those who are attracted to criminal justice, and Prof. Lenore Walker is a leading scholar on feminist forensic psychology in this area. Other, more criminal justice-oriented textbooks (e.g.,Wrightsman et. al. 2002) seem to confine family forensic psychology to that area of work involving child custody disputes, but Wrightsman & Fulero (2005) also attempt to outline six (6) different areas of expertise in this area, which they call roles that reflect what a forensic psychologist might be involved in. The list of possible roles by Wrightsman et. al. follows:

• Marriage counselor — sometimes this person is drawn into the divorce proceedings and given the responsibility of advising the judge about the best custody arrangements for the couple’s children

• Mediator — often the mediator, who is a psychologist, lawyer, or other professional is involved in legal disputes and/or rulings regarding property settlements, divorce proceedings, and child custody arrangements

• Child therapist — sometimes the counselor of a child is called upon to testify as a “fact witness” (not an expert witness who recommends custody arrangements) regarding one parent or the other’s commitment to the child’s mental health

• Court-appointed evaluator — this is the most forensic role, which involves making recommendations to a judge about the level of marital conflict, clinical impressions of alliances, competency of parents, and best custody arrangements

• Expert witness — this is where the psychologist is hired by one side, rather than appointed by the court, and testifies about the effects of divorce, the effects of a certain custody arrangement, and/or the effects on child rearing if one or more of the parents is gay or lesbian

• Applied researcher — this is an independent scholar, usually, who testifies in general terms about what the research says about divorce/custody effects on children, what age groups are most susceptible to influence, and at what age children are competent enough to give adult-like opinions over custody preferences

ISSUES & CONCERNS IN FAMILY FORENSIC PSYCHOLOGY

Family members can sue each other, as they often do, for all kinds of breaches of implied or specified torts, and in most jurisdictions, the interspousal immunity privilege has been removed from tort law. Most people are only familiar with the most common claim for tort relief — a divorce lawsuit. It is common knowledge that in the United States, some 50% of marriages end in divorce, and some 75% of divorcees re-marry. However, divorce is not the only thing that is relevant to family law. There are many important rights other than the right to marry and to divorce. To name a few, there is the right to privacy, to have a home, to be free from government interference in reproduction, to engage in estate or family planning, and to raise children as one’s own.Because there are so many rights, there are many issues and concerns, some of which involve controversies, such as in vitro fertilization, surrogate parenting, prenuptial agreements, last wills and testaments, living wills and euthanasia, adoption, step, and foster parenting, child emancipation, and child custody disputes involvinggay/lesbian parents, immigrant parents, or mixed-race parents.

Driven primarily by the demand for custody dispute recommendations, family forensic psychology is the fastest growing area of forensic psychology. It is also a fairly lucrative area for psychology professionals to work in, since the average fee charged for a child custody evaluation is $3,335 (Bow & Quinnell 2001) and there are literally millions of cases a year available across numerous markets. For its part, the justice system has been slow to respond or adapt. Many judges and lawyers are not well-trained in matters of family law, and although a few jurisdictions may have modern family courts, the legal system in this area is characterized by a haphazard quilt of court systems, including probate, chancery, and orphans’ courts, to name a few. Also, as we shall see, the jurisprudence or legal thinking in this field is easily subject to criticism. For example, tolling of the statute (or waiving the statute of limitations) is quite common in family law (leading to recovered memory debates), and some states (e.g., Georgia and New Jersey) allow jury trials for ongoing claims of psychological injury (called Tevis claims). Family forensic psychology is the area which produces the most ethical problems and complaints to state licensing boards (Kirkland & Kirkland 2001).

In many ways, most of the controversies, issues, and concerns that exist in family forensic psychology can be traced to the ever-changing, societal dynamics of how family and family life are defined or conceptualized in today’s world. It is clear that the institutions of marriage and family are in trouble. The underlying trend is toward unmarried sex and non-marital child-bearing involving patterns of cohabitation, bastardy, teenage pregnancy, and single parenting. It is also clear, despite some difficult causal interpretation, that children are negatively affected by all this (McLanahan & Bumpass 1988; McLanahan & Sandefur 1994), but it is unclear if the negative impacts are due to the increased poverty associated with such trends or a more general decline in parenting skills (McLeod & Shanahan 1993). There is much room for one’s personal bias or ideology to enter into the picture, as for example, in how one would react to this notion — that the traditional institutions of marriage and family have been, for a long time, society’s best way (specifically industrial society’s best way) to preserve wealth, protect children, and ensure a steady, manageable stream of reliable and well-socialized workers.

DECISIONAL COMPETENCY & TESTAMENTARY CAPACITY

Many common family civil disputes involve matters of decisional competency or testamentary capacity. Decisional competency refers to the physical or mental competence to make a critical life decision, and testamentary capacity refers to the competence to make a will. Any family member can raise the issue of decisional competency against any other family member, but it is usually the heirs, or those with a stake in the inheritance, who raise the issue of testamentary capacity. Spouses and family members are more easily disinherited under a trust, rather than a will. Some examples of decisional competency issues are: children who may object to one of their parents obtaining an experimental medical treatment; brothers or sisters who object to the business decisions of how the eldest son runs the family business; and parents who object to their son or daughter joining the military, or joining a religious cult. A specific example of a testamentary capacity issue would be a 90-year old millionaire who cuts his family members out of his will to leave all or most of his wealth to a 23-year old girlfriend he met a year and a half ago.

Forensic psychologists (or any mental health experts, for that matter) are likely to be called in for any of the above examples, and will generally work for the plaintiff(s) who are claiming that the other party is (or was) not of “sound mind” when making the contested decision. If incompetency can be demonstrated to the court (by a preponderance of evidence standard, but clear and convincing evidence standard in some jurisdictions), two things will happen: (1) the court will invalidate the decision that was made, along will any relevant subsequent decisions; and (2) a guardian will be appointed to help the person make future decisions in their best interest. Only a court can declare someone incompetent, but even if the person is NOT declared incompetent, the court may still judge that decisional capacity is impaired because no cognitive reasoning was present (cannot articulate reasons for decision) or that certain relevant factors which were communicated to the person were ignored. In such cases, the court may come back with a ruling not unlike that of contributory negligence where only a portion of the decision is invalidated. In cases where the party who made the decision is deceased, something akin to a psychological autopsy is performed by the forensic psychologist. Lawyers typically advise any of their clients to get a decisional competency evaluation done beforehand, if the client is elderly, has dementia, or likely to make some unusual decision on important matters affecting their family. The most common assessment tool used to measure decisional competency is the Mini-Mental State Examination(MMSE), a highly valid and reliable instrument. If the issue at hand involves competence to make decisions about accepting or rejecting medical treatment, then the most common assessment tool is theMacArthur Competence Assessment Tool (MacCAT-T).

In rare cases, the alleged incompetent party might be comatose, severely incapacitated, in a vegetative state, or in a persistent vegetative state (see the 2005 case of Terri Schiavo). The Supreme Court cases of In re Quinlan (1976) and Cruzan v. Director, Missouri Dept. of Health (1990) established a right to die (e.g., have the respirator turned off, or have the feeding tube removed) if it could be proven that the person wanted it that way (rather than live life as a “vegetable”). The legal precedent is really not all that stringent (the forensic psychologist would typically find somebody they talked to, or investigate and opine about how they might have expressed their wishes), but the issue is so controversial, that many states, like Oregon, jumped on the bandwagon to pass “Death with Dignity” statutes for terminally ill people to tell their doctor to terminate life-saving medication. Nationwide, the practice of having an advance directive, living will, or “Do Not Resuscitate” order is increasingly popular, and it should be noted such directives can specify heroic medical efforts be made. Directives can also be used for psychiatric preferences (in case of psychological impairment) as well as medical preferences.

PRENUPTIAL & ANTENUPTIAL AGREEMENTS

Contracts are sometimes entered into by couples planning to get married, by couples in a common-law marriage, or by couples who decide to cohabitate only. Some states have very liberal common law marriage rules (e.g., Alabama, Colorado, D.C., Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah) where if a couple co-mingle assets and hold themselves out to be married (even for one day), they are considered legally married. There are many reasons why a common-law marriage might occur, ranging from poverty to celebrity status, but one reason might be that the couple is worried about facing social disapproval or ostracism because they are a mixed race or because they are a gay or lesbian couple. Interracial marriage is NOT illegal in any state, but gay or lesbian marriages are illegal in many states. A common-law marriage in a state that allows it usually means that the marriage is carried forward as legitimate if the couple move to another state.

The role of a forensic psychologist may be to determine if a common-law marriage does, in fact, truly exist. However, like with all marriages, the couple may have made up a written or oral plan for expectations about loyalty, communication, money, and sexual relations. This written or oral plan is called a “prenuptial agreement,” and it is legally binding if agreed upon by both parties while not under duress. An antenuptial, or postnuptial, agreement generally refers to any settlement of retirement benefits or division of property in case of death. It is a much more common task of a forensic psychologist in such situations to conduct a psychological evaluation for duress. Other family members frequently challenge such agreements, on grounds that the signer was a victim of fraud, duress, undue influence, misrepresentation, and/or the withholding of information. These are serious allegations, and it is not uncommon for a criminal trial to occur alongside a civil action.

An evaluation for duress involves an inquiry into the mental state of the signer, and the question is not whether any psychological capacity issues are present, but whether or not the signer was susceptible to duress or had a pattern of making bad judgments or decisions when under threat or duress, otherwise, being competent is every way. This is an unusual kind of forensic examination, but must meet the preponderance of the evidence standard. Some things fairly automatically meet the standard, such as the threat or presence of any domestic violence, or the existence of any sort of blackmail or extortion. Some states also have rigid time limits regulating how early a prenuptial agreement can be made prior to marriage. [At this point, it should be reminded that nothing on this page constitutes legal advice.]

DIVORCE & CHILD CUSTODY EVALUATIONS

Marriages can be legally dissolved in a number of ways, e.g., death, annulment, divorce, or voided by the courts. An annulment or voiding means that the marriage never happened, and usually there can be no contesting of any property division, often even in “community property” states. An annulment requires proof that a defect existed in the contract formation, and voiding, in general, refers to people (e.g. illegal immigrants, underage, etc.) who were forbidden to marry in the first place. Sometimes, a forensic psychologist might be involved with mental capacity assessment in an annulment case, but far more common is their involvement in cases of death and divorce. Divorces can get messy in a variety of ways, and even in cases of death, other relatives (e.g., grandparents, etc.) may step in and claim custody over any grandchildren. Sometimes, a child abduction occurs where one of the divorced parents (or a relative) kidnaps the child or children. In fact, some 350,000 parental abductions occur every year, usually by the father who tries to disappear without a trace, whereas the “protective mom” pattern is to put the child up someplace private and safe to defy authorities (Lopez 1998). Further, custody disputes can involve international law, as did the year 2000 case of Elian Gonzalez who had to be returned to Cuba by the U.S. Government.

The Effects of Divorce on Children
Contrary to the “children are resilient” myth, children of divorce often grow up angry, worried, underachieving, and self-deprecating (Wallerstein & Blakeslee 1989). Only 10% of children experience any kind of long-term psychological relief that their parents divorced. Serious delinquency, in the nature of property crime and/or public order offenses (such as drugs, alcohol, and promiscuity) often results. Wallerstein & Blakeslee (1989) also report “sleeper effects” for divorce, although the criminological literature on that is strongest in cases of adoption. There is extensive variation by age and ethnicity. If divorce occurs when the children are teenagers (12 to 15 years of age), they tend to react in two different ways: by attempting to avoid growing up; or by attempting to “speed through” adolescence. In terms of which children are better off, research suggests that children between 5 and 12 years of age may do the best and children younger and older may have more difficulties (Amato 1993). Most of the detrimental psychological effects last about three decades, but counseling, if obtained, seems to diminish many detrimental symptoms. Also, science has been unable to determine why some children turn out OK under the same dysfunctional family circumstances that have produced detrimental effects in other children.

Divorce has devastating financial effects. Almost 50% of the parents with children that are going through a divorce move into poverty after the divorce. Unlimited alimony is a thing of the past since no-fault divorce laws were passed in the 1970s, and although there are no good statistics on it, the phenomenon of “deadbeat dads” (who either can’t or won’t pay child support) is quite common. By contrast, the financial implications for men are often the opposite, as a not uncommon pattern involves a hard-working wife who helps the husband receive training or education for a new career, and then finds herself “dumped” while the husband pursues his new career (often with a new girlfriend or wife).

The Effects of Custody on Children
The reader needs to know that the law differentiates betweenlegal custody and physical custody, the former referring to the right to make major decisions in the child’s life, and the latter referring to where the child lives. Sole custody is the only kind that includes both legal and physical custody, and where the other parent only has a right to visitation. Joint, or shared, custody usually means a sharing of legal custody, and where physical custody is not equally shared. Divided custody occurs when more than one child is involved, and the parents split who get which child. The courts have utilized a number of different standards for determining child custody. The following is a short list:

• tender years doctrine — a turn-of-the-century (circa 1900) doctrine that was used for seventy years to give custody to mothers, unless strong countervailing factors prevailed

• best interests of the child — a 1970 doctrine where the child is seen as a distinct person, with their own wishes and a certain number of individual rights

• least detrimental alternative — a standard suggested by Krauss & Sales (2000) where psychology, at best, can only help in identifying which arrangement would do the least harm

• best interests of child in relation to the family — a standard suggested by Grossman & Okun (2003) which helps determine the best interests of everyone involved

In practice, judges actually do whatever they want to do (within limits of theUniform Marriage Laws), or in their own words, “as justice requires” (Sales et. al. 1992). They are not bound to apply any particular legal standard, follow any forensic recommendations, or consider the social science research. Judges often decide on moral grounds, and rarely (33% of the time) ask the child for their preference even when a forensic psychologist says the child is competent enough to express an “emancipated” opinion(Wrightsman & Fulero 2005). Reviews of the literature on child custody evaluations (e.g. Ackerman & Ackerman 1997; Bow & Quinnell 2001) have discovered the greater acceptance of psychological tests in recent years, although clinicians trained in some fields (e.g., social work) continue to be champions of the home visit methodology. Horvath et. al (2002) found considerable variation in how assessments are done, but the bottom line is that 94% of evaluations contain a recommendation over which parent should gain custody, and judges agree (or only engage in minor modification) with the forensic recommendation about 64% of the time (Bow & Quinnell 2001).

It is commonly assumed, from a lay perspective, that joint custody is the best arrangement, but the research evidence is far from conclusive. Many parents, for financial reasons, prefer to seek joint custody because the expenses will be 50-50, and expenses (in most states) are worked out quite differently (often to the financial detriment of one party) if the arrangement is other than 50-50. The research suggests that boys, rather than girls, tend to do better under joint custody (Wrightsman & Fulero 2005), and it doesn’t take a research scientist to tell that a continuing, conflict-ridden joint custody arrangement is exceedingly bad. Often, the child feels like a “yo-yo” being pulled in and out of different residences, and there are other dysfunctional things that joint custody parents often do, like sparing no expense to “spoil” the child during their periods of custody. The general consensus of the literature is that there is no one “best” custody arrangement. It depends on age, developmental and social needs, gender of the child, the parenting style of each parent, and how well each parent gets along and puts the child’s needs ahead of their own. In many cases, limited joint custody or single-parent custody with visitation may be better, and according to Wrightsman et. al. (2002), are actually the two most frequent recommendations by forensic psychologists.

VISITATION RISK ASSESSMENTS

Visitation recommendations are normally included in custody evaluations, but sometimes a challenge or request for change (after a typical two-year waiting period) sparks the need for a new assessment or evaluation. Often, such challenges involve an accusation that one of the parents is unfit or alienating the child from the other parent.Parental fitness evaluations are notoriously messy. Sometimes they involve: (a) racial issues where it must be determined if and how the child of a mixed marriage would experience social stigmatization; and/or (b) sexuality issues where it must be determined if the homosexual orientation of a parent will have any untoward effects on how the child will grow up. Even though there is no social science research evidence to support a racial stigmatization effect (as long as the child is allowed to freely learn about their racial identity), judges are in the habit of placing such children with whichever parent most closely resembles the child in terms of skin color (Sales et. al. 1992). Also, while the APA and numerous other organizations have filed amicus curiae briefs arguing that parental sexual orientation has no detrimental effects, judges are still in the habit of using gay or lesbian orientation as the basis for “unfit parent” declarations, at least in the 40 states which don’t specifically outlaw (by statute) the taking of such factors into consideration.

The process of evaluating parental fitness needs to be done on the basis of parenting skills, not on the basis of lifestyle nor on the basis of personality assessment. If the alleged “unfit” parent has a mental disorder, then the psychologist should inquire further into exactly how that disorder affects the ability to parent. Likewise, consideration of health, financial status, and reputation in the community factors may or may not be important, but should be considered in an atmosphere of fairness, not in some biased fashion where, for example, the wealthiest parent should get custody. There are no “perfect” ways to do unbiased evaluations, however, despite several manuals on the subject which argue for “comprehensive” procedures involving interviews and observation of each parent’s interaction with the child (under naturalistic and novel conditions). It is often the case that evaluations and assessments in this area fail to meet the Daubert standard because they have no known validity or reliability. For example, the author of the NIMS Observation Checklist (Nims 1998) readily admits that any norms for the instrument come from his value system. Other instruments commonly used have been found unacceptable as good science in most courts, such as the Rorschach Inkblot Technique (see critique by Wood et. al. 2003). Nevertheless, some devices have shown some promise in being helpful in making child custody and visitation evaluations. A selected list is as follows:

• the Ackerman-Schoendorf Scales for Parental Evaluation of Custody (ASPECT) — a series of 68 open-ended questions which focus on the ability of a parent to recognize the present and future needs of a child; 93% of the time, it is consistent with any judge’s decision

• the Parent-Child Relationship Inventory (PCRI) — a questionnaire consisting of 78 Likert-scale items focusing upon disciplinary style, feelings of competence, self esteem, and social support; contains two validity scales for lying and social desirability

• the Bricklin Scales — devised by Barry Bricklin Associates as a battery of scales assessing things like closeness, supportiveness, and follow-up consistency

• the Parenting Stress Index — exists in long-form (101-item) and short-form (36-item) for such concepts as adaptability, mood, demandingness, and hypersensitivity

• the Parenting Satisfaction Scale — 45 self-report items measuring one’s sense of satisfaction with their performace as a parent

WHEN ABUSE OR NEGLECT OCCURS

Several states have laws which discourage awarding custody (or visitation) to anyone with a history of spouse-battering. However, custody and visitation decisions have to made in such cases, and they can become extraordinarily complicated if, along with spouse-battering, any allegation of child abuse or neglect is made. This is not the place to go into the extensive justice network of Child Protective Services, but suffice it to say that it is not uncommon for messy divorce and custody cases to have seen the child removed from the home (either parent’s home), and placed in a foster home or shelter until the allegations can be sorted out. It should be noted that the Child Protective Service agencies of each state are usually under a mandate to pursue family reunification if at all possible. This means that their working philosophy is to resolve any temporary, or foster care solution with something (anything) which gets the child back into their original family-of-origin. This normally puts pressure on the civil court handling the divorce or custody issue, but it can be resolved alternatively via “kinship care” which puts the child up with a grandparent or other relative, frequently leading to adoption. Sometimes, a state offers financial assistance to such relatives to promote the continuance of family ties, and international adoption is not out of the question if the nearest relative is overseas. However, the problem remains over what to do about the abusive parents.

Most states have a system of intervention programs for parents who are accused of abusing their children (or each other), called “parenting classes” in the former instance, and “battering classes” in the latter instance. There is a 60% overlap between child abuse and spouse abuse (Walker & Shapiro 2004). Substance abuse is also frequently a problem here, as is the not-so-infrequent mental retardation of one of the parents or the child. The way it works in most states is a step-down approach to therapy like the following:

• parenting classes for those accused of abuse — these are generally, low-cost intervention programs that review the dangers of alcohol, the importance of a wellness approach to health, stress management, and provide general education about what a child’s developmental and social needs are

• parenting classes for those where there has been a “finding” of abuse — these are generally, high-cost intervention programs that are court-ordered, and do all the above plus contain didactic (hands-on) parenting education as well as opportunities for supervised therapeutic visitation, then supervised visitation, the finally short periods of unsupervised visitation with monitored pick and return of children

A step-down therapeutic approach is one which makes certain assumptions about the population being treated. Specifically, it assumes that perhaps half of the clients don’t need treatment; and it further assumes that perhaps half of the clients won’t benefit from treatment anyway. It also generally refers to intensive inpatient programs that only last 2-3 weeks and are then replaced by more convenient outpatient programs; or to 3-hour, one-night outpatient programs which are then reduced to 1-hour programs. In practice, a variety of programs exist, and there is even more variety in the counseling modalities offered to children.

REPRODUCTIVE ISSUES

An emerging area of family forensic psychology involves reproductive issues. For example, sometimes the mental state of a woman (or wife) is called into question either because they plan to have an abortion or plan to carry an unplanned pregnancy to term. This is a highly controversial area where one can find numerous opinions. Among all the Internet resources, the Center for Reproductive Rights contains much information about the movement for contraceptive equity, and only the briefest of reviews shall be given here. Many forensic psychologists are interested in these matters, and for others who are so inclined, some of the main issues include: (1) that Medicaid and insurance companies will pay for Viagra for men, but will not pay for birth control for women; (2) several states, in the wake of Roe v. Wade (1973), have created stringent procedures for any woman seeking an abortion after the first trimester; (3) the banned vacuum aspiration method known as partial birth abortion is considered safer than childbirth when abortion is needed in latter trimesters and is for the woman’s health; (4) several states have “bizarre” notification (and sometimes spousal permission) laws requiring a women to find and inform the fetus’s biological father about her abortion plans (even if the father disappeared or is a rapist serving time for raping her); (5) the banned use of fetal “stem cell” tissue from abortions may help produce a cure for various debilitating diseases; (6) an adolescent’s right to contraception is severely limited in many places with requirements that they either undergo some educational program, and for an abortion, adolescents must obtain their parent’s consent in 16 states and notify their parents in 14 others.

Regarding adolescent abortions, what are called “judicial by-pass” procedures exist in some states. These are generally private hearings in court for when an adolescent is unable or unwilling to get their parent’s permission or notify them. Court-ordered forensic psychologists are frequently involved in such cases, and they testify about the cognitive and emotional ability of such adolescents to make competent decisions. There are no numbers on how frequently these by-pass procedures take place, but it is suspected that many of them involve cases of intrafamilial sexual abuse and/or incest. Severe criminal penalties exist for helping an adolescent seek an abortion, especially if it involves travel across state lines. A related point is that it was assumed for many years that women who had an abortion would have psychological problems later on, and this was called “Post Abortion Syndrome.” It turns out that there never was any empirical research done on this, and there is currently no evidence that such a syndrome exists.

Another issue that is attracting the attention of forensic psychologists deals with the problems of pregnant women (many of whom are prostitutes or immigrants) where: (1) the fetus is known to have a genetic defect; (2) there is a certain possibility of HIV/AIDS transmission, and (3) the baby is most likely to be born addicted or brain-damaged due to the mother’s substance abuse. The law in such cases almost always seeks to protect the infant, but in many cases, it is not in the infant’s best interests, nor is it in the mother’s best interest for her to be incarcerated under criminal charges (as is often the case) while authorities wait for the baby to be born, and then try to find foster parents who are willing to exert extra-special care for these kinds of babies who will constantly cry, not respond to being held, and eventually die or grow up to be profoundly mentally retarded.

Finally, there is the issue of alternative fertilization and surrogate mothering which often boils down to a “Who Owns the Embryo” debate. The standing law on the subject is that custody goes to the parent who is most seeking to avoid the traditional means of procreation. Here, forensic psychologists are often called upon to help determine the wishes or fate of, say: (1) a deceased sperm donor who has left a deposit at a sperm bank; (2) cyro-preserved, fertilized eggs left behind by a couple who died or have broken up; (3) a surrogate mother who wants to keep the baby, even though she was artificially inseminated by the sperm and egg of an infertile couple (in vitro fertilization); (4) a man or woman who wants to clone themself via some method of genetically altered in-vitro fertilization or a test tube; or (5) a man who wants to have a synthetic uterus built into his abdominal cavity so a fertilized embryo can be implanted. These, and other bioethical controversies, will probably consume much of the future attention of forensic psychologists.

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Online Resources