INTRODUCING PERSPECTIVES IN FAMILY LAW AND SOCIAL SCIENCE RESEARCH

FAMILY COURT REVIEW, Vol. 45 No. 1, January 2007 15–21© 2007 Association of Family and Conciliation Courts

Blackwell Publishing IncMalden, USAFCREFamily Court Review1531-2445© Association of Family and Conciliation Courts, 2007January 2007451Original Article

Johnston/INTRODUCING PERSPECTIVES IN FAMILY LAW and SOCIAL SCIENCE RESEARCHFAMILY COURT REVIEW

PERSPECTIVES ON FAMILY LAW & SOCIAL SCIENCE RESEARCH

INTRODUCING PERSPECTIVES IN FAMILY LAW AND SOCIAL SCIENCE RESEARCH

Janet R. Johnston

This article provides an editorial introduction to the following three related articles on the growing use and influ-ence of social science research in family law. It first considers why this has become problematic and identifiessome common strategies used by advocates, sometimes under the guise of scholarship, to destroy the standingof research findings contrary to their ideological or political position. Then it discusses briefly the remediesproposed to mitigate these kinds of problems within the following three articles.

Keywords:

social science research

;

scholarship

;

misuse of data

;

advocacy

;

policy

;

family law

;

child custody

The theme addressed in this issue, reflected in three related articles and in this editorialintroduction, arises from the growing use and influence of social science research in familylaw matters with corresponding concerns about its misuse and abuse. It developed out of aplenary session of the 42nd Annual Conference of AFCC in Seattle (2005) where three ofthe five authors presented papers and received a tremendous response from the audienceendorsing the need to address the following kinds of questions: What standards should beused to evaluate the quality and relevance of social science knowledge as it travels acrossthe disciplinary divide—from the social sciences to family law? What procedures shouldbe used by social researchers and mental health professionals to communicate their findingsto the court and to policy makers competently, responsibly, and ethically? What protectionsare available to judges, attorneys, and others who need to filter out unreliable data and inex-pert witnesses? Before looking at the authors’ responses to these questions, it is importantto consider why the use of social research in family law has become so problematic and inwhat ways the abuse is manifest.

Problems with the appropriate use of social science data derive, in part, from the multi-disciplinary nature of the family court context, made up of the legal system and its alliedprofessionals (primarily judges, attorneys, court administrators, and forensic specialists)and mental health professionals (mediators, counselors, and custody evaluators). These pro-fessionals come with different backgrounds, in terms of their education and training, andhave different goals and priorities. They have learned to think differently and to communicatein their own language or professional jargon. Governed by their own logic and their ownbody of ethics, these diverse professionals are in pursuit of relevant facts (data) in order toensure that the family court will arrive at wise and just decisions for their client—whethera parent, child, or family as a whole.

Correspondence: [email protected]

16 FAMILY COURT REVIEW

An example: when a psychiatrist testifies in court, the logic employed is the discourseof the scientific method and the ethical constraints are to do no harm, whereas for thelawyers the logical argument is governed by the rules of evidence and the ethical mandateof zealous advocacy for their clients. What is relevant data to consider from the psychia-trist’s point of view may be the emotionally destructive climate for the child when highlyconflicted separating parents reside in the same house, whereas the lawyers appear obliviousto those facts and are focused on the application and interpretation of laws and legal precedentas to which parent should vacate the family home and have custody of the children. Itshould be of no surprise that, when social science information is introduced in this context,it can be communicated in one professional’s language but is subject to reinterpretation,distortion, or dismissal as irrelevant by another and so gets lost in the translation.

The distortions and misuse of social science data in family law matters also derive, inpart, from the highly political nature of the substantive issues raised in this field—ones thatfuel the gender wars between men and women, fathers and mothers. Family court mattersconstitute an emotional and ideological cauldron where the most private and personal con-flicts—within marriage and family—are seething and where very public and political strugglestake place—over issues like domestic violence, child abuse and neglect, parental abduction,joint custody and access schedules, parent relocation, same-sex marriage and parenting,adoption, and grandparents’ rights, to name a few. This makes family law a hive of activityfor policy makers, lobbyists, legislators, and administrators who are busy crafting new lawsand procedures and modifying old ones. Alternatively, established laws and precedents arereinterpreted in the slow evolution (or convolution) of common law in appellant andsupreme court decisions. Moreover, despite efforts to make contemporary family courts morecollaborative, family law matters are situated in legal institutions that are historically andtraditionally adversarial. In this highly political, adversarial context, where goals and agen-das collide, advocacy for one’s viewpoint is the norm and so it should be no surprise that,when social science knowledge is brought into this arena to shed light on what to do abouta problem, there is steadfast pressure to subject and subvert it to advocacy ends.

Moreover, political activists need to send clear, simple, unambiguous messages—black-and-white truths, one-line shockers or sound bites—if they are going to get the attention ofpolicy makers and the public in order to effect change. There is no room for the ifs and buts,the inherent tentativeness, complexity, or nuance that characterizes all social science knowl-edge because it would weaken their clarion call. For example, in the struggle to have thelegal system acknowledge the horrendous social problem of spousal abuse perpetrated bysome men, early advocates for the victims of domestic violence needed to virtually denythe existence of violent women and pay little attention to the needs of children who witnessedthe abuse. Scarce resources were appropriated for female adult victims, services forchildren were of low priority, and any assistance to the abusive male was actually prohibitedin most cases. Although social science knowledge was cited extensively to form the evidencebase for these priorities in family law, policies, and services, in fact it was sometimesdistorted, lacking, or thin at best.

Social science research, like any other form of science, flourishes with challenge, con-troversy, debate, and critique as data are subjected to rigorous analysis and to the testing ofalternative theoretical hypotheses. However, these debates must address the scientific meritof the studies in order to inform our work effectively. The rules of the game are generallyfair and above board in the presentation and publication of research data when they areenforced by a cadre of well-respected umpires whom social scientists call “peer-reviewers.”It is commonly believed that peer-reviewed journal articles are the most reliable sources of

Johnston/INTRODUCING PERSPECTIVES 17

information, and even so, there is a status hierarchy among journals, with those rated morehighly being subject to more rigorous review. Books are less credible because they are notgenerally subjected to the same rigorous review process or may not have been criticallyreviewed at all. Information gained from other sources, newspaper and magazine articles,the Internet, television, and personal communication vary greatly in quality and relia-bility and, in fact, should be generally considered suspect. Hence they do not have a placein scholarly work.

Despite these generally accepted guidelines, the problem remains that, in politicallycharged areas of divorce and child custody, too many social scientists and legal scholars areseduced—wittingly or unwittingly—into becoming advocates for political positions andsocial policies rather than being objective or balanced reporters of research findings. By theterm “advocate,” I mean social activists in general who are mobilized in pursuit of socialchange, including but not limited to women’s rights, father’s rights, and gay and lesbianrights groups as well as religious and academic ideologues. In exploring the manner inwhich my own research and that of my colleagues has been misused, I have identified sevencommon techniques or strategies employed in the field that certain advocates use to destroythe standing of research data and researchers whose data they do not like, half of them attimes found in peer-reviewed journals and used, at times, even by well-known and well-respected scholars. These I have named: (1) The Strawman, (2) Cherry Picking, (3) LeadingAuthority Declarations, (4) Scholarly Rumors, (5) Character Assassination, (6) Boycottthe Researcher, and (7) Stalking and Hit Lists. Although I refer to these as techniques orstrategies, I do not want to imply that they are always conscious, deliberate, or manipulativeploys. Rather, it is quite possible that those with strongly embedded frameworks for view-ing and acting in the world will honestly construe other viewpoints in terms of their ownusing these or similar modes of cognitive distortion.

(1) The Strawman.

This technique involves restating the original research studyincorrectly, grossly simplifying it, or misrepresenting it in some important way. Theresearch findings are then easily critiqued, ridiculed, and/or dismissed. Ideologicalacademics, who are wedded to a specific paradigm or philosophical view of the worldthat they disseminate with a religious fervor, commonly use this strategy. Dependingupon the background knowledge of the reader, this technique succeeds to some extentin discrediting particular research findings with readers while advancing theproponent’s ideological or political position.

(2) Cherry Picking.

Is to state partial research findings that favor the advocate’s orideologue’s position while ignoring those that are not consistent with it. This isprobably the most commonly recognized tactic by those with a political agenda. Lesswell recognized is the practice of stating findings without due consideration for thelimitations of the original study. Some authors publish their research in peer-reviewedjournals where they carefully acknowledge the limitations of their findings but proceedto abandon their caution when presenting their data in other settings (at conferences,as testimony in policy-making forums, and when speaking to the media and otherinterested groups). A particularly subtle strategy is to give full credence to thefavorable findings and to discuss only a few of the more benign limitations, therebymaking the analysis appear more objective or balanced. Yet another variation of thisstrategy is used when authors dismiss valid and important research findings that donot support their preferred hypothesis on the basis of the limitations of the originalstudy (i.e., the proverbial baby is thrown out with the bathwater).


(3) Leading Authority Declarations.

This technique relies upon misstated opinionsof well-known researchers or charismatic leaders in the field. It is easily recognizedby the use of important-sounding titles, institutional affiliations, and declarations ofprestige and authority prior to or accompanying the author-advocate’s summary ofresearch findings. For example, the following declaration should raise the reader’ssuspicions as to the validity of the data: “Dr. X, executive director of the prestigiousY Institute and one of the world’s experts on domestic violence and child custody,explains that . . .” because too often these summaries are misstatements or blatantlyincorrect misrepresentations of the findings. Reference to prestigious names andaffiliations have no role in legitimizing research findings. Indeed it is deemed goodsocial science practice to evaluate all research submitted for publication independentlyand anonymously—by having author names, affiliations, and funding sourcesexpunged from the manuscript during a blind review process. Subsequently, theresearch is expected to be reported objectively in the literature, with no weight givento the status of the source.

(4) Scholarly Rumors.

This technique involves a cohort of scholars who misquoteresearch and then quote one another, without checking back to the original source.This is a problem typically caused when authors who have strong ideological or activistviews rely primarily upon secondary data sources (i.e., other people’s interpretationand critique of the original work). The rumor may begin when there is simply somemisunderstanding and miscommunication of research findings, or it may originate inmore egregious use of strategies that discredit others’ research findings (like theStrawman technique or Leading Authority declaration). These persuasive summariesof the research are then quoted and shared widely by those who favor a particulartheoretical perspective or political stance and subsequently generalized, becomingcommonly accepted myths in the field. Consequently, whole bodies of scholarship areat risk for being dismissed by a cohort of like-minded ideologues because they are,for example, deemed feminist rhetoric or, alternatively, they are rejected by otherscholar-advocates for “failing to recognize the overwhelming role of genderinequality, power imbalance, and social injustice, hence minimizing the seriousnessor consequences of male violence.”

Other strategies that are used by advocates to suppress social science knowledge unfa-vorable to their cause are not likely to be found in any reputable publication. However, theyare a set of destructive measures aimed to cast a cloud of suspicion over any research dataassociated with a specific researcher.

(5) Character Assassination.

Here the character and integrity of the researcher,rather than specific research findings, are maligned. The author-advocate may suggestthat the researcher is generally ignorant, has dubious motivation, harbors bias orprejudice, and engages in careless or corrupt research practices. These kinds of remarkscan be made at professional meetings and on the Internet (especially list serves),where they are promulgated widely and repeated by others, thus becoming commonlyaccepted myths.

(6) Boycott the Researcher.

This technique involves attempts by advocacy groupsto prevent the researcher from presenting his or her findings at professional meetingsand workshops. Much of this goes on behind closed doors, in committee meetingswhen speakers’ names are vetted. Only when that fails does this process become more


public. Invitations to be a prominent speaker at a conference are abruptly withdrawn afteradvocacy protests. Letter-writing campaigns are waged, aimed to mobilize sponsoringorganizations, and leading judges are lobbied to withdraw their support for theconference where the controversial speaker is scheduled to present. In extreme situations,advocates turn up to picket the proceedings or disrupt the presentation.

(7) Stalking and Hit Lists.

This is a technique that involves harassment and evencriminal threats, perpetrated by fringe groups or extremists. The researcher’s name isblack listed with flyers and on the Internet, accused of being “mother-biased” and“supportive of hysterical, embittered women.” The researcher is alternatively brandedas a “father’s rights activist,” “in league with pedophiles,” or labeled more generallyas “racist” and “sexist.” Fortunately these characterizations are viewed as fanaticalbehavior and not taken seriously by most people. However, these tactics can becomea form of terrorism when anonymous threatening letters are disseminated or deliveredto a target recipient.

It is important to acknowledge the toll that the above kinds of tactics can have uponresearchers whose work is under fire. In response to such attacks on their self esteem andintegrity, at a very personal level, the researcher can range from feeling quite defensive andbruised to defeated and burned out. It is no wonder that many researchers and academiciansretreat to the bastions of their ivory towers leaving certain opportunists and politicians tofight over the spoils of research data in the messy real world and a few brave well-meaningsouls to salvage what they can.

The following three articles in this issue seek remedies to the kinds of problems arisingfrom conversing in a multidisciplinary, highly political environment. The lead article byRobert Kelly and Sarah Ramsey, titled “Assessing and Communicating Social ScienceInformation in Family and Child Judicial Settings: Standards for Judges and Allied Profes-sionals,” proposes much-needed guidelines for filtering out unreliable social science data infamily law matters. Judges (who are authorized to take judicial notice of such informationand act as gatekeepers to the introduction of expert testimony) will find these guidelinesparticularly useful when evaluating the quality of social science that is introduced in court.The article also suggests corresponding ethical principles for social scientists to use whenthey communicate their findings to the court, with special attention to those that shouldgovern amicus briefs. If these kinds of standards are upheld by the court, others who haveinput in court proceedings (like lawyers and custody evaluators) will need to be accountableto them also.

An especially valuable contribution of this article is the manner in which it systematicallylinks the principles of the scientific method as employed by the social sciences with thoseof the legal standards established by the

Daubert

Supreme Court decision. This linkage isspelled out meticulously and graphically illustrated, hence producing a common cross-disciplinary evaluation instrument and communication tool to be used when assessing thestatus of social science knowledge claims.

A second article, titled “The Politics of Research: The Use, Abuse, and Misuse of SocialScience Data—The Cases of Intimate Partner Violence,” is authored by social scientist,Richard Gelles, a veteran in the war between social scientists and victims’ advocates withdifferent ideological positions toward family violence and spouse abuse. He exposes anumber of scientific knowledge claims commonly made in the field (especially during theperiod wherein the problem came onto the national political agenda in the United States)as factoids, which according to Webster’s dictionary are defined as “something [that is]


fictitious or unsubstantiated that is presented as fact, devised especially to gain publicity,and accepted because of constant repetition.” Furthermore he goes on to identify a numberof currently held value-based assumptions that make up the body of commonly acceptedknowledge in the field of intimate partner abuse as being largely unsubstantiated byresearch. This article clearly demonstrates the problem when advocacy goals and strategies(where the ends tend to justify the means in a game of TEGWAR

1

) predominate over thoseof traditional social science (where the rules of the game are the scientific method). Unfor-tunately in family law proceedings, mental health and legal professionals are vulnerable toaccepting unreliable evidence when they are unable to distinguish which game is beingplayed (i.e., how the evidence was derived).

The third article, by Kyle Pruett, is titled “Social Science Research and Social Policy:Bridging the Gap.” Drawing from his extensive experience communicating his research onfathering and early childhood education to policy makers and the media, Dr. Pruett ruefullyshares some of his personal experiences of having his findings misused and his namesullied. Rather than being discouraged and critical of social activists, however, he embracesthe conflict that arises between researchers and policy makers, respecting that they havebasically different but critically important functions. He sees the conflict as a challenge todevelop effective cross-cultural dialogue between these two fields. Seeking a lexicon thatbridges the cultural disparity and strategic frameworks for communicating ideas in waysthat inspire action, he proposes two types of persuasive information that can be responsiblycommunicated from the social sciences to social change agents (true scientific knowledgeand reasonable hypothesis) and one type that is unacceptable (unwarranted assertions). Hesuggests that social scientists try to communicate these responsible types of informationto policy-makers in ways that are more easily understood, emotionally compelling, andpersuasive—perhaps using narratives and metaphors from everyday discourse—these beingmodes that promote action.

The problems identified by Dr. Gelles, the standards proposed by Drs. Kelly and Ramsey,and the communication modes suggested by Dr. Pruett are surely relevant for custodyevaluators, preparers of amicus briefs that inform the court, task forces that draft socialpolicy and model statutes, and social scientists who publish or present at professionalmeetings. The question is to what extent can we expect practitioners without a specializedbackground in social science research (like mediators, divorce counselors, and familyattorneys) to acquire the technical skills and capacities to critique and communicateresearch findings? In view of their very different background training and expertise, I donot think this is reasonable or feasible. On the other hand, judges who are gatekeepers forthe admission of expert testimony in court hearings may need to rise to the challenge inwhich case they will need more tooling, as will attorneys who cross-examine experts incourt. There are other kinds of measures to help nonresearchers screen out some of theunsubstantiated claims made in the name of social science research. Greater access to arange of social science consultants—those with balanced perspectives and diversebackgrounds—can help practicing mental health and legal professionals with criticalreview and interpretation, especially of the more complex and technically dense socialscience research.

In summary, these articles illustrate the need to develop effective cross-disciplinarycommunication, common standards, and ethical principles as we increasingly draw uponsocial science knowledge to build evidence-based practice, programs, and policies in thefamily law field. We hope that these articles will stimulate more critical thinking andcreative contributions of this nature because we have scarcely begun this task.


NOTE

1. TEGWAR refers to “The Exciting Game Without Any Rules” used as a metaphor in this article.

Janet Johnston is a professor in the Department of Justice Studies at San Jose State University whoseresearch and clinical practice has focused on highly conflicted and violent custody-litigating families.

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INTRODUCING PERSPECTIVES IN FAMILY LAW AND SOCIAL SCIENCE RESEARCH