Neutralizing the So-Called Neutral

Your most immediate resource for the information needed for an accurate assessment is your client. Interview your client several times: first without taking notes and again, within a day or so. This second interview should preferably be conducted by staff, so that you can compare and contrast the information and share impressions. Then, discuss those differences in a subsequent meeting with your client a short time later. Your client will feel more comfortable expressing herself in more realistic terms using this process, than if you simply try to gather a comprehensive profile in the first meeting. When interviewing family and friends, it is helpful to stress the importance of depicting the complete characterization of your client that the guardian ad litem, custody evaluator, and, ultimately the judge, will “see.” Again, multiple sessions with the lawyer and staff will gain you a more meaningful assessment.

Identify Issues

One technique that helps to identify the issues is to ask your client (and new spouse/significant other) three questions. In the first session, ask what the other parent would say about him or her, if that parent were sitting there in the interview. Then ask him or her to describe the opposing party in three words. Finally, ask what he or she would change in his or her relationship with each child. The response you get is usually very telling.

Review Records

Gather existing records from previous court matters, paying close attention to any reports from neutrals or experts. Probation records, previous medical, treatment and counseling records are valuable. If they exist, the CE/GAL will most likely consider them. Consequently, it is better to incorporate them “as is” into your approach to the neutral.

Present Information

The CE/GAL is typically looking at two very distinct areas, when assessing a custody case: 1) the external factors that contribute to the “quality of the living situation” (Ackerman MJ, Kane AW: Psychological Experts in Divorce, Personal Injury, And Other Civil Actions, Vol. 1. Hoboken, NJ: Wiley Law; 1990:2-7). These include educational factors, financial, legal, work-related and religious matters; and 2) the internal factors that affect physical and mental health (Shuman DW: Psychiatric and Psychological Evidence, Edn. 2. Dayton, OH: Shepard's; 1994:106). These include physical health, chemical dependency and addiction and psychological disorders (ie, depression, etc.). How these internal and external considerations affect your client's interpersonal relationships is what is being assessed.

Although these factors sometimes overlap, understanding and emphasizing the different criteria that are involved in a neutral assessment conducted within these two very different areas is crucial when approaching evaluation, and even more so when confronting an adverse report by the CE/GAL.

Your objective is to identify and enhance – not to exaggerate – distinctions, especially in areas of overlap, eg, depression that can be controlled, so as to minimize its impact on parenting; addiction to or abuse of prescribed medications that did not result in absenteeism from parenting.

In order to do this, you must include both the positives and negatives about your client's case in your initial affidavits and in your conversations and correspondence with the CE/GAL. For example, if a client is suffering from depression, describing the impact it has had on his or her behavior (ie, wandering the malls, not getting out of bed in the morning, self-medicating to the point of substance abuse, etc.) is necessary to redirect the neutral's attention to the clinical aspects of the condition. Only then will the neutral look at corrective measures and subsequent improvements (ie, treatment, counseling, new medication regimen, parenting skills classes, etc.), that your client has made or is willing to make. Have your client create a plan for improvement, with the new spouse/significant other, family members and counselors being involved in creating the plan. Then describe it to the neutral.

The quality of the neutral's involvement is dependent on a number of factors. The external and internal issues presented will largely determine whether the expertise needed will be that of psychologist, a social worker or guardian ad litem. But because of the cost factor, the expertise used may be different from that which is needed. Where a social worker's skill may be what the case calls for, a CE with a degree in psychology may be what is ordered. Or, in many cases, a GAL may be all that is available in a custody case that really needs a psychologist. Not only is there a considerable difference between these experts in terms of the scope and value of their evaluation/examination, but more importantly to the lawyer, in the methods they use in gathering the information relied upon in their determination. Social workers may have to rely on an accumulation of evidence, some of which has slight probative value. Some situations of children and families do not yield clear legal evidence, and yet they must be served by a social agency. Because the questions at issue in such cases are often not simple, social workers, in attempting to apply the least intrusive intervention, may rely on a variety of information, some of which is hearsay evidence or other information acquired informally. In such cases they look for repeated patterns of parent and child behavior and environmental influences. Downs S et al.: Child Welfare Policies and Practice. Boston: Pearson Allyn & Bacon; 1991:96. It is important to identify the differences, in preparing to meet the GAL/CE's opinion head-on.

At the first instance that you determine that the neutral is not fully understanding or giving fair consideration to your client's condition, bring a motion seeking to have the test results, evaluations and reports of your client's own treating experts considered by the CE/GAL, and include in your motion a request that the CE/GAL obtain independent tests and evaluations of a similar nature.

Conclusion

Whatever results from the motion, you have just raised the bar and highlighted the issues that you want spotlighted. Generally, information subsequently provided to the neutral will be made part of any report and may have a significant impact. You will also benefit if it leads to a professional exchange between the CE/GAL and your client's treating professional about your client's personality traits (that may have previously been misinterpreted), and possibly reinforcement of positive attributes. Such inclusion gives you a great opportunity to cross-examine the CE/GAL about any favorable information/opinions/remarks discussed, but that are left out of their report or recommendation.

In terms of the art world, a designer “tames the material to an application.” That is exactly analogous to the lawyer's purpose when a Custody Evaluator or Guardian Ad Litem (CE/GAL) is brought into a case. Using certain practice and trial techniques, you can minimize the negative impact of a report from a “less-than-neutral” CE/GAL in a custody dispute. Obviously, your work starts long before the CE/GAL writes his or her report. When the decision is made to involve a CE/GAL, you need to be one step ahead in determining what he or she will be looking for. It is crucial that you perform an early appraisal of the critical issues in the case, including an honest assessment of both parents – and children – and the evidentiary strengths and weaknesses in your case regarding these issues. In essence, be ready with an advance sheet on which you would like the neutral to focus and be realistic about what he will likely see.

Gather Information

Conduct Interviews

Your most immediate resource for the information needed for an accurate assessment is your client. Interview your client several times: first without taking notes and again, within a day or so. This second interview should preferably be conducted by staff, so that you can compare and contrast the information and share impressions. Then, discuss those differences in a subsequent meeting with your client a short time later. Your client will feel more comfortable expressing herself in more realistic terms using this process, than if you simply try to gather a comprehensive profile in the first meeting. When interviewing family and friends, it is helpful to stress the importance of depicting the complete characterization of your client that the guardian ad litem, custody evaluator, and, ultimately the judge, will “see.” Again, multiple sessions with the lawyer and staff will gain you a more meaningful assessment.

Identify Issues

One technique that helps to identify the issues is to ask your client (and new spouse/significant other) three questions. In the first session, ask what the other parent would say about him or her, if that parent were sitting there in the interview. Then ask him or her to describe the opposing party in three words. Finally, ask what he or she would change in his or her relationship with each child. The response you get is usually very telling.

Review Records

Gather existing records from previous court matters, paying close attention to any reports from neutrals or experts. Probation records, previous medical, treatment and counseling records are valuable. If they exist, the CE/GAL will most likely consider them. Consequently, it is better to incorporate them “as is” into your approach to the neutral.

Present Information

The CE/GAL is typically looking at two very distinct areas, when assessing a custody case: 1) the external factors that contribute to the “quality of the living situation” (Ackerman MJ, Kane AW: Psychological Experts in Divorce, Personal Injury, And Other Civil Actions, Vol. 1. Hoboken, NJ: Wiley Law; 1990:2-7). These include educational factors, financial, legal, work-related and religious matters; and 2) the internal factors that affect physical and mental health (Shuman DW: Psychiatric and Psychological Evidence, Edn. 2. Dayton, OH: Shepard's; 1994:106). These include physical health, chemical dependency and addiction and psychological disorders (ie, depression, etc.). How these internal and external considerations affect your client's interpersonal relationships is what is being assessed.

Although these factors sometimes overlap, understanding and emphasizing the different criteria that are involved in a neutral assessment conducted within these two very different areas is crucial when approaching evaluation, and even more so when confronting an adverse report by the CE/GAL.

Your objective is to identify and enhance – not to exaggerate – distinctions, especially in areas of overlap, eg, depression that can be controlled, so as to minimize its impact on parenting; addiction to or abuse of prescribed medications that did not result in absenteeism from parenting.

In order to do this, you must include both the positives and negatives about your client's case in your initial affidavits and in your conversations and correspondence with the CE/GAL. For example, if a client is suffering from depression, describing the impact it has had on his or her behavior (ie, wandering the malls, not getting out of bed in the morning, self-medicating to the point of substance abuse, etc.) is necessary to redirect the neutral's attention to the clinical aspects of the condition. Only then will the neutral look at corrective measures and subsequent improvements (ie, treatment, counseling, new medication regimen, parenting skills classes, etc.), that your client has made or is willing to make. Have your client create a plan for improvement, with the new spouse/significant other, family members and counselors being involved in creating the plan. Then describe it to the neutral.

The quality of the neutral's involvement is dependent on a number of factors. The external and internal issues presented will largely determine whether the expertise needed will be that of psychologist, a social worker or guardian ad litem. But because of the cost factor, the expertise used may be different from that which is needed. Where a social worker's skill may be what the case calls for, a CE with a degree in psychology may be what is ordered. Or, in many cases, a GAL may be all that is available in a custody case that really needs a psychologist. Not only is there a considerable difference between these experts in terms of the scope and value of their evaluation/examination, but more importantly to the lawyer, in the methods they use in gathering the information relied upon in their determination. Social workers may have to rely on an accumulation of evidence, some of which has slight probative value. Some situations of children and families do not yield clear legal evidence, and yet they must be served by a social agency. Because the questions at issue in such cases are often not simple, social workers, in attempting to apply the least intrusive intervention, may rely on a variety of information, some of which is hearsay evidence or other information acquired informally. In such cases they look for repeated patterns of parent and child behavior and environmental influences. Downs S et al.: Child Welfare Policies and Practice. Boston: Pearson Allyn & Bacon; 1991:96. It is important to identify the differences, in preparing to meet the GAL/CE's opinion head-on.

At the first instance that you determine that the neutral is not fully understanding or giving fair consideration to your client's condition, bring a motion seeking to have the test results, evaluations and reports of your client's own treating experts considered by the CE/GAL, and include in your motion a request that the CE/GAL obtain independent tests and evaluations of a similar nature.

Conclusion

Whatever results from the motion, you have just raised the bar and highlighted the issues that you want spotlighted. Generally, information subsequently provided to the neutral will be made part of any report and may have a significant impact. You will also benefit if it leads to a professional exchange between the CE/GAL and your client's treating professional about your client's personality traits (that may have previously been misinterpreted), and possibly reinforcement of positive attributes. Such inclusion gives you a great opportunity to cross-examine the CE/GAL about any favorable information/opinions/remarks discussed, but that are left out of their report or recommendation.