REPRINT OF PUBLISHED ARTICLE

The article that follows originally appeared in the Journal of Child Custody: Research, Issues, and Practices

Cite the article as:

Martindale, D. A. (2006). Play therapy doesn’t play in court: A review of Anita Trubitt’s (2004) Play therapy goes to court: Implications and applications in contested child custody, 2nd ed. (Kailua, HI: Author). Journal of Child Custody: Research, Issues, and Practices, 3:1, 77-86.

BOOK REVIEW

Play Therapy Doesn’t Play in Court

David A. Martindale

ABSTRACT. Anita Trubitt (2004), in Play Therapy Goes to Court: Im-plications and Applications in Contested Child Custody, writes about theinclusion of play therapy modalities in a comprehensive child custodyevaluation. Her contention is that office play does not lie. This reviewer’sperspective, put simply, is that play therapy should not go to court. [Ar-ticle copies available for a fee from The Haworth Document Delivery Service:1-800-HAWORTH. E-mail address: <docdelivery@haworthpress.com>Website: <http://www.HaworthPress.com> © 2006 by The Haworth Press, Inc.All rights reserved.]

David A. Martindale, PhD, ABPP, author of Cross-Examining Mental Health Ex-perts in Child Custody Litigation, is a diplomate in Forensic Psychology, AmericanBoard of Professional Psychology. For 16 years, he performed court-appointed evalua-tions of comparative custodial fitness in New York. He is now in private practice inNew Jersey as a forensic psychological consultant to attorneys and psychologists. Hiswork is concentrated in the areas of child custody, professional ethics, and malpractice.He regularly lectures on custody-related topics. Dr. Martindale is an adjunct clinicalsupervisor in the graduate program in psychology at John Jay College of Criminal Jus-tice of City University of New York and has taught graduate courses in ethical issues inforensic psychology there. He is also Adjunct Clinical Professor of psychiatry at theState University of New York at Stony Brook.

Address correspondence to: David A. Martindale, PhD, ABPP, 1 Jenni Lane,Morristown, NJ 07960 (E-mail: david@damartindale.com).

Journal of Child Custody, Vol. 3(1) 2006Available online at http://www.haworthpress.com/web/JCC

© 2006 by The Haworth Press, Inc. All rights reserved.doi:10.1300/J190v03n01_06 77

Dow

nloa

ded

by [

Ms

Les

lie S

hear

] at

12:

09 0

8 M

arch

201

3

KEYWORDS. Play therapy, child custody evaluation, child custody,play therapy as evidence

Anita Trubitt, a licensed clinical social worker in Hawaii, and a Regis-tered Play Therapist-Supervisor with the Association for Play Therapy,describes herself as a “passionate believer in the inclusion of play therapymodalities in a comprehensive child custody evaluation” (p. iii). FromTrubitt’s perspective, the importance of play is “based on the premise thatplay does not lie . . .” (p. iv). Though Trubitt’s text is focused on the use ofdrawings and play, she also offers information concerning ways in whichevaluators can assist the families being evaluated. This reviewer’s per-spective, put simply, is: Play therapy should not go to court.

MULTIPLE ROLES

Setting the Tone: Evaluator as Empathetic Listener

In a letter that Trubitt sends to parents before the evaluation com-mences, she describes the “gently curving arc” of Kailua Bay (whereshe resides and practices) and the fact that one’s “view from one end ofthe beach is very different from [one’s view] at the other end.” She de-clares: “It is my job to ‘walk the beach’ with you in this evaluation, andto view each family member’s different perspective and ‘truth’ ” (p. 88).

Though Trubitt, in her introductory comments (p. v) uses words thatsuggest an awareness of the inadvisability of functioning in multipleroles, many of the sentiments expressed by her and examples providedby her indicate that she is quite comfortable engaging in activities thatare inconsistent with her role as an impartial, court-appointed evaluator.

Trubitt writes: “[O]ur connection with [the parents] offers the valuablepossibility of catharsis, as they may feel ‘heard’ for the first time, by aneutral and empathic professional” (p. 9). The desire to blend helping ef-forts with investigative efforts creates a significant risk that neither taskwill be handled appropriately. Ceci and Hembrooke (1998, p. 4) have ex-pressed the view that “the uniquely human qualities that compel us towant to help are the very qualities that can make us poor experts.”Shuman (1993) has expressed similar sentiments. Shapiro (1988) haspersuasively described “the skepticism, distance, and objectivity neces-sary to perform a comprehensive forensic evaluation” (p. 84).

78 JOURNAL OF CHILD CUSTODY

Dow

nloa

ded

by [

Ms

Les

lie S

hear

] at

12:

09 0

8 M

arch

201

3

Evaluator as Facilitator

Trubitt writes: “We strive to empower parents by doing our best tohelp them work out a parenting plan that both can live with, rather thanallowing a judge to decide this critically important decision for them”(p. 9). Among those who work in this field, there is, I believe, strongagreement that families benefit when they are able to formulate aparenting plan without court involvement. Such efforts should be en-couraged and facilitated; however, once a mental health professionalhas accepted a court-issued assignment to conduct an evaluation, thepractitioner should conduct the assigned evaluation.

Assisting litigating parents in constructing a parenting agreement,thereby obviating the need for further court involvement, is a worth-while goal but it is a goal that is inconsistent with the goal of conductingan evaluation. Efforts aimed at constructing a parenting plan requirethat each parent focus on the other’s strengths. An evaluator must focuson strengths and deficiencies. Any procedure that encourages a mindsetthat will lead to an emphasis either on strengths or on deficiencies cre-ates a risk that not all the needed information will be provided.

Benjamin and Gollan’s “allegation-focused” model (2003, p. 173)distorts the evaluative process by directing attention to alleged parent-ing deficiencies. Efforts such as those described by Trubitt require con-ciliation, which creates an atmosphere in which pertinent deficienciesmay never be brought to light. The demands and expectations that char-acterize the professional relationship between two parents and a mentalhealth professional who is endeavoring to construct a parenting plan arein conflict with the demands and expectations that characterize the pro-fessional relationship between the same two parents and a mental healthprofessional who is evaluating them in order that an advisory reportmay be prepared for and presented to the court.

If the team effort to construct a parenting plan is unsuccessful and theevaluative endeavor moves forward, the rules change. The parent whowas responsive to the let’s-work-together rules may have stifled certainconcerns about the other parent. Now that the rules have changed, thisparent’s position before the court has been weakened by the failure tobring to light concerns that s/he may have concerning the other parent.The opposite distortion may also occur. The parent who appears to havebeen more conciliatory during efforts at creating a parenting plan maybe favored by an evaluator whose primary goal was to lead the parentsto a voluntarily agreed-upon parenting plan.

Book Review 79

Dow

nloa

ded

by [

Ms

Les

lie S

hear

] at

12:

09 0

8 M

arch

201

3

Evaluator as Parent Educator

Trubitt declares: “Although our involvement with the family may bebrief, we have the opportunity to do some vital educating during theprocess” (p. 9). Parent education is a worthwhile endeavor but the de-mands of the parent educator role are in conflict with the demands of theevaluator role.

If an evaluator recommends that a parent modify some specificparenting behavior and the parent asserts that s/he will do so, what doesthis tell the evaluator? Consider these hypotheses: (1) The parent has nointention of making the suggested modification, but senses that theevaluator is likely to look with favor upon a litigant who states that s/hewill act upon the evaluator’s advice. (2) The parent is sincere in statingthat the modification will be made, but the modification is never made.(3) The modification is made but the parent is unable to maintain thesuggested behavior. (4) Behavior change occurs, but the evaluator’ssuggestion was flawed, so no good comes from the resulting change inbehavior. (5) The evaluator’s advice was sound, the recommendedchange is made and maintained, and the child benefits from the change.Only under circumstance (5) is a benefit seen. Even when a benefit isrealized, a potential disadvantage must be considered.

The evaluator, not being caught up in an adversarial mindset, be-lieves that everyone wins if sound advice is provided and followed. Par-ent B, very much in an adversarial frame of mind, observes that ParentA and the child are relating more effectively and learns that Parent A hasreceived parenting advice from the evaluator. Is there not a real risk thatParent B will complain about the assistance given to Parent A by theevaluator, assert that the evaluator is biased, and seek to have the evalu-ator’s advisory input to the court disregarded? We cannot simulta-neously evaluate people’s parenting skills while endeavoring to assistthem in improving those skills.

BRINGING THE PROJECTIVE HYPOTHESIS TO COURT

Understanding the Projective Hypothesis

If one fully understands the concept of projection, one is more likelythan not to conclude that neither drawing nor doll play is a “reliablesource of information.” Even if it had been demonstrated that the dy-namic of projection consistently operates as children draw and play

80 JOURNAL OF CHILD CUSTODY

Dow

nloa

ded

by [

Ms

Les

lie S

hear

] at

12:

09 0

8 M

arch

201

3

with dolls, there would still be no basis for our relying upon it. The earlyproponents of projective techniques (Abt & Bellak, 1950) made it clearthat we cannot be certain what is being projected. More recently, Han-dler (1996) has reminded clinicians who utilize human drawings in theirwork that the figure generally referred to as the “self ” figure may repre-sent the person’s perception of himself or herself (with emphasis eitheron physical or psychological attributes); may represent what the personwishes himself or herself to be (again, with emphasis either on physicalor psychological attributes); and, to complicate things further, the draw-ing may symbolically portray physical or psychological impairment,compensation for a real or perceived shortcoming, or “a combination ofthese factors” (p. 219).

Handler’s cautionary statements, when applied to family drawings,remind us that if a child produces a drawing in which she places herselfclose to her father, this may represent a projection of her perception ofher relationship with her father, but it may also represent not a percep-tion, but a wish. The child with a father who is either physically absentor emotionally distant might draw the father close to the child. An olderchild whose drawing skills are somewhat better might draw himself be-ing cared for by a parent who, in reality, provides deficient care. Thus,there is no basis for Trubitt’s assertion that when an examiner employsthe Family as Animals in the Sand technique, the “sandtray . . . becomesa 3-dimensional representation of the child’s perception of the family . . .”(p. 6). To further complicate matters, even if we could presume that it isalways a perception that is being projected, are we to presume that chil-dren’s perceptions of family dynamics are accurate (or that if they areinaccurate it does not matter because it is only their perceptions that areof concern to us)?

Richard Dana, who has authored numerous articles on projectivetesting, sagaciously observed more than three decades ago (Dana, 1966)that interpretations of responses to projective stimuli are vulnerable toeisegesis–distortion stemming from projection by the examiner (as op-posed to the examinee) deriving from the examiner’s theoretical biases,emotional investment in certain hypotheses, etc. He has reiterated hisposition more recently (Dana, 1996, p. 202). Anastasi (1988) alsoopined that the interpretation of responses to projective stimuli “may re-veal more about the theoretical orientation, favorite hypotheses, andpersonality idiosyncrasies of the examiner than it does about theexaminee’s personality dynamics” (p. 614).

Book Review 81

Dow

nloa

ded

by [

Ms

Les

lie S

hear

] at

12:

09 0

8 M

arch

201

3

Doll Play and Drawings

Though most research on the utility of doll play for diagnostic/evaluative purposes has been conducted within the context of investiga-tions of allegations of child sexual abuse, the message that emerges isthat young children do not perceive dolls as symbolic representations ofthemselves (DeLoache, 1995). In particular, there is no empirical sup-port for Trubitt’s assertion that “[w]here [children] put the family dollthat represents themselves tells us where they feel most comfortable orsafe” (p. 6). If doll placement conveys a message, it is a message thatlacks the clarity ascribed to it by Trubitt.

Trubitt declares: “In the heat of a protracted custody battle, childrencan be bribed, cajoled, even threatened to say things to an evaluator thatdo not reflect their true feelings, needs, and wishes. Their play, on theother hand, is a much more believable expression of their inner reality”(p. iv). She adds that a “child’s play is a more direct path to their innerworld, and tells us more than do their words” (p. v). It is Trubitt’s posi-tion that play modalities “may be used instead of, or in addition to, averbal interview, depending on the age and comfort level of the child”(p. 27).

Trubitt states that “[t]he play therapy modalities have contributedpowerfully to [her] understanding of the dynamics of every family that[she has] ever evaluated . . .” (p. iii). Throughout the book, she providesexamples of observations made as children and parents engage in dollplay and the ways in which those observations have contributed to herunderstanding of the family being evaluated. In each of her examples,the possibility exists that inferences drawn by Trubitt are unwarranted.

Trubitt states: “Indicators of positive identification with a parent canbe seen in similarity of clothing and hair styles” (p. 36). A parent may,for a variety of reasons (some of which are unhealthy) clothe a child andgroom a child to appear like a miniature version of the parent. A child’sdrawing may reflect this reality and not “positive identification” withthe parent.

Trubitt states: “Who is facing whom and who is turning away maytell us something about family dynamics” (p. 36). A question: Whentwo people are back to back, who has turned away? An observation:Even if this positioning is observed in a drawing or in doll play and evenif we presume that it tells us something, is it not possible that it tells ussomething about a recent disagreement and nothing about more stablefamily dynamics?

82 JOURNAL OF CHILD CUSTODY

Dow

nloa

ded

by [

Ms

Les

lie S

hear

] at

12:

09 0

8 M

arch

201

3

In describing the Family Build-a-House technique, Trubitt states:“Many times a house will begin ‘small’ but often it is expanded when itbecomes clear that more space is needed. This says something about thefamily’s flexibility and potential for growth” (p. 32). The expansion de-scribed by Trubitt may represent actual or wished for expansion of thefamily home and say nothing at all about psychological flexibility orpotential for growth.

Trubitt observes that “attention given to the outside of the house maytell us something about isolating or excluding one’s self if one personworks on this alone, or about cooperation if several members engage init together” (p. 32). It may also tell us that one of the family members isvery involved in work on and around the exterior of the family resi-dence. Even in healthy close-knit families, are there not certain activi-ties that some family members engage in by themselves? If one familymember enjoys working in the garden and other family members do not,is this reflective of psychological isolation or exclusion of oneself fromthe rest of the family?

When two homes are utilized in the play, Trubitt observes how eachhas been furnished (p. 32). If the mother and father no longer reside to-gether and if one play home is furnished more “richly” than the other,this may reflect reality and nothing more. Sometimes a credenza is just acredenza.

Defining Helpfulness

We do a disservice to families in conflict, to the court system, and tothe image of the mental health professions when we confuse perceivedhelpfulness with actual helpfulness. Astrologers, palm readers, andtarot card readers are often perceived as helpful by those who utilizetheir services. Where there is ambiguity, individuals in search of claritywill often mentally assemble ‘facts’ that appear to support whateverclarity they have manufactured.

Any ambiguity that may have previously existed concerning the de-fining features of helpful advisory input to courts was removed by theUnited States Supreme Court’s decision in Daubert v. Merrell Dow,113 S.Ct. 2786 (1993). In Daubert, the Supreme Court described Fed-eral Rule of Evidence 702 as setting forth a “helpfulness standard” (at2796). FRE 702, as amended 4/17/00, declares that expert testimonymust be “based upon sufficient facts or data,” must be “the product ofreliable principles and methods,” and must be offered by a witness whohas “applied the principles and methods reliably to the facts of the

Book Review 83

Dow

nloa

ded

by [

Ms

Les

lie S

hear

] at

12:

09 0

8 M

arch

201

3

case.” An expert who has relied on inferences drawn from observationsof drawings or doll play has formulated opinions that are not “theproduct of reliable principles and methods.”

EXPERTS AND EXPERTISE

The scope and quality of the input offered by an expert to a court can-not be judged by the scope and quality of the expert’s education andtraining. In an article addressing the cross-examination of experts, I ob-served that “[t]he defining attributes of an expert opinion relate not tothe credentials held by the individual whose fingers type the words orfrom whose mouth the words flow; rather, the requisite characteristicsrelate to the procedures that were employed in formulating the opinionand the body of knowledge that forms the foundation upon which thoseprocedures were developed” (Martindale, 2001, p. 503).

Faigman, Kaye, Saks, and Sanders (2002) have provided a magnifi-cent summary of and explanation of the body of knowledge concerningthe means by which empirical data are gathered and systematically ana-lyzed. They, and many before them, have explained the importance ofreliability and validity. There are no data to suggest that inferencesdrawn based upon drawings or play are reliable (and reliability is anecessary element of validity).

As these issues relate to Trubitt’s recommended procedures, there isno evidence that different experts viewing the same drawing or periodof play will formulate the same opinions concerning the informationprovided by the drawing or play. Equally important is the fact that thereis no evidence of temporal stability–no evidence that what is observedtoday (in a child’s drawings or play) will be similar to what might beobserved six months from today.

That admissible expertise is defined not by credentials but by meth-odology was established by the United States Supreme Court in KumhoTire Co., v. Carmichael, 526 U.S. 137 (1999). Evidence proffered by anexpert had been rejected by an Alabama court. In upholding the rulingof the Alabama court, the Supreme Court called attention to the fact that“[t]he District Court did not doubt [the expert’s] qualifications. . . .Rather, it excluded the testimony because, despite these qualifications,it initially doubted, and then found unreliable, ‘the methodology emp-loyed by the expert . . .’” (at 153).

84 JOURNAL OF CHILD CUSTODY

Dow

nloa

ded

by [

Ms

Les

lie S

hear

] at

12:

09 0

8 M

arch

201

3

CONCLUDING WITH A CASE EXAMPLE

Trubitt’s text contains numerous case examples. Not surprisingly,each has been selected because it demonstrates a point that Trubittwishes to make concerning the information that can be derived fromchildren’s drawings or play. I, too, have a case example. It follows.

A psychologist whose practice is focused on children and families iscontacted by a school psychologist from whom she regularly receivesreferrals. The school psychologist seeks a professional favor. He wishesthe psychologist to see a particular child as soon as possible because adrawing produced by the child “has caused significant concern.” Thechild has drawn a house in which the second level is not centered overthe first. The primary means of access and egress appears to be a ladderto the second level. There is nothing remotely decorative. There is nogarden and no grass (and the child resides in an area where virtually ev-eryone has lawns and gardens). Rocks are noticeable in the drawing.The school psychologist states that the drawing “tells [him] somethingpretty scary about the child’s home environment.” The treating psychol-ogist requests a faxed copy of the drawing and schedules an appoint-ment with the child and her parents. Shortly after the family arrives andinformation has been exchanged, the psychologist, alone with the child,places the drawing in front of the child and says: “Tell me about yourdrawing.” The child explains that immediately prior to her visit with theschool psychologist, she had been in a social studies class, learningabout “the Pueblo Indians.” The child states: “When Dr. Smith askedme to draw a house, I decided to draw a pueblo.” Sometimes a house is apueblo.

REFERENCES

Abt, E. & Bellak, L. (Eds.) (1950). Projective psychology. NY: Knopf.Anastasi, A. (1988). Psychological testing (6th ed.). New York: Macmillan.Benjamin, G. A. H. & Gollan, J. K. (2003). Family evaluation in custody litigation:

Reducing risks of ethical infractions and malpractice. Washington, DC: AmericanPsychological Association.

Ceci, S. J. & Hembrooke, H. (1998). Expert witnesses in child abuse cases: What canand should be said in court. Washington, DC: American Psychological Associa-tion.

Dana, R. H. (1996). The Thematic Apperception Test (TAT). In C.S. Newmark (Ed.),Major Psychological Assessment Instruments, 2nd ed. Boston: Allyn & Bacon.

Book Review 85

Dow

nloa

ded

by [

Ms

Les

lie S

hear

] at

12:

09 0

8 M

arch

201

3

DeLoache, J. S. (1995). The use of dolls in interviewing young children. In M.S.Zaragoza, J. R. Graham, G. C. N. Hall, R. Hirschman, & Y. S. Ben-Porath, Improv-ing children’s testimony (pp. 160-178). Thousand Oaks, CA: Sage.

Faigman, D. L., Kaye, D. H., Saks, M. J., & Sanders, J. (2002). Science in the law:Standards, statistics, and research issues. St. Paul, MN: West.

Handler, L. (1996). The clinical use of drawings: Draw-A-Person, House-Tree-Person,and Kinetic Family Drawings. Pages 206-293 in C. S. Newmark (Ed.), Major psy-chological assessment instruments, 2nd ed. NY: Allyn & Bacon.

Martindale, D. A. (2001). Cross-examining mental health experts in child custody liti-gation. The Journal of Psychiatry and Law, 29/Winter, 483-511.

Shapiro, D. L. (1988). Ethical constraints in forensic settings: Understanding the limitsof our expertise. Psychotherapy in Private Practice, 6:1, 71-86.

Shuman, D. W. (1993). The use of empathy in forensic examinations. Ethics and Be-havior, 3, 223-302.

86 JOURNAL OF CHILD CUSTODY

Dow

nloa

ded

by [

Ms

Les

lie S

hear

] at

12:

09 0

8 M

arch

201

3