Court-appointed psychologists performing child-custody evaluations in West Virginia will soon be protected from groundless lawsuits under a law based on APA guidelines.
The state's immunity law, which takes effect in July, allows licensed psychologists to provide "good-faith" custody evaluations during divorce proceedings without fear of being wrongly sued by parents disgruntled over their custody recommendations.
Specifically, the law states that an administrative complaint charging bias, incompetence or the like against a court-appointed psychologist can no longer be anonymous. Previously, parents could file complaints with the state psychology board against a psychologist without the psychologist knowing who was upset.
West Virginia is the second state to pass an immunity law of this kind; Florida did so in May 2003. In West Virginia last year, 15 complaints were made against psychologists for their decisions in custody evaluations. Meanwhile, the Florida Psychological Association reports that prior to that state's law, nearly 80 percent of all complaints filed with the Florida Board of Psychology were for custody evaluations.
Under the new West Virginia law, if a civil action is filed against a psychologist or psychiatrist, the complainant must pay all legal fees for both parties if the judge rules the suit is frivolous because the psychologist or psychiatrist performed the evaluation in good faith.
APA guidelines set the standard
For both states' laws, the definition of "working in good faith" comes straight from APA's "Guidelines for Child Custody Evaluations in Divorce Proceedings." These recommendations encourage psychologists to maintain an objective stance, seek additional consultation when needed and make any custody recommendation solely for the child's well-being. Notably, the West Virginia law citing APA's guidelines applies to psychiatrists as well as psychologists.
The legislation stipulates that any filed action that alleges tortious conduct by a licensed psychologist or licensed psychiatrist acting as a court-appointed expert in a child-custody matter must cite a specific breach of APA's guidelines. Not citing the breach is cause for an action's dismissal.
Jimelle Rumberg, executive director of the West Virginia Psychological Association, says the bill is so logical that it passed unopposed after she spent only one day advocating for it with legislators.
"This is a bill to help courts, children and clients--and it's a good way to open up an area of clinical practice," she says. "You could see the legislators' heads nodding 'yes.'"
Rumberg hopes the law will draw psychologists back to a practice area often avoided for its high risk of litigation. About 90 percent of all custody cases nationwide end uncontested, Rumberg says, but "it's the 10 percent we're worried about."
Protections in a potentially risky area
After all, for that 10 percent, the fallout from a complaint can extend beyond a particular case, notes Billie Hinnefeld, JD, director of legal and regulatory affairs in APA's Practice Directorate.
"Just having a complaint filed can damage you, even if it is unfounded," she says. "It may impact such things as your malpractice insurance or your ability to be on certain managed-care panels. The new law will discourage people who file frivolous suits."
Beyond its protective measures, the West Virginia law is remarkable for emerging so quickly after the Florida law and--unlike Florida--extending the immunity coverage to include psychiatrists, adds Michael Sullivan, PhD, assistant executive director for state advocacy in APA's Practice Directorate.
"What is significant is a state's ability to take an innovative idea that helps practitioners and to expand upon it," Sullivan says. "This law met a real need: Anything that can give practitioners extra protection for the unique role they play in this area of the law is helpful."
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