How to Challenge the Forensic Psychiatrist's Report

Envision the following scenario, which is not necessarily commonplace, but not unheard of, either: Your client, the mother of a 9-year-old girl and two boys, aged 2 and 5, has been married for 14 years, most of them unhappy. Your client has been struggling with, and is being treated for, a series of psychological problems, including bipolar disorder, suicidal ideation and post-partum trauma disorder. The client has been a stay-at-home mother, attending to the demands of three children with busy schedules. Her marital problems have increased dramatically since the birth of the youngest child, to the point where she now believes the domestic discord is detrimental to her own as well as to her children's emotional well-being.

Your client and her husband have fundamentally different philosophies on child rearing and have had a series of disputes on such crucial issues as psychiatric treatment and the correct medication for their daughter. This history forms the basis of your client's belief that joint decision-making with her husband is not viable and that sole legal custody is the only option. Furthermore, your client, while not wishing to cut the father out of the children's lives, is willing to offer him 'garden-variety' visitation of alternating weekends and one mid-week dinner, but she firmly believes the children should reside primarily with her in her home, particularly during the school week. Noting that the issues of custody and visitation are marked 'unresolved,' at the preliminary conference, the judge appoints both a law guardian to act as the children's advocate, and a forensic psychiatrist to meet and evaluate the family and make a recommendation regarding legal and physical custody.

Notwithstanding your advice regarding the risks attendant to litigation, in moving
forward with the divorce, the possibility of losing legal and physical custody of her children is the last thing on your client's mind.

The Expert's Recommendations

After several meetings, extensive interviews, and psychological testing of the family members, the court-appointed forensic psychiatrist recommends ' much to your client's chagrin ' that in his professional opinion, 'The father should be awarded sole custody of the minor children and should resume residence in the marital home with the children. The father should financially support the mother, who should live in an appropriate residence nearby (possibly swapping living arrangements). The mother should be apprised of all significant events in her children's lives, and be allowed to give her input into the decision-making process, with the full realization that the father retains final decision-making authority.'

The psychiatrist further recommends that the mother be allowed to have almost-daily weekday, daytime contact with her children as long as they
are not attending camp, preschool, school, or other organized activities. She should also be allowed to let the children sleep over at her residence on alternating weekends. Vacations, holidays, and special events should be alternative. The children should not be away from either parent for longer than 1 week at a time, until the youngest child is at least 7 years of age.

'The father should enter into psychotherapy to learn how to develop a more balanced view of life,' says the psychiatrist's report. 'More importantly, he needs to learn how to recognize and deal directly with negative events and interactions without having to resort to self-medication with alcohol. He should employ a child-care provider to take care of the children when he is at work and his wife is unable to care for the children.'

Needless to say, your client is devastated by the report. You and your client have discussed the importance and weight given to the forensic psychiatrist's report in a contested custody proceeding in the context of the ultimate decision as to whether to pursue at trial a position in direct contradiction to the recommendations contained in the report.

The following discussion might be helpful in making your and your client's extremely difficult decision.

Consideration of the Report

Reports by court-appointed experts are generally considered probative but not determinative. The New York Court of Appeals has stated that experts' reports 'are only aids to the court [in custody matters] and, if not woven into the fabric of the record, should not form the basis for the decision.' Kessler v. Kessler, 10 N.Y.2d 445 (1962). And many courts have stated that expert testimony may be rejected by the trial court 'if it is improbable, in conflict with other evidence or otherwise legally unsound.' Desnoes v. State of New York, 100 A.D.2d 712, 474 N.Y.S.2d 602 (3d Dept. 1984); State of New York ex rel v. H.K. v. M.S., 187 A.D.2d 50, 592 N.Y.S.2d 708 (1st Dept. 1993); Edgerly v. Moore, 232 A.D.2d 214, 647 N.Y.S.2d 773 (1st Dept. 1996). The fact that the expert was appointed by the court 'does not, in any way, require that the court accept the opinion of that expert.' State ex rel. H.K. at 711. Furthermore, the court may not delegate its power to decide custody to the expert and must base its decision on the record as a whole. Hennelly v. Viger, 198 A.D.2d 224, 603 N.Y.S.2d 168 (2d Dept. 1993).

However, two cases may be read as giving greater weight to expert reports in custody determinations than had previously been thought to have been the case. These decisions may produce a chilling effect on judges who may otherwise have felt free to disregard the recommendation of an expert. See Rentschler v. Rentschler, 204 A.D.2d 60, 611 N.Y.S.2d 523 (1st Dept. 1994) and In the Matter of Rebecca B., 204 A.D.2d 57, 611 N.Y.S.2d 831 (1st Dept. 1994). In Rentschler, the Appellate Division, First Department, reversed an award of custody to the mother. That decision was made by the trial judge against the advice of the court-appointed psychiatrist. In disregarding the expert's report, the lower court had made an independent determination based on all the evidence available to it that custody should be awarded to the mother. The First Department found that the lower court's determination was not warranted by the evidence and noted that there was much support in the record for the expert opinion that custody should be awarded to the father, stating that 'the evaluation by an independent expert should not be readily set aside.'

Likewise, In the Matter of Rebecca B., the Appellate Division, First Department, reversed a lower court denial of a motion by the father to transfer sole legal custody to him where the law guardian and psychiatrist had recommended the transfer be made. There, the clinical director for the Family Court's mental health service met with the child on three occasions for a total of 3 hours, and met with the child and each parent for about 40 minutes.

The expert also met with each parent separately for 7 hours. The expert determined that the father was a less detrimental influence to the child, that the child made clear a preference for living with the father, and that the mother's severe punishment of the child was problematic. Another psychiatrist also recommended the transfer because the mother tried to exclude the father from the child's life. (This potential interference with the relationship between the child and her father seemed to be the most important factor in the appellate court's determination.) In addition, a supervising Legal Aid Society social worker and the law guardian also favored the transfer. Although the psychiatrist for the mother recommended that custody remain with her, that psychiatrist had not spoken with the child or with the child's father. Given all these factors, the appellate court determined that in declining to follow the recommendation of the experts, the trial court's custody award lacked a sound and substantial basis in the record.

In three Second Department cases, the court came to a similar conclusion, reversing the lower court's award of custody that disregarded the expert's testimony and recommendation. See Linda R. v. Richard E., 162 A.D.2d 48, 561 N.Y.S.2d 29 (2d Dept. 1990); Young v. Young, 212 A.D.2d 114, 628 N.Y.S.2d 957 (2d Dept. 1995); and Harvey v. Share, 119 A.D.2d 823, 501 N.Y.S.2d 448 (2d Dept. 1986). In all three cases, the court found that there was no convincing reason not to follow the expert's recommendation. In Linda R. v. Richard E., the court reversed the lower court's determination that custody should lie with the father, finding that the determination lacked a sound and substantial basis in the record. There, both the psychiatric evaluation and the evaluation by the county probation department recommended custody remain with the mother, who had been the children's primary caregiver. Significant in this evaluation was the determination that the mother was substantially less likely to exclude the father from the children's lives.

Similarly, in Young v. Young, the court reversed a lower court custody determination that was contrary to both the court-appointed psychiatrist's and law guardian's recommendations. The court held that expert opinions, though not determinative, were entitled to some weight and should not be disregarded absent some contradiction in the record. Contrary to the lower court's interpretation, the appellate court found that the expert's opinion showed the mother was an unfit parent. In addition, the court found, the lower court relied on the mother's expert, who had only met with the mother and children, and not with the father.

The court in Harvey v. Share reversed the lower court's award of custody to the father, finding that that decision was not supported by the record because the lower court had failed to state any reason for disregarding the collective recommendations of forensics experts and of the law guardian. See also, Muller v. Muller, 221 A.D.2d 635, 634 N.Y.S.2d 190 (2d Dept. 1995) and Fanelli v. Fanelli, 215 A.D.2d 718, 627 N.Y.S.2d 425 (2d Dept. 1995).

In many relocation cases, courts have relied on expert reports in their custody determinations. For example, in Paesch v. Paesch, 130 A.D.2d 798, 514 N.Y.S.2d 824 (3rd Dept. 1987), the child was living with his father during the parties' separation and the father and child moved to Baltimore where the father's family was located. The mother commenced a proceeding to transfer custody. A hearing was held in which a psychiatrist testified that it was in the child's best interest to be near the mother, though both husband and wife were loving and fit parents. The psychiatrist had determined that the relocation and separation from the non-custodial parent created a 'high risk' of psychological problems that would be 'disastrous to the child's well-being.' What was the outcome?

In a more recent Second Department case on relocation, in which the court granted a mother's request to relocate to Washington State, the court permitted the relocation, relying on forensic evaluations, testimony at trial and all the circumstances presented. The court noted the close relationship between the child and its father and provided maximum visitation. See Pardee v. Pardee, 666 N.Y.S.2d 926 (2d Dept. 1998). In Silver v. Silver, 119 A.D.2d 742, 501 N.Y.S.2d 153 (2d Dept. 1986), the court, relying in part on a psychologist's recommendation that the best interest of the children would not be served by absence of contact with their father, transferred custody to the father with reversion back to the mother on her return within a specified time. The psychologist had determined that the mother moved to Utah partly out of frustration and an inability to deal with the father's visitation privileges, which is clearly not the case here. In addition, as the psychologist noted, there would be virtually no regular contact between the children and their father if they remained in Utah. See also, Koons v. Koons, 1994 WL 808603 (Sup. Ct. N.Y. Co. 1994).

Envision the following scenario, which is not necessarily commonplace, but not unheard of, either: Your client, the mother of a 9-year-old girl and two boys, aged 2 and 5, has been married for 14 years, most of them unhappy. Your client has been struggling with, and is being treated for, a series of psychological problems, including bipolar disorder, suicidal ideation and post-partum trauma disorder. The client has been a stay-at-home mother, attending to the demands of three children with busy schedules. Her marital problems have increased dramatically since the birth of the youngest child, to the point where she now believes the domestic discord is detrimental to her own as well as to her children's emotional well-being.

Your client and her husband have fundamentally different philosophies on child rearing and have had a series of disputes on such crucial issues as psychiatric treatment and the correct medication for their daughter. This history forms the basis of your client's belief that joint decision-making with her husband is not viable and that sole legal custody is the only option. Furthermore, your client, while not wishing to cut the father out of the children's lives, is willing to offer him 'garden-variety' visitation of alternating weekends and one mid-week dinner, but she firmly believes the children should reside primarily with her in her home, particularly during the school week. Noting that the issues of custody and visitation are marked 'unresolved,' at the preliminary conference, the judge appoints both a law guardian to act as the children's advocate, and a forensic psychiatrist to meet and evaluate the family and make a recommendation regarding legal and physical custody.

Notwithstanding your advice regarding the risks attendant to litigation, in moving
forward with the divorce, the possibility of losing legal and physical custody of her children is the last thing on your client's mind.

The Expert's Recommendations

After several meetings, extensive interviews, and psychological testing of the family members, the court-appointed forensic psychiatrist recommends ' much to your client's chagrin ' that in his professional opinion, 'The father should be awarded sole custody of the minor children and should resume residence in the marital home with the children. The father should financially support the mother, who should live in an appropriate residence nearby (possibly swapping living arrangements). The mother should be apprised of all significant events in her children's lives, and be allowed to give her input into the decision-making process, with the full realization that the father retains final decision-making authority.'

The psychiatrist further recommends that the mother be allowed to have almost-daily weekday, daytime contact with her children as long as they
are not attending camp, preschool, school, or other organized activities. She should also be allowed to let the children sleep over at her residence on alternating weekends. Vacations, holidays, and special events should be alternative. The children should not be away from either parent for longer than 1 week at a time, until the youngest child is at least 7 years of age.

'The father should enter into psychotherapy to learn how to develop a more balanced view of life,' says the psychiatrist's report. 'More importantly, he needs to learn how to recognize and deal directly with negative events and interactions without having to resort to self-medication with alcohol. He should employ a child-care provider to take care of the children when he is at work and his wife is unable to care for the children.'

Needless to say, your client is devastated by the report. You and your client have discussed the importance and weight given to the forensic psychiatrist's report in a contested custody proceeding in the context of the ultimate decision as to whether to pursue at trial a position in direct contradiction to the recommendations contained in the report.

The following discussion might be helpful in making your and your client's extremely difficult decision.

Consideration of the Report

Reports by court-appointed experts are generally considered probative but not determinative. The New York Court of Appeals has stated that experts' reports 'are only aids to the court [in custody matters] and, if not woven into the fabric of the record, should not form the basis for the decision.' Kessler v. Kessler , 10 N.Y.2d 445 (1962). And many courts have stated that expert testimony may be rejected by the trial court 'if it is improbable, in conflict with other evidence or otherwise legally unsound.' Desnoes v. State of New York , 100 A.D.2d 712, 474 N.Y.S.2d 602 (3d Dept. 1984); State of New York ex rel v. H.K. v. M.S. , 187 A.D.2d 50, 592 N.Y.S.2d 708 (1st Dept. 1993); Edgerly v. Moore, 232 A.D.2d 214, 647 N.Y.S.2d 773 (1st Dept. 1996). The fact that the expert was appointed by the court 'does not, in any way, require that the court accept the opinion of that expert.' State ex rel. H.K. at 711. Furthermore, the court may not delegate its power to decide custody to the expert and must base its decision on the record as a whole. Hennelly v. Viger , 198 A.D.2d 224, 603 N.Y.S.2d 168 (2d Dept. 1993).

However, two cases may be read as giving greater weight to expert reports in custody determinations than had previously been thought to have been the case. These decisions may produce a chilling effect on judges who may otherwise have felt free to disregard the recommendation of an expert. See Rentschler v. Rentschler , 204 A.D.2d 60, 611 N.Y.S.2d 523 (1st Dept. 1994) and In the Matter of Rebecca B. , 204 A.D.2d 57, 611 N.Y.S.2d 831 (1st Dept. 1994). In Rentschler, the Appellate Division, First Department, reversed an award of custody to the mother. That decision was made by the trial judge against the advice of the court-appointed psychiatrist. In disregarding the expert's report, the lower court had made an independent determination based on all the evidence available to it that custody should be awarded to the mother. The First Department found that the lower court's determination was not warranted by the evidence and noted that there was much support in the record for the expert opinion that custody should be awarded to the father, stating that 'the evaluation by an independent expert should not be readily set aside.'

Likewise, In the Matter of Rebecca B., the Appellate Division, First Department, reversed a lower court denial of a motion by the father to transfer sole legal custody to him where the law guardian and psychiatrist had recommended the transfer be made. There, the clinical director for the Family Court's mental health service met with the child on three occasions for a total of 3 hours, and met with the child and each parent for about 40 minutes.

The expert also met with each parent separately for 7 hours. The expert determined that the father was a less detrimental influence to the child, that the child made clear a preference for living with the father, and that the mother's severe punishment of the child was problematic. Another psychiatrist also recommended the transfer because the mother tried to exclude the father from the child's life. (This potential interference with the relationship between the child and her father seemed to be the most important factor in the appellate court's determination.) In addition, a supervising Legal Aid Society social worker and the law guardian also favored the transfer. Although the psychiatrist for the mother recommended that custody remain with her, that psychiatrist had not spoken with the child or with the child's father. Given all these factors, the appellate court determined that in declining to follow the recommendation of the experts, the trial court's custody award lacked a sound and substantial basis in the record.

In three Second Department cases, the court came to a similar conclusion, reversing the lower court's award of custody that disregarded the expert's testimony and recommendation. See Linda R. v. Richard E. , 162 A.D.2d 48, 561 N.Y.S.2d 29 (2d Dept. 1990); Young v. Young , 212 A.D.2d 114, 628 N.Y.S.2d 957 (2d Dept. 1995); and Harvey v. Share , 119 A.D.2d 823, 501 N.Y.S.2d 448 (2d Dept. 1986). In all three cases, the court found that there was no convincing reason not to follow the expert's recommendation. In Linda R. v. Richard E., the court reversed the lower court's determination that custody should lie with the father, finding that the determination lacked a sound and substantial basis in the record. There, both the psychiatric evaluation and the evaluation by the county probation department recommended custody remain with the mother, who had been the children's primary caregiver. Significant in this evaluation was the determination that the mother was substantially less likely to exclude the father from the children's lives.

Similarly, in Young v. Young, the court reversed a lower court custody determination that was contrary to both the court-appointed psychiatrist's and law guardian's recommendations. The court held that expert opinions, though not determinative, were entitled to some weight and should not be disregarded absent some contradiction in the record. Contrary to the lower court's interpretation, the appellate court found that the expert's opinion showed the mother was an unfit parent. In addition, the court found, the lower court relied on the mother's expert, who had only met with the mother and children, and not with the father.

The court in Harvey v. Share reversed the lower court's award of custody to the father, finding that that decision was not supported by the record because the lower court had failed to state any reason for disregarding the collective recommendations of forensics experts and of the law guardian. See also, Muller v. Muller , 221 A.D.2d 635, 634 N.Y.S.2d 190 (2d Dept. 1995) and Fanelli v. Fanelli , 215 A.D.2d 718, 627 N.Y.S.2d 425 (2d Dept. 1995).

In many relocation cases, courts have relied on expert reports in their custody determinations. For example, in Paesch v. Paesch , 130 A.D.2d 798, 514 N.Y.S.2d 824 (3rd Dept. 1987), the child was living with his father during the parties' separation and the father and child moved to Baltimore where the father's family was located. The mother commenced a proceeding to transfer custody. A hearing was held in which a psychiatrist testified that it was in the child's best interest to be near the mother, though both husband and wife were loving and fit parents. The psychiatrist had determined that the relocation and separation from the non-custodial parent created a 'high risk' of psychological problems that would be 'disastrous to the child's well-being.' What was the outcome?

In a more recent Second Department case on relocation, in which the court granted a mother's request to relocate to Washington State, the court permitted the relocation, relying on forensic evaluations, testimony at trial and all the circumstances presented. The court noted the close relationship between the child and its father and provided maximum visitation. See Pardee v. Pardee , 666 N.Y.S.2d 926 (2d Dept. 1998). In Silver v. Silver , 119 A.D.2d 742, 501 N.Y.S.2d 153 (2d Dept. 1986), the court, relying in part on a psychologist's recommendation that the best interest of the children would not be served by absence of contact with their father, transferred custody to the father with reversion back to the mother on her return within a specified time. The psychologist had determined that the mother moved to Utah partly out of frustration and an inability to deal with the father's visitation privileges, which is clearly not the case here. In addition, as the psychologist noted, there would be virtually no regular contact between the children and their father if they remained in Utah. See also, Koons v. Koons, 1994 WL 808603 (Sup. Ct. N.Y. Co. 1994).