2004 Update: Negative Custody Evaluations and Guardian Ad Litem Reports

In the August 2003 issue of The Matrimonial Strategist, I discussed identifying and exacting information from your client that would motivate a Guardian Ad Litem (GAL) or Custody Evaluator (CE) to examine the real issues in the case and not let bias interfere with his or her assessment. (In the remainder of this article, the GAL/CE is designated female and the client male.) The article made suggestions about interviewing your client, identifying issues, and reviewing records such as those from previous court matters or medical treatment.

The ultimate goal is to have the court appreciate your client's perspective on the issues that must be taken into consideration when deciding the issue of custody, especially if the GAL/CE's opinion has failed to do so. It is essential, then, that your client understands the GAL/CE is not going to conduct her examination the same way the judge or a lawyer would. It is important to explain to your client that the GAL/CE takes an “inference-based” approach to conducting an assessment, so that the client understands how he can best address the issue of the other parent's deficits and inappropriate parenting practices when speaking to the GAL/CE, and more importantly, to any collateral sources who may be contacted. Such sources include health care providers, day care workers, teachers, and so forth. Ultimately, the groundwork you lay with the client will resonate through to the professionals involved with your case, as the GAL/CE gathers “history” in a way that emphasizes patterns, not just events.

Some clients may want or need to obtain expert help to prepare for GAL/CE's evaluation, such as a “dry run” MMPI (Minnesota Multiphasic Personality Inventory), a communication skills development course, or parenting classes. Again, your client may be able to gather “history” in way that emphasizes patterns, not just events, but if identifying this for the GAL/CE does not come natural to him, he should take measures that will aid him in explaining his parental role and parenting style in a positive way.

Make Sure Your Client Is Heard

Perhaps the best way to assure that your client's message is heard is for you and your staff to strategize with the client and his family about how discussions with the GAL/CE might emphasize facts that augment the specific patterns that are important to his case. Have your client prepare as though he were going to a doctor for treatment of an injury, knowing litigation will follow. Tell him to make notes during the week about the patterns and routines of both parents that affect their parenting roles, or that affect the children. Instruct him to review his notes each morning (advise him that these notes are not for GAL/CE's eyes). Emphasize to him that it is important for him to get in the habit of speaking in a positive fashion about matters that are important to the case, instead of simply bad-mouthing the other parent. For instance, if a child is having difficulty with separation issues, have your client talk about what he has done to alleviate the stress for the child and any discussions he had with collateral sources suggesting cooperative efforts to ease the situation – instead of being openly critical of the other party for not allowing more parenting time.

The client should be told to use a similar approach with any collateral contacts. Any discussion with them should be focused entirely on the child(ren) and the client's involvement (ie, help with problem homework areas, coaching, etc.). In other words, the client should avoid engaging in negative discussions about the other parent and instead direct his efforts so that the collateral contact is able to observe obvious differences in parenting styles and behavior.

Practice Tip Number One

Make your client promise that for 10 minutes every night he will think about how his face will look as he describes his children and his parenting responsibilities to the GAL/CE or any collateral source with whom he may have contact.

The client needs to understand that proving a GAL/CE is biased is not the same as showing that she is being unreasonable in her recommendation to the court. Therefore, explain that when dealing with an adverse GAL/CE opinion, the purpose is to show that her bias leads to an unsound opinion, and that if the court relies on it there will be a negative impact on a child's right to grow up having the best possible relationship with each parent. See Wittmann infra. One way to demonstrate this is to identify which type of bias you are dealing with, so that you can subtly emphasize the bias and thereby make your judge uncomfortable with adopting the opinion.

Types of Biases

Several kinds of biases have been identified:

• Illusory Correlation. A relationship between events or characteristics is claimed, but no objective data indicate its existence
• Hindsight Bias. A tendency to conclude and emphasize particular information after outcome of some event (ie, high MMPI Depression Scale after suicide ideation is stated).
• Confirmatory Bias. The evaluator looks for and emphasizes information to support position.
• Anchoring. Gives excessive weight to initial information.
• Availability. Vivid or dramatic information is easily brought to mind (overemphasized). Williams A.: Bias and Debiasing Techniques in Forensic Psychology, 10 Am. J. Forensic Psychology, 19-21 (1992).

Practice Tip Number Two

Not all bias is immediately recognizable as negative. Spend time planning the testimony and exhibits that will make the type of bias involved “stand out,” and show how the bias shaped the GAL/CE's report/recommendation. Weave emphasis of this type of bias into every aspect of cross-examination.

You can do this by dwelling on any idiosyncratic methods used by the GAL/CE, or by any expert whose opinion she has relied upon, in reaching an opinion (ie, deviation in procedure caused by the professional's personal adaptations of prescribed standards in testing, interviews, investigation or interactions with the subject). Call collateral witnesses to show there has been or would be an iatrogenic harm to the relationship the child had with your client and his family, or with your client's significant other, if the GAL/CE's opinion is adopted.

Then, when preparing the examination of the GAL/CE at trial, create a list containing a subset of factual issues regarding misdeeds and negative parenting that you know you can prove and, more importantly, that opposing party cannot refute (ie, your client's dates of treatment arising out of the abuse, his criminal charges/convictions, test results for illegal substances, etc.). Add a subset of all the matters that the parents have not been able to cooperate on (again, only issues and instances that are irrefutable). Lastly, make a subset of known (common and practical knowledge) emotional and physiological difficulties that your client and the children have with the other parent. Using your list, fashion your examination questions (either cross or direct) to elicit whether the GAL/CE has knowledge about the underlying facts regarding each of the incidents or events on your first two subsets, and whether she has training or education on the last subset. For each question that she answers in the negative, ask if it could have affected her recommendation if she had known about the situation. Then put your testimony in through other witnesses as to the events, incidents and emotional and physiological difficulties that a victim has with the perpetrator (consider judicial notice request of certain of certain studies or scientific journals, for purpose of educating court re those common and practical knowledge matters). If appropriate, call a domestic violence advocate/counselor to testify (preferably one not involved with either party).

Practice Tip Number Three

If the GAL/CE acknowledges everything and still stands by her recommendation, she will appear biased. If she acknowledges that she did not have knowledge of the various events and incidents, and says it might have an impact on her recommendation, and you then prove these negatives, her opinion becomes less than trustworthy to the fact finder. DO NOT outright ask a GAL/CE to change her recommendation at any time during her testimony on each issue or after you dispel her report, as she probably will not readily admit to its diminished value and will likely attempt to buttress it with some other factor she believes is supportive of her opinion.

To neutralize/educate the GAL in anticipation of a custody evaluation by a psychologist or licensed social worker, fashion an affidavit or summary for client's signature reciting the same list/subsets of incidents, events and emotional and physiological problems, and provide it to the GAL and CE. The summary/affidavit should be a storyline that emphasizes the existence/nonexistence of any instability or domestic violence or neglect, with chemical dependency/addiction and mental or emotional health being secondary issue.

All of the incidents/events should be introduced through this “storyline,” and stress the pattern of the other parent's abuse/addiction with copies of conviction or police reports, his medical records regarding any injury, counseling records, etc., so that the custody evaluator immediately sees the pattern, and is not lost to the notion that it is nothing more than your client's subjective opinion. That way the CE will be less inclined to get involved with any attempt by the GAL or opposing party to minimize acts of domestic violence and addiction issues by claiming the separate incidents are “not proven” (he said, she said).

At trial, follow the direct/cross-examination procedures stated above, taking extra effort to elicit from the GAL the fact that she did not question contacts regarding the facts surrounding each incident (note: the GAL often testifies that she did not feel the need for further inquiry because it was old news), which the court may view differently. Moreover, if the custody evaluator is following your lead and looking at the pattern of abuse/addiction, the GAL (and court) will likely have to defer to the CE's expertise in these matters.

Evaluators, with their “psychoanalytic tools” and self-professed neutrality, are often perceived by the fact finder as the “answer,” insofar as the decision of the evaluator can simply be adopted as the fact finder's own. The fact is the evaluator's recommendation may be less than neutral. Abbelbaum PS: The Medicalization of Judicial Decision-Making, The Elder Law Report, Vol. X, No. 7, Feb. 1999. Your goal is to make the adverse evaluator's recommendation just another source of internal strife, and then present the judge with some other source that provides a resolution to the conflict the judge is having. Move those parts of the recommendation that you know the fact finder will adopt over to your side of the slate and incorporate them into the theme of your witness examinations and argument.

Guardians and custody evaluators are not your normal information gatherers. Most lawyers have difficulty with the inherently “subjective” nature of the evaluator's work. In fact, since the formal training lawyers (and judges) receive is to investigate, gather and present facts for an independent factual determination, where evidence is supposed to be objectively weighed, they are by nature uncomfortable with an inferentially based evaluation. If the goal is to get information from the evaluation that will assist in an award of custody based on the facts your client feels are most important, you should look at the evaluator and his or her recommendation as a means to that end. The fact finder has the natural tendency to want to resolve any inner conflict that comes from having to make such a difficult decision. Psychologists tell us it is human nature to sometimes suspend disbelief in order to resolve inner strife. Therefore, you may find some of the techniques referenced in this article helpful as you approach an adverse GAL/CE report, with the intent of “unsuspending” that disbelief.

In the August 2003 issue of The Matrimonial Strategist, I discussed identifying and exacting information from your client that would motivate a Guardian Ad Litem (GAL) or Custody Evaluator (CE) to examine the real issues in the case and not let bias interfere with his or her assessment. (In the remainder of this article, the GAL/CE is designated female and the client male.) The article made suggestions about interviewing your client, identifying issues, and reviewing records such as those from previous court matters or medical treatment.

The ultimate goal is to have the court appreciate your client's perspective on the issues that must be taken into consideration when deciding the issue of custody, especially if the GAL/CE's opinion has failed to do so. It is essential, then, that your client understands the GAL/CE is not going to conduct her examination the same way the judge or a lawyer would. It is important to explain to your client that the GAL/CE takes an “inference-based” approach to conducting an assessment, so that the client understands how he can best address the issue of the other parent's deficits and inappropriate parenting practices when speaking to the GAL/CE, and more importantly, to any collateral sources who may be contacted. Such sources include health care providers, day care workers, teachers, and so forth. Ultimately, the groundwork you lay with the client will resonate through to the professionals involved with your case, as the GAL/CE gathers “history” in a way that emphasizes patterns, not just events.

Some clients may want or need to obtain expert help to prepare for GAL/CE's evaluation, such as a “dry run” MMPI (Minnesota Multiphasic Personality Inventory), a communication skills development course, or parenting classes. Again, your client may be able to gather “history” in way that emphasizes patterns, not just events, but if identifying this for the GAL/CE does not come natural to him, he should take measures that will aid him in explaining his parental role and parenting style in a positive way.

Make Sure Your Client Is Heard

Perhaps the best way to assure that your client's message is heard is for you and your staff to strategize with the client and his family about how discussions with the GAL/CE might emphasize facts that augment the specific patterns that are important to his case. Have your client prepare as though he were going to a doctor for treatment of an injury, knowing litigation will follow. Tell him to make notes during the week about the patterns and routines of both parents that affect their parenting roles, or that affect the children. Instruct him to review his notes each morning (advise him that these notes are not for GAL/CE's eyes). Emphasize to him that it is important for him to get in the habit of speaking in a positive fashion about matters that are important to the case, instead of simply bad-mouthing the other parent. For instance, if a child is having difficulty with separation issues, have your client talk about what he has done to alleviate the stress for the child and any discussions he had with collateral sources suggesting cooperative efforts to ease the situation – instead of being openly critical of the other party for not allowing more parenting time.

The client should be told to use a similar approach with any collateral contacts. Any discussion with them should be focused entirely on the child(ren) and the client's involvement (ie, help with problem homework areas, coaching, etc.). In other words, the client should avoid engaging in negative discussions about the other parent and instead direct his efforts so that the collateral contact is able to observe obvious differences in parenting styles and behavior.

Practice Tip Number One

Make your client promise that for 10 minutes every night he will think about how his face will look as he describes his children and his parenting responsibilities to the GAL/CE or any collateral source with whom he may have contact.

The client needs to understand that proving a GAL/CE is biased is not the same as showing that she is being unreasonable in her recommendation to the court. Therefore, explain that when dealing with an adverse GAL/CE opinion, the purpose is to show that her bias leads to an unsound opinion, and that if the court relies on it there will be a negative impact on a child's right to grow up having the best possible relationship with each parent. See Wittmann infra. One way to demonstrate this is to identify which type of bias you are dealing with, so that you can subtly emphasize the bias and thereby make your judge uncomfortable with adopting the opinion.

Types of Biases

Several kinds of biases have been identified:

• Illusory Correlation. A relationship between events or characteristics is claimed, but no objective data indicate its existence
• Hindsight Bias. A tendency to conclude and emphasize particular information after outcome of some event (ie, high MMPI Depression Scale after suicide ideation is stated).
• Confirmatory Bias. The evaluator looks for and emphasizes information to support position.
• Anchoring. Gives excessive weight to initial information.
• Availability. Vivid or dramatic information is easily brought to mind (overemphasized). Williams A.: Bias and Debiasing Techniques in Forensic Psychology, 10 Am. J. Forensic Psychology, 19-21 (1992).

Practice Tip Number Two

Not all bias is immediately recognizable as negative. Spend time planning the testimony and exhibits that will make the type of bias involved “stand out,” and show how the bias shaped the GAL/CE's report/recommendation. Weave emphasis of this type of bias into every aspect of cross-examination.

You can do this by dwelling on any idiosyncratic methods used by the GAL/CE, or by any expert whose opinion she has relied upon, in reaching an opinion (ie, deviation in procedure caused by the professional's personal adaptations of prescribed standards in testing, interviews, investigation or interactions with the subject). Call collateral witnesses to show there has been or would be an iatrogenic harm to the relationship the child had with your client and his family, or with your client's significant other, if the GAL/CE's opinion is adopted.

Then, when preparing the examination of the GAL/CE at trial, create a list containing a subset of factual issues regarding misdeeds and negative parenting that you know you can prove and, more importantly, that opposing party cannot refute (ie, your client's dates of treatment arising out of the abuse, his criminal charges/convictions, test results for illegal substances, etc.). Add a subset of all the matters that the parents have not been able to cooperate on (again, only issues and instances that are irrefutable). Lastly, make a subset of known (common and practical knowledge) emotional and physiological difficulties that your client and the children have with the other parent. Using your list, fashion your examination questions (either cross or direct) to elicit whether the GAL/CE has knowledge about the underlying facts regarding each of the incidents or events on your first two subsets, and whether she has training or education on the last subset. For each question that she answers in the negative, ask if it could have affected her recommendation if she had known about the situation. Then put your testimony in through other witnesses as to the events, incidents and emotional and physiological difficulties that a victim has with the perpetrator (consider judicial notice request of certain of certain studies or scientific journals, for purpose of educating court re those common and practical knowledge matters). If appropriate, call a domestic violence advocate/counselor to testify (preferably one not involved with either party).

Practice Tip Number Three

If the GAL/CE acknowledges everything and still stands by her recommendation, she will appear biased. If she acknowledges that she did not have knowledge of the various events and incidents, and says it might have an impact on her recommendation, and you then prove these negatives, her opinion becomes less than trustworthy to the fact finder. DO NOT outright ask a GAL/CE to change her recommendation at any time during her testimony on each issue or after you dispel her report, as she probably will not readily admit to its diminished value and will likely attempt to buttress it with some other factor she believes is supportive of her opinion.

To neutralize/educate the GAL in anticipation of a custody evaluation by a psychologist or licensed social worker, fashion an affidavit or summary for client's signature reciting the same list/subsets of incidents, events and emotional and physiological problems, and provide it to the GAL and CE. The summary/affidavit should be a storyline that emphasizes the existence/nonexistence of any instability or domestic violence or neglect, with chemical dependency/addiction and mental or emotional health being secondary issue.

All of the incidents/events should be introduced through this “storyline,” and stress the pattern of the other parent's abuse/addiction with copies of conviction or police reports, his medical records regarding any injury, counseling records, etc., so that the custody evaluator immediately sees the pattern, and is not lost to the notion that it is nothing more than your client's subjective opinion. That way the CE will be less inclined to get involved with any attempt by the GAL or opposing party to minimize acts of domestic violence and addiction issues by claiming the separate incidents are “not proven” (he said, she said).

At trial, follow the direct/cross-examination procedures stated above, taking extra effort to elicit from the GAL the fact that she did not question contacts regarding the facts surrounding each incident (note: the GAL often testifies that she did not feel the need for further inquiry because it was old news), which the court may view differently. Moreover, if the custody evaluator is following your lead and looking at the pattern of abuse/addiction, the GAL (and court) will likely have to defer to the CE's expertise in these matters.

Evaluators, with their “psychoanalytic tools” and self-professed neutrality, are often perceived by the fact finder as the “answer,” insofar as the decision of the evaluator can simply be adopted as the fact finder's own. The fact is the evaluator's recommendation may be less than neutral. Abbelbaum PS: The Medicalization of Judicial Decision-Making, The Elder Law Report, Vol. X, No. 7, Feb. 1999. Your goal is to make the adverse evaluator's recommendation just another source of internal strife, and then present the judge with some other source that provides a resolution to the conflict the judge is having. Move those parts of the recommendation that you know the fact finder will adopt over to your side of the slate and incorporate them into the theme of your witness examinations and argument.

Guardians and custody evaluators are not your normal information gatherers. Most lawyers have difficulty with the inherently “subjective” nature of the evaluator's work. In fact, since the formal training lawyers (and judges) receive is to investigate, gather and present facts for an independent factual determination, where evidence is supposed to be objectively weighed, they are by nature uncomfortable with an inferentially based evaluation. If the goal is to get information from the evaluation that will assist in an award of custody based on the facts your client feels are most important, you should look at the evaluator and his or her recommendation as a means to that end. The fact finder has the natural tendency to want to resolve any inner conflict that comes from having to make such a difficult decision. Psychologists tell us it is human nature to sometimes suspend disbelief in order to resolve inner strife. Therefore, you may find some of the techniques referenced in this article helpful as you approach an adverse GAL/CE report, with the intent of “unsuspending” that disbelief.