This article is intended to be a resource for New York attorneys who do not consider themselves to be experts in cases where the child custody dispute includes an evaluation by a child custody forensic expert. This guide may also be helpful for pro se litigants.
I am a New York trial and appellate attorney who has over 25 years experience doing all types of cases in Family Court. The majority of my Family Court trial and appellate cases deal with child custody or child support. I also have a great deal of trial experience in other types of civil cases, including Supreme Court, Civil Court, and even the Small Claims Court.
Forensic child custody evaluators are usually licensed psychologists or psychiatrists who have special training, experience, and expertise in conducting custody assessments, and testifying in court as expert witnesses.
If you are an attorney who has a case involving a forensic custody evaluation, this guide should be helpful, but if, after reading it, you are still unsure of your ability to effectively deal with this issue, you may wish to either retain trial counsel, or retain associate counsel to conduct the direct and cross examination of the expert.
If you are a pro se litigant who cannot afford to hire an attorney to represent you, you may be able to hire either an experienced family law attorney or a forensic evaluator to consult with.
I have written this article based upon my experience and study of New York law, and procedures that are commonly followed in custody evaluations conducted for custody cases in the New York courts. If your case is in another state, this guide is intended to help you with issues you may wish to consider, but may not directly apply in your state.
What is the purpose of a forensic evaluation in a child custody case?
The purpose of a forensic custody evaluation is to assist the court in deciding who the child or children will be living with, what will be the visitation arrangements for the non custodial parent, and who will have decision-making authority about the child or children’s welfare. If relocation is one of the issues in the case, the evaluator will likely be asked to weigh in on that as well.
The custody decision can be very difficult and can involve complex issues of the fitness, parenting skills, and strengths and weaknesses of the parents, the relationships between parents and children, family dynamics among other family members such as stepparents, siblings, or other relatives, as well as the psychological well-being and safety of the child or children.
Forensic psychology has been recognized by the courts of New York State as its own sub-specialty of psychology, which deals with custody litigation , reviewing psychological traits and possible psychopathology of the parties ,and recommending custody arrangements. The child custody evaluation process is intended to assist the courts in making important custody decisions.
In New York State these the forensic psychologist or psychiatrist is often referred to as a “court appointed neutral”, which emphasizes their role as independent experts working for the court and not for either of the parties.
The forensic expert will usually try to make recommendations about custody and visitation only after after obtaining as much information as possible, which can include the input of so called “collateral sources” such as the child’s teachers, child care provider, pediatrician, and any mental health experts who are treating the parties or the child or children, or who have treated any of these in the past.
In all cases, the forensic expert will conduct several detailed interviews of the parties, and should also conduct at least one thorough interview of each parent’s spouse or live in paramour . The evaluator may also administer personality tests. Personality tests, often misunderstood, can be important tools which the evaluator uses for hypothesis generation or confirmation of his conclusions. Because the interpretation of the test results can be difficult, the results will typically be summarized in one paragraph of the report and will come with disclaimers.
Recently, many evaluators provide each party with a detailed questionnaire that they are required to complete and return.
The final report will likely include so called “mental status evaluations” for each party, which is the evaluator’s assessment of the party’s mental functioning, and the presence or absence of psychopathology.
It is also standard practice for the evaluator to observe the interaction of each parent with the child or children. This interaction can be observed in the evaluator’s office, or in the parent’s home. If the child or children are old enough, the evaluator will want to interview them as well. These observations assist the evaluator in determining the quality of the relationship and emotional attachment of each child with each parent. Evaluators have extensive education in early child development and want to know if the child’s emotional needs are being met, if he or she has friends, and how the child is doing in school.
Many evaluators make home visits to observe the living conditions as well as the way that the parties and child or children interact in a natural environment.
The evaluator wants to get an idea of the needs of the child or children, the relationship of each child with each of the parents, and make an assessment on the nature, sources, and impact on the child or children of any conflicts in the family.
In this regards, the evaluator should make every attempt to contact and if possible speak with, any mental health professionals such as the child’s doctor, therapist, and the parents’ present or past treating psychiatrists.
The evaluator is not constrained by the rules of evidence and can and will review all types of documentary evidence, including photos, videos, emails, text messages, etc.
Because of the prominence (by statute) of domestic violence issues in the law of custody in New York State, the evaluator should consider and discuss in his report any documented findings of domestic violence against either parent or any step parent or live in partner.
Do you really want a forensic custody evaluation?
Reasons why the court might want a forensic in a custody case:
1) Where the court suspects mental illness.
2) To get more information in a difficult or close case.
3) To make a record which is impervious on appeal.
Reasons why you might want a forensic in a custody case:
1) To show mental illness when you suspect the other parent has it, but there is no proof, i.e. No known psychiatric hospitalizations or records of psychiatric treatment.
2) Where mental illness exists in the other parent, to have the expert testify to how it impacts parenting capacity.
3) To introduce “evidence” to the court which is either inadmissible (hearsay) or impossible or very difficult to obtain, ( i.e. One of more witnesses are outside of subpoena power of the court).
4) To testify as to the effects of substance abuse or alcohol abuse or domestic violence on the child or children, and/ or on parenting ability, or even to show parental unfitness.
5) To prove parental alienation.
6) To make a record which is impervious on appeal.
Reasons to avoid a forensic evaluation
1) When you are confident you will win without it and you do not fully trust either the expert or your client’s ability to present well during the evaluation.
2) In “big money” cases where your adversary has much greater resources. In the Lisa K. case, the court denied the application for recusal of court appointed forensic expert despite the fact that the court appointed neutral, along with all the other experts on the case were all listed on a website containing information regarding them and the plaintiff’s attorney holding themselves out as a “team” of experts available to the public. Unfortunately there seems to be a symbiotic relationship between some of the most expensive forensic evaluators and some of the most prominent family law attorneys.
3) To avoid cost and delay. Forensic custody evaluations can occasionally take up to 9 months or even a year to complete. While in some situations delay might work to your client’s advantage, in others it might not, and in any event, your client may not want their case to drag on and on. In big money cases the experts typically finish their reports quicker, but it could still take 4 months or more, and the expense can go up into the six figures, depending on the expert’s hourly rate and the complexity of the case.
Are you entitled to a forensic child custody evaluation?
The decision as to whether or not to appoint a forensic evaluator in a custody case is in general within the court’s discretion. It can be an abuse of discretion to deny the request where there is evidence of mental illness, drug addiction or alcohol abuse, prior child neglect cases, or domestic violence. Forensic evaluations are much more common in high income cases, especially when dealing with children of a marriage.
Issues to be discussed in the custody evaluation process and the order of appointment
For the last several years, courts have been issuing fairly detailed assignment orders when they order forensics. There does not appear to be any standard order, although most are similar. The assignment orders give guidance as to the scope of the evaluation as well as which issues the evaluator should consider. Typical issues which are included in assignment orders are domestic violence, mental health issues, drug or alcohol abuse, general parenting capacity, and parental alienation.
Nowadays the court will usually ask the attorneys which specific issues they want the evaluator to consider before drafting the assignment order. Attorneys should start thinking about how to respond to this question early in the case.
You may be able to have the judge instruct the expert to conduct psychological testing as part of the evaluation (however some experts may refuse to be told how to do their job).
The assignment order can specify who has access to the report, if copies of the report can be made, if so, how many copies, and who they can be shown to or given to. There also should be provisions as to the exchange of documents provided to the expert, and access to the forensic expert’s notes and perhaps raw data used by him for the trial.
Once you have received the assignment order it is important for you to review it carefully to determine if the written order accurately reflects the parties’ agreement or the court’s expressed wishes.
Will the evaluator make recommendations?
Historically, forensic experts were always asked to make recommendations in child custody cases as to who should get custody. Following the 2005 case of John A. v. Bridget M. , where the Appellate Division criticized the excessive reliance of Judges on recommendations of evaluators, for some years many courts were requiring the evaluators to write reports with no recommendations as to custody.
Nowadays most courts favor recommendations, although it is possible that a court could be convinced to authorize reports without recommendations.
When the evaluator is allowed to make recommendations, these typically include which parent should have physical custody of the child or children, a recommendation regarding joint custody (decision making), recommendations for visitation orders, and sometimes recommendations for services for parents or children. It is not unusual for the evaluator to recommend some kind of counseling or psychotherapy for a parent, and/ or appropriate therapy for a child.
When the evaluator is not asked to make recommendations, the report will focus on strengths and weaknesses of each party, as well as risk factors.
Consent for the judge to read the custody evaluators report prior to testimony
It has been held that a judge cannot read the report in advance without consent of the parties, however most attorneys do give their consent, for various reasons. You may consider withholding your consent in the appropriate case, especially where you are considering objecting to the report coming into evidence (discussed below).
Choosing forensic evaluators
The typical procedure followed by most courts is to ask the parties to confer and see if they can agree to an expert, and if not, to submit one or more names with CV’s.
Some attorneys believe that it is unwise (for client relations and avoidance of malpractice issues) to ever consent to the expert proposed by the opposing party in case they end up losing the case.
You certainly should not consent to an adversary’s recommendation unless you either know the expert well or have done some due diligence in checking out the expert’s track record. You can check an expert out by any or all of the following:
1) Consult with colleagues who are familiar with the expert.
2) Do a WESTLAW search of reported cases involving the expert.
3) Do a GOOGLE search of the expert to see if there have been complaints about him or her.
4) Search for and read books or articles written by the expert.
Preparing the client for the evaluation
The issue as to whether to prepare your client or not is controversial. Some attorneys believe that preparation by you “corrupts” the presumed objectivity of the forensic process, while others believe that you would be derelict in not preparing the client at all.
You can certainly advise your client on how to dress for the evaluation, to be on time, etc. You may wish to instruct your client to avoid getting in an argument with the evaluator, or to avoid demonstrating their hostility towards the other parent.
You may wish to go one step further and explain to the client that the evaluator is looking to assess his or her stability, involvement and consistency in the child’s life, and that the evaluator will try to determine if the client encourages the child or children to have a positive relationship with the other parent.
Documents to be provided to the neutral expert
The assignment order may require that all documents that are provided to the expert by counsel be exchanged within a set number of days, but sometimes does not specify that documentation provided by parties themselves be exchanged.
In either case, attorneys should give sufficient thought to what documents to furnish to the expert. Evaluators give great weight to documentary evidence such as copies of orders of protection, police reports, school records, and reports from therapists and other clinicians.
It is important to realize that the expert is not bound by the rules of evidence, so he can look at all kinds of documents, including documents from the internet, audio and video recordings, unauthenticated pictures, etc, and this evidence will be reflected and cited in the expert’s report and will be seen by the judge.
You have received a copy of the evaluators’ report and it is unfavorable to your client, now what?
Access to the expert’s notes
The right of a party to obtain the expert’s notes prior to the trial is not settled under the law. However many orders of appointment give the parties that right, and unless appealed or stayed, the order of appointment is a court order that must be followed.
In my opinion it would be foolish not to at least try to get the notes if the report is unfavorable as to your client.
With sufficient experience you will be able to determine whether the expert “got it right” or “got it wrong”. If the expert “got it right” you may wish to advise your client to try to settle, while if the expert “got it wrong” you should be thinking about making a motion for possible disqualification of the expert, or hiring your own expert to rebut the court appointed expert.
Things to look at in that area are, did the expert spend about the same amount of time interviewing each of the parents? Did the expert investigate collaterals, especially obvious collaterals?
If this is a “step parent” case, did the expert interview the stepparent in person and observe the interaction of the step parent with the child or children?
If the child or children are of a certain age (or ages), did the expert interview him or her, and if so, was the interview in private or in the presence of one of the parents or (in cases with more than one child) in the presence of siblings?
If there are allegations of domestic violence, substance abuse, mental health issues, or child abuse, which the expert was clearly made aware of, did he consider these in his report and recommendations?
Were any psychological tests administered? If not, should they have been? Do the conclusions and recommendations follow from the “facts” cited?
Was anything important left out of the report, which was mentioned in the notes?
Consultation with your own expert, disqualification motions, and “peer review”
At least in situations where you believe the expert “got it wrong” you will likely want to consult with your own expert, especially if you do not have a lot of experience cross examining forensic psychologists (discussed below).
Bear in mind that if you retain an expert just to consult with you, the attorney/ client privilege and/ or attorney work product privileges will apply, but if the same expert is retained by you to testify the privileges may be broken.
The first thing you should ask your expert about is whether or not the court appointed expert followed the appropriate protocols/ procedures generally used by experts in the field.
If the answer is no, you may wish to consider making a motion to disqualify the court appointed expert and have the evaluation done over by a different expert.
Your expert can also alert you as to weaknesses in the report, and can even suggest specific questions for cross examination. It is even possible to have your expert sit in the courtroom during the direct examination of the expert and give you suggestions for further cross examination (i.e. follow up questions).
Motion to disqualify a forensic expert
This motion is in essence a Frye Motion. You will need an affidavit from your own expert stating why he or she believes that the court appointed expert failed to follow the proper protocols. If you “win” the motion most likely there will have to be a Frye hearing.
Whether you win or lose the Motion, you may be successful in raising some doubts in the court’s mind about the merits of the report, as well as the testimony and recommendations of the court appointed expert. You may wish to attach a copy of the APA Guidelines (discussed immediately below) to your disqualification Motion.
APA guidelines for child custody evaluations in divorce proceedings
In 1994 the American Psychological Association developed the Guidelines for Child Custody Evaluations in Divorce Proceedings.
The Guidelines are not mandatory rules, but instead are meant to facilitate the “continued systematic development” of forensic psychology and ensure a high level of practice by forensic psychologists. These guidelines are equally relevant when the parents were never married.
Even though the APA guidelines are not mandatory, they could be considered an authoritative treatise that could be used in cross examination of the court appointed neutral evaluator (See below).
It will be very helpful for you to read the Guidelines prior to you cross-examination as they will undoubtedly assist you in developing a strategy as well as specific questions.
Use of “counter- experts” or “peer review experts”
Recently courts in custody cases have used the term “peer review” to describe an expert retained by a party to rebut the court appointed expert in a child custody case.
Your expert will always be at a disadvantage because he or she will not be able to interview the other parent or the child/ children or observe parent child interactions, etc.
He or she will largely be limited to interviewing your client, perhaps some of the collaterals, administering psychological tests on your client, and reviewing the forensic report itself and perhaps other documentary evidence.
He can also testify regarding research and reports which contradict the recommendations made by the forensic evaluator.
You will also have to decide whether or not you want your expert to prepare a written report. If he or she prepares a written report you will have to provide it to the adversary before the trial commences.
The use of very specific and thought out cross examination questions, generated with the help of your expert, along with rebuttal “peer review” testimony can go a long way towards alleviating an unfavorable report, especially where the court appointed expert did a less than thorough job (e,g, the court appointed report shows signs that the other parent had signs of personality disorder, but no psychological tests were performed and there was no diagnosis or diagnostic impression).
One issue which is sometimes overlooked by attorneys is where the instant case is a modification case. In a modification case the court is supposed to first determine that there has been a sufficient change of circumstances to warrant a change in physical or legal custody.
If there is such a showing, the court can then make a determination of the best interests of the child or children. However, in modification cases, some courts may refuse to allow testimony from witnesses or cross examination questions as to events that predate the prior order custody order.
This raises the issue that the forensic expert’s report and testimony are almost always include allegations of incidents and events that precede the last order, but the court may still try to preclude you from asking cross examination of witnesses about allegations in the report that make out such allegations.
Stipulation as to the expert’s qualifications
The usual procedure is for the expert to be considered to be the court’s expert. Assuming that the parties agree that the report be received in evidence, the report is typically deemed to be the expert’s direct testimony, and all parties are allowed to cross examine the expert. However this assumes that the expert will be qualified.
Although it is likely that the court will qualify the expert, if you did not consent to that expert’s being chosen, and you believe that his qualifications and/ or experience are not particularly impressive, you may make a tactical decision to voir dire the witness before agreeing.
Voir dire of expert
Unless you stipulate to qualifications, you are entitled to voir dire the witness on the issue of whether the witness is qualified> if you consent to the expert being qualified you may be precluded from asking him any questions about his training or experience on the basis that you consented to his being qualified.
If the expert supports your client and has superb qualifications it would be a novice error to accept your adversary’s offer to stipulate and forego putting the expert’s CV in evidence and asking him follow up questions about it to establish his preeminence in the field.
Should you agree to have the expert’s report be put into evidence?
Most of the time, the parties agree to the report going into evidence, either as a courtesy to the court, or to avoid spending a lot of time and money to have the expert go through the whole report in his direct testimony, subject to objections, rulings, etc.
However there may be situations where you might want to object to the report going into evidence.
In this regards, the scholarly case of Matter of Lisa W. lays out a masterful exposition of the law, as interpreted by family court Judge Olshansky. The long and short of it is that Judge Olshansky held that the forensic report could come into evidence despite incorporating hearsay statements of collaterals as long as those collaterals were called as witnesses.
Assuming that Judge Olshansky’s analysis is followed by your Judge, it may be that your adversary will be unwilling or even unable to bring these collaterals to court so that the judge will never heard the damaging allegations.
In rare situations the parties may agree that the expert’s report be entered into evidence without requiring the expert to testify.
When I have a report which is favorable to my client I would never agree to just put the report into evidence. The reason for this is that, in my experience, It is always impossible to be 100% sure that the judge has read the entire report carefully, or that the judge will remember everything that was in the report when he makes the final decision.
Cross examination of the court appointed expert
General and specific recommendations for cross examination of evaluator
A forensic psychologist is probably the most difficult type of expert to cross examine. Ideally, you should know as much about psychology as he or she does, which is only going to be possible if you have your own PHD in the field. Also because psychology is not a “hard science”, it is difficult to get a firm “grip” on the witness during cross examination.
As an expert witness, the psychologist will also be allowed to explain all of his answers, creating a risk that any question you ask could be the “one question too many”. What makes it even more difficult is that these experts have testified many times before and are familiar with cross examination techniques.
Because of the inherent difficulty of cross examination of this type of witness and the risk of asking the “one question too many”, consider writing out all cross examination questions in advance, even if you have tried many child custody cases before.
Do you know what a mental status evaluation is? Do you know the difference between a personality disorder and a feature of a personality disorder? Do you know how personality disorders affect parenting capacity, and what is the prognosis is for treatment of them? How much do you know about early child development?
Are you familiar with the drawbacks of the Minnesota Multiphasic Personality Inventory Test (commonly called the “MMPI”)? What issues does this test have in respect to validity?
If you don’t have good answers to these questions, you probably shouldn’t be cross examining a forensic psychologist or psychiatrist unless you can get up to speed.
The ideal cross examination would be to propose a hypothetical question,that you will be able to connect up, which the expert concedes would, if proven, change his recommendation. This is as rare as a “hole in one” in golf.
However, sometimes the expert gets sloppy and might not even proofread his report, especially as to dates of events (i.e. report has wrong date of birth of child, child born way over a year after the report says they separated.
Perhaps the report shows that the expert did not follow up as to contradictions between “facts” asserted by a party and the other party or collateral witnesses, especially that party’s collateral witnesses.
If, as sometimes happens, the report is somewhat out of date by the time the expert commences his testimony, and there have been significant events that have happened in the case subsequent to the date of the report, you could either ask for an updated report before having the witness testify (which may require a written motion).
Alternatively you can cross examine the expert by asking him hypothetical questions based upon these events.
Pointing out that the expert did not administer psychological tests in this case, when he administers them in most other cases, or if the expert did not ask one of the parties about possible mental health hospitalization or treatment, can be also helpful when evidence of same is present in the report See discussion about using the DSM 5 to cross examine the witness, below.
Likewise, if your client has told the forensic expert that the other party has had psychiatric hospitalizations, is taking or has taken psychiatric medication in the past, and this is not even mentioned in the report, this would be a glaring omission on the part of the expert, if the notes show that these issues were brought up. .
In general, questions about what the expert didn’t do, i.e. administer psychological tests, make a diagnosis, visit both parents’ homes, speak with obvious collaterals such as the child’s therapist or teacher, are low risk questions, that, assuming the expert did not do a really through job, can do some damage.
Impeachment by learned treatises
A “learned treatise” is a written work that is generally accepted as authoritative by experts in the field. Usually, you will have to get the evaluator to admit that the work is generally accepted for you to be able to use it to cross examine the witness.
If the expert has written or edited any books, you should obtain copies of same for cross examination. As to his own books or articles, you should have no problem using them or portions of them for cross examination.
As to books that he has edited, it is likely that he will admit that the book that he himself edited is an authoritative work. As to books and articles by other experts, some witnesses will refuse to agree that any other texts are “authoritative”.
There are some cases however that allow a treatise to be used for cross examination if the expert only admits that it is a text that he sometimes refers to, or that he owns a copy of it and keeps it in his office.
Assuming the proper foundation is laid you can read from the text and ask him if he agrees or disagrees with what you have just read. The treatise itself is not supposed to be received in evidence.
Impeachment using the DSM
If you are going to try a case where there have been forensic evaluations and the expert witness is going to testify, you should be very familiar with the Diagnostic Statistical Manual, commonly called the “DSM”. The DSM is currently in version number 5.
Although there is some controversy among some psychologists about the DMS, virtually all clinical and forensic psychologists and psychiatrists use it, and it is also used by health insurance companies in deciding coverage of treatments of mental conditions.
The DSM is almost universally considered to be an expert treatise, which means that you should not be allowed to put it, or portions of it, in evidence using your own witness, but it can be used to impeach the court’s expert, if the expert admits (which he almost certainly will) that the DSM is an authoritative text used in the field and the DSM arguably contradicts his methodology, recommendations, or conclusions.
For example, assume that the expert did not make a diagnosis of either parent and did not administer psychological tests. When cross examined such a witness would probably claim that there were no real signs of any mental illness.
The DSM spells out what types of behavior are signs of various psychological conditions. For example, the DSM may make a diagnosis of a certain personality disorder if 3 types of behaviors have taken place.
One type of behavior might be reckless behavior. This allows questions such as ” doesn’t the father’s having unprotected sex with prostitutes in Las Vegas constitute an example of reckless behavior? (This example comes from one of my actual cases).. Isn’t reckless behavior one of the factors that the DSM uses to diagnose x personality disorder?”
In a recent case I was successful in getting the psychologist, who has an excellent reputation and I have used as my own peer review expert several times, to admit on cross examination that, in retrospect, he probably should have done psychological testing.