Challenging the Forensic Psychiatrist's Report

In most cases where a court rejects the recommendation of a psychological expert, it does so by making its own independent determination as to where custody should lie. In Matter of T.H., supra, in addition to rejecting the custody recommendation of the court-appointed psychiatrist, the court rejected the recommendation of the court-appointed psychologist (a second expert) that the mother should retain custody of the parties' child only if she remained in New York. In that case, both parties were seeking custody of a child they had been raising in New York. In making its final determination, the court determined that both parties were fit parents, though neither was perfect, and found that it was in the best interest of the child, based on the totality of the evidence, that custody be awarded to the mother. The court noted that the mother had no interest in excluding the father from the child's life and was also more capable of nurturing the child and offering emotional support, according to the psychologist. The court also rejected the law guardian's recommendation for joint custody and primary residence with the father.

In Forzano v. Scuderi, 224 A.D.2d 385, 637 N.Y.S.2d 767 (2d Dept. 1996), the court awarded sole custody in a divorce proceeding to the mother, against the court-appointed psychiatrist's recommendation in favor of joint custody, stating that the court “is not required to follow the recommendation of an expert it has appointed.” The court made its own determination that joint custody was not tenable because of the antagonism of the parties. It also found that both were fit and able parents but, although both parties worked full-time, the wife had been the child's primary caretaker since birth, assuming the bulk of the duties, including hiring, training and supervising the nanny. The court also found that the record reflected the wife's compliance with the terms of the husband's visitation.

In another Second Department case, Alanna M. v. Duncan M., 204 A.D.2d 409, 611 N.Y.S.2d 886 (2d Dept. 1994), the court again rejected the court-appointed psychiatrist's recommendation that sole custody be awarded to the mother in a divorce proceeding. The expert had concluded that both parties were fit parents, and described the question of who should be awarded custody as a relatively even call. The court considered that the children had been residing with the father for over 2 1/2 years, pursuant to the parties' own agreement, and disagreed with the expert's opinion that the son's problems were related to the father's parenting. Instead, the court determined on its own that the cause of the child's problems was the parties' acrimonious divorce.

Some courts have indicated a willingness to reject the recommendation of neutral forensic experts, weighing the evidence on their own to make a custody determination.

For example, courts have rejected neutral expert testimony they have found unpersuasive in favor of other experts who testified in the case. In State ex rel. H.K. v. M.S. 187A.D.2d50, 592 N.Y.S.2d708 (1st Dept 1993) the First Department rejected various expert testimony it determined to be not credible. There, the parties had agreed on joint custody, the mother having physical custody and the father exercising daily visitation. Due to circumstances not relevant here, the parties ended up in a custody dispute that resulted in a long trial. In affirming an award of sole custody to the mother, the appellate court noted that the trial court was free to reject the recommendation of the court-appointed neutral expert, as well as experts who testified on the father's behalf, and credit the mother's experts. The court, in determining that the mother was a more fit parent, noted that the expert testimony rejected by the court was “seriously undermined on cross examination.” See also, Merl v. Merl , 128 A.D.2d 685, 513 N.Y.S.2d 184 (2d Dept. 1987) (court rejected court-appointed expert's recommendation with regard to custody in favor of the recommendation of the psychiatrist for one of the parties who had treated both parties and their child, to various degrees, for 8 years).

In other cases, courts have rejected expert testimony where the court believed it was based on incorrect or unreliable information. In Darema-Rogers v. Rogers , 199 A.D.2d 456, 606 N.Y.S.2d 15 (2d Dept. 1993), the court rejected the testimony of two psychological experts in declining to transfer custody from the mother to the father. The court noted that the expert recommendation was based largely on the expressed preference of one of the children, a 12-year-old, who should not have been determining custody for herself and her younger sister. The court determined that both were fit and loving parents, but it was “reluctant to transfer custody of young children.” Likewise, in Frank R. v. Deborah Ann R. , 204 A.D.2d 615, 612 N.Y.S.2d 78 (2d Dept. 1994), the court granted custody to the father against the recommendation of the court-appointed psychologist because the psychologist's report was based on faulty information. In that case, the mother had misrepresented to the psychologist that she would remain in her current residence, when there was actually only a slim chance of that, and the psychologist was not made aware of other important factors bearing on the mother's fitness. Similarly, the court in Edgerly v. Moore , 232 A.D.2d 214, 647 N.Y.S.2d 773 (1st Dept. 1996), rejected an independent expert's valuation because it was based on a concern that was “factually faulty.” In Matter of T.H. , 11/21/97 N.Y.L.J. 34, (Col. 5) (Fam. Ct. Westchester Cty.), the court rejected the court-appointed psychiatrist's recommendation that custody be awarded to the father where the psychiatrist based the recommendation in part on documentation that had not been admitted into evidence.

In most cases where a court rejects the recommendation of a psychological expert, it does so by making its own independent determination as to where custody should lie. In Matter of T.H., supra, in addition to rejecting the custody recommendation of the court-appointed psychiatrist, the court rejected the recommendation of the court-appointed psychologist (a second expert) that the mother should retain custody of the parties' child only if she remained in New York. In that case, both parties were seeking custody of a child they had been raising in New York. In making its final determination, the court determined that both parties were fit parents, though neither was perfect, and found that it was in the best interest of the child, based on the totality of the evidence, that custody be awarded to the mother. The court noted that the mother had no interest in excluding the father from the child's life and was also more capable of nurturing the child and offering emotional support, according to the psychologist. The court also rejected the law guardian's recommendation for joint custody and primary residence with the father.

In Forzano v. Scuderi , 224 A.D.2d 385, 637 N.Y.S.2d 767 (2d Dept. 1996), the court awarded sole custody in a divorce proceeding to the mother, against the court-appointed psychiatrist's recommendation in favor of joint custody, stating that the court “is not required to follow the recommendation of an expert it has appointed.” The court made its own determination that joint custody was not tenable because of the antagonism of the parties. It also found that both were fit and able parents but, although both parties worked full-time, the wife had been the child's primary caretaker since birth, assuming the bulk of the duties, including hiring, training and supervising the nanny. The court also found that the record reflected the wife's compliance with the terms of the husband's visitation.

In another Second Department case, Alanna M. v. Duncan M. , 204 A.D.2d 409, 611 N.Y.S.2d 886 (2d Dept. 1994), the court again rejected the court-appointed psychiatrist's recommendation that sole custody be awarded to the mother in a divorce proceeding. The expert had concluded that both parties were fit parents, and described the question of who should be awarded custody as a relatively even call. The court considered that the children had been residing with the father for over 2 1/2 years, pursuant to the parties' own agreement, and disagreed with the expert's opinion that the son's problems were related to the father's parenting. Instead, the court determined on its own that the cause of the child's problems was the parties' acrimonious divorce.