This article is intended to be a resource for New York attorneys who do not consider themselves to be experts in handling cases where there has been or is going to be, an evaluation by a child custody forensic expert. Such experts are usually licensed psychologists, or licensed psychiatrists (occasionally courts will use licensed social workers). 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, even if you are one of the very rare pro se litigants who is able to do a decent job trying your own custody case, reading this guide will almost certainly not be enough to prepare you for dealing with this type of witness, should his report and recommendations be against you. If you cannot afford to hire an attorney to take over your case, you may be able to hire either an experienced family law attorney or a forensic evaluator to consult with.
WHAT IS THE PURPOSE OF A FORENSIC CUSTODY EVALUATION?
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 make decisions about the child or children’s welfare.
These kinds of issues can be very complex and can involve issues of the fitness of the parents, as well as the psychological well being of the child or children. The court will usually try to make these kinds of important issues after obtaining as much information as possible, which can include the input of trained mental health experts.
In New York State these experts, usually licensed psychologists or psychiatrists, are often referred to as court appointed neutrals, which emphasizes there role as independent experts working for the court and not for either of the parties.
DO YOU REALLY WANT A FORENSIC EVALUATION?
Reasons why the court might want a forensic:
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:
1) To show mental illness when you suspect the other parent has it, but there is no proof, i.e. No known psychiatric hospitalizations.
2) Where mental illness exists in the other parent, to have the expert testify to how it impacts parenting ability.
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 drug or alcohol abuse or domestic violence on the child or children, and/ or on parenting ability.
5) To prove parental alienation.
6) To make a record which is impervious on appeal.
Reasons to avoid a forensic
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. See the Lisa Kaye case, where 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.
3) To avoid cost and delay. Forensic 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 EVALUATION IF YOU REQUEST ONE?
The decision as to whether or not to appoint a forensic evaluator is in general within the court’s discretion. It can be an abuse of discretion to deny the request where there is evidence (and maybe even allegations) of mental illness, drug or alcohol abuse, or domestic violence. However the use of forensic evaluators is customary in “big money” cases, especially on the initial case (as opposed to modification cases) where typically all attorneys will consent to having a forensic, although they may disagree as to which evaluator to use.
ISSUES TO BE ADDRESSED BY EVALUATOR / INSTRUCTIONS IN THE ASSIGNMENT ORDER
For the last several years, courts have been issuing fairly detailed assignment orders when they order forensics. There does not appear to be any universally followed or standard order, although most are similar to one another. Attorneys should offer input to the court as to what they want to be in the assignment order.
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 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 reflects the agreement or the court’s expressed wishes.
Nowadays the court will usually ask the parties 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).
RECOMMENDATIONS OR NO RECOMMENDATIONS?
Historically, forensic experts were always asked to make recommendations in custody cases. 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. Nowadays most courts favor recommendations, although it is possible that a court could be convinced to authorize reports without recommendations. You might want to push for a “no recommendations” report in the appropriate case.
Interestingly, an evaluator who makes a recommendation of custody for one parent over the other is in essence making a prediction that it would be in the best interests of the child or children to have that parent be the primary custodian. However, you should be aware there have been very few studies in the psychological literature, that the recommendations of evaluators are likely to result in a greater percentage of positive outcomes.
This is due to the fact that there have been very few follow up studies done to evaluate what happened with the children after the court’s orders were granted, and there is not even a consensus about what criteria to use in deciding the criteria for positive outcomes. For example assume that a child does very well in school after a change of custody but has fewer friends, is this considered to be a positive outcome or a negative outcome?
Most evaluators will admit all of this on cross examination. If they do not, I would challenge them to give details as to studies in the psychological literature that say that evaluators make good predictors of future outcomes and ask them if there is a consensus on what constitutes a positive outcome.
CONSENT TO HAVE THE JUDGE READ THE 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 AN EVALUATOR
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 loosing 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 YOUR 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.
Some attorneys have assisted litigants to “game” the MMPI personality test commonly used in forensic custody evaluations. This is, at the very least, highly problematical.
You may also wish to counsel your client about avoiding written or email communications with the expert as these could be deemed to be “documents” that you may be required to exchange with the other side.
DOCUMENTS TO BE PROVIDED TO THE EXPERT
The assignment order may require that all documents that are provided to the expert by counsel be exchanged within x number of days, without specifying that documents provided by parties themselves be exchanged. In either case, attorneys should give sufficient thought to what documents to furnish to the expert, keeping in mind that if they are required to be exchanged, providing copies before the trial destroys their use as surprise tactics.
You should counsel your client not to provide any documents to the expert without discussing them with you, as these usually become available to the other side, and can sometimes hurt your case instead of helping it.
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 photographs, etc, and this evidence will be reflected or even sited in the expert’s report and will be seen by the judge.
It is customary to supply the evaluator with copies of orders, court ordered investigations, and other documents which have been filed with the court or are in the court file. Consider either you or your client organizing documents into demonstrative displays, charts, calendars, etc.
YOU HAVE RECEIVED A COPY OF THE 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 (however the notes are sometimes almost completely illegible).
With sufficient experience you will be able to determine whether the expert “got it right” or “got it wrong”. Although your ethical duties towards your client are the same in either case, 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 possible disqualification of the expert, or hiring your own expert to rebut the court appointed expert. With experience you will have a very good idea as to how thorough a job the evaluator did, and if he followed the appropriate protocols.
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 each other?
Were any psychological tests administered? If not, should they have been? Do the conclusions and recommendations follow from the “facts” cited?
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. Also there is a difference of opinion between psychologists as to whether or not their own ethical rules prohibit them from assuming the “dual role” of being a consulting expert and a testifying witness.
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 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 you disqualification Motion.
If you have found reported cases where courts are sharply critical of an evaluator, these can also be attached as exhibits to your motions.
APA GUIDELINES FOR CHILD CUSTODY EVALUATION IN DIVORCE PROCEEDINGS
In 1994 American Psychological Association developed the Guidelines for Child Custody Evaluations in Divorce Proceedings. The Guidelines are not meant to be mandatory, but instead are meant to facilitate the “continued systematic development” of forensic psychology and ensure a high level of practice by forensic psychologists.
Even though these 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. 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 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 documentary evidence.
You should anticipate typical cross examination questions of your peer review expert, should you choose to call him at trial, by providing your expert with as much information and documents as possible and preparing him for typical questions as “you did not interview the child did you?” with an answer such as “I would certainly have done so but there was no consent and I wasn’t allowed to”. This type of preparation is usually unnecessary when the expert has been doing forensic cases for a long time.
Ideally you would want to order the transcript of the testimony of the court appointed expert and receive same in time to give it to your own expert prior to his own testimony. 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.
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).
TAKING THE EXPERT’S TESTIMONY OUT OF TURN
The usual procedure is that the forensic expert testifies as the first witness at the trial, either on consent, or according to the court’s direction. The advantage for the court of having the expert go first is that may encourage a settlement. However if the report is unfavorable for your client you may not want to have the expert go first.
If you are the petitioner or plaintiff you would be normally be putting on your case first and would normally be allowed to decide the order of your witnesses, however the court does have the authority to override your choice, subject to abuse of discretion.
One of the problems in having the expert go first is that many of the questions asked, will be hypotheticals subject to connection, and the court may not allow them (although you should be allowed to make an offer of proof as to the connecting evidence you plan to supply later), while if the court has already heard the connecting evidence, they should, and likely will, allow the questions.
Also, in a complex trial where hypothetical questions are allowed subject to connection it is also often difficult to keep track of whether or not the connections was made. This can raise appellate issues after the case is over.
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 de novo determination that there has been evidence of a sufficient change in 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, courts may refuse to allow testimony from witnesses or cross examination questions as to events that predate the prior order custody order.
Although theoretically the court could conduct a bifurcated trial, which means that the first part of the trial would deal exclusively with the issue of change in circumstances, in practice this is rarely done. This raise the issue that the forensic expert’s report and testimony are almost always based upon best interests and typically include allegations of incidents and events that precede the last order, but the court may still try to preclude you from asking cross examination questions about portions of the report that make out such allegations.
This is another reason why it might make more sense not to call the expert until after the court has made a finding that there has been a change of circumstances and is prepared to go to best interests. Another solution in certain situations is to stipulate that there has been a change of circumstances, (i.e. that the joint custody order is not working). Such a stipulation could be appropriate where both parents are looking to change the prior order.
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 appointed, and you believe that his qualifications and/ or experience are not particularly impressive, you may make a tactical decision to refuse to agree to his or her qualification pending your voir dire.
VOIR DIRE OF EXPERT
Unless the parties stipulate to qualifications, you are entitled to voir dire the witness on the issue of whether he or she is qualified as an expert witness. If you just consent to the expert being qualified you may be precluded from asking questions of about his training or experience.
On the other hand, if you have found reported cases where judges have written opinions which are highly critical of the evaluator, you may cross examine the evaluator about these during your voir dire.
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 REPORT 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.
In rare situations the parties may agree that the expert’s report be entered into evidence without requiring testimony. This is most likely in cases were the expert does not make any recommendations, or possibly where there is a peer review expert with a report, and the parties wish to save time and money.
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 avoids questions about whether or not the judge has read the entire report carefully, and if the judge will remember everything that was in the report when he makes the final decision.
CROSS EXAMINATION OF THE COURT APPOINTED EXPERT
WHO “GOES FIRST”?
It is usually a slight but measurable tactical advantage to have your adversary cross examine first. If you are the petitioner or plaintiff you will usually be expected to go first, however if the expert’s testimony is taken out of turn without your consent, you have an argument that the adversary should go first, especially if your adversary put the expert witness on his witness list (and you did not).
GENERAL AND SPECIFIC CONSIDERATIONS
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 psychology is not a “hard science”, which makes it difficult to get a firm “grip” on the witness during cross examination. As an expert witness, the psychologist will almost certainly be allowed to explain all of his answers, creating a risk that any question you ask could be the “one question too many”.
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 hundreds of 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, and what is the prognosis is for treatment of them? Are you familiar with the drawbacks of the Minnesota Multiphasic Personality Inventory Test (commonly called the “MMPI”)?
If you don’t, you probably shouldn’t be cross examining a forensic psychologist or psychiatrist and you probably have to get up to speed.. fast, or else you probably need to hire someone to at least help you, if not conduct the cross examination for you.
The ideal cross examination would be to propose a hypothetical question,that you will be able to connect up, which the expert will concede 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 proof read 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 parties says they separated, or 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 etc).
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 ( See discussion about using the DSM 5 to cross examine the witness, below) 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
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 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 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, upwards of 90 % of 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 certainly is 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 put in evidence as part of your impeachment of the court’s expert, if the expert admits (which he almost certainly will) that the DSM is an authoritative text used in the field.
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 behavior 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?
Positive answers to these type of questions can then allow you to ask the expert to admit that psychological tests are often used by psychologists to suggest hypotheses that may include mental health diagnoses, and in fact are commonly used to diagnose mental health issues.
The knockout blow could be something like this “Doctor, since there were numerous signs of mental disorder for the mother (or father), but you chose not to ask her about her mental health history, or administer psychological tests, is it possible that you didn’t administer the tests because you were afraid you might find something?”
Although the expert is unlikely to admit that he was afraid of finding something, this question could make him look really bad.
In a recent case I was successful in getting the psychologist, who has an excellent reputation and I have used as my peer review expert several times, to admit on cross examination that, in retrospect, he probably should have done psychological testing.