Custody Evaluations

The Facts

Neutral evaluators are not asked to decide custody cases! New York courts view MHP testimony as an important part of the evidence that can be utilized by a judge in coming to a conclusion regarding custody. The issue in controversy should not be phrased as asking whether an MHP is capable of rendering a report (and possibly a recommendation) on which a judge can rely in every case. The issue should be whether MHP reports (and possibly recommendations) can assist the court in its handling of the pretrial stages of proceedings as well as in the decision-making process. It must be noted that only a small percentage of divorce cases go to trial and only a portion of those have contested custody issues attached. The parties that become embroiled in contested custody cases are often experiencing serious psycho-social stress and many have psychological issues apart from that situation. During these stressful times, children are subjected to multiple pressures and are often manipulated psychologically over a considerable period of time. Thus, in true custody conflicts, there are, typically, genuine issues involving the mental health of the parties and the child, which ought to be considered. MHPs can contribute positively to the process in many ways during the progress of these cases. Most cases are settled, and MHP reports often help in bringing that settlement about.

Forty-two states currently have statutory guidelines for custody determinations. See 37 Fam.LQ No.4, Winter, 2004, Chart 2. Custody guidelines, like sentencing guidelines, limit the discretion of the decision maker. In New York, custody decisions are made “having regard to the best interests of the child.” Freiderwitzer v. Freiderwitzer, 55 N.Y.2d. 89 (1982). There are no statutory guidelines setting forth what factors are to be considered. Considerations that are relevant to custody determinations are found in case law, and, while they include all of the factors found in the various state statutes and more, none of these non-statutory factors must be considered. The only statutory factor in New York is the consideration of domestic violence. DRL ' 240 (1). Because the determination is based on judicial discretion, it is one of those perfect statutes that must be administered by imperfect individuals. As such, everyone in the process needs as much help as can be obtained.

In trying to ascertain what is in the best interests of a child, a judge will listen to the testimony of each of the parties. Each side may offer testimony from significant others, possibly a caregiver, a teacher, doctors, neighbors, friends and relatives. It is obvious that some of these witnesses will have biases. It is obvious that many of these witnesses have limited perspectives. It is obvious that the parties themselves significantly slant their stories. The trier of facts — the decision maker — has a difficult task coming to a conclusion based on this type of testimony.

At Trial

When a case gets to trial or hearing, forcing a judge to decide the issue based on the presentation of evidence, then all of the relevant information holders — including the custody evaluator — must submit to the litigation system, where testing by cross-examination is a vital feature. Cross-examination is the most useful tool the system has to unearth the truth. Wigmore 5 Evidence ' 1367 (3rd Ed. 1940). Thus, one can find numerous cases where the trial judge rejected the observations and/or recommendations of the expert because it did not comport with other evidence, other recommendations or conclusions that the judge had come to as a result of cross-examination or other aspects of the trial.

The presentation and cross examination of witnesses depends, to a great extent, on the skill of the attorney and the style of the judge. With regard to expert witnesses, the talent of the attorney is put to a test that becomes increasingly more difficult as the expertise and experience of the witness increase. The cross-examiner is charged with examining the evaluator's qualifications and credentials, finding out whether the method of gathering and interpreting information was flawed, comparing the procedure utilized with those that are recommended by respected professional organizations, testing whether the evaluator's methods and theories are consistent with those of other experts in the field, and challenging the basis for the opinions and recommendations that flow from the observations.

It is up to the attorney to point out where the evaluator lacks credentials or qualifications, where the examiner has failed to follow a protocol or explore relevant areas, and where the professional has exhibited bias or ignored recognized research. That is the way our system is supposed to work. The testimony of experts is put to the test in the cauldron of cross-examination.

The fact that there are sometimes unqualified individuals doing important work, that there are some people in positions of power who are biased or do not follow protocol, that there are situations where faulty analyses are being done, is an accurate description of what happens in life, not a criticism that is specific to custody cases in New York. Just as there are inferior evaluators, so there are inferior lawyers and unseasoned judges who are regularly brought into this process to perform extraordinarily difficult tasks. Nevertheless, a good judge presiding over a hearing where good lawyers examine a good custody evaluator will produce a good decision. If you change any adjective in the sentence from “good” to “poor,” the result becomes unpredictable. However, a good, experienced judge will usually be able to guide a proceeding to its proper conclusion, regardless of the inadequacies of the participants. This happens in family courts every day.

What Is Appropriate?

In addition to a general criticism of the use of custody evaluators, there have been questions raised about whether it is appropriate to request recommendations from an evaluator or whether the evaluator should be limited to making observations. Although on its face this appears to be a controversial issue, it is questionable whether the answer makes much of a difference.

Clearly, there is nothing wrong with asking a mother or father, “Who do you think would be the more appropriate custodial parent and why?” The answer does not bind the judge in any way: It provides information about values and judgment. The issue is slightly different with the expert on the stand — but not very much so. The importance of the recommendation is its rationale and its ability to withstand analysis and cross-examination. If an expert were told to give no recommendation, but had one to give, one can assume that the recommendation would nevertheless find its way into the observations — maybe in a more subtle, and therefore more dangerous way. If making a recommendation is deemed presumptuous, a compromise might be to request more focused observations, such as: What would be the immediate effect on the child if custody were given to one parent or the other (or relocation were allowed); what effect has the current visiting pattern had on the child; are there recommendations for treatment and, if so, what are they?

Regardless of any criticism that might be directed at the ability of custody evaluators to make recommendations in custody cases, there are certain important — and even critical — areas that evaluators are able to explore and explicate. They are able to observe the interaction of the parents with the children and to provide description and commentary on that aspect. They are able to speak to therapists, marriage counselors, teachers, pediatricians, significant others, caregivers and neighbors and report on the results of these conversations (although this involves receiving hearsay testimony, the benefits usually outweigh the cost. Many trial judges will allow hearsay testimony in custody cases, even where there is no exception on the “take it for what it's worth” theory). They are able to provide a psycho-social history of the family and the marriage. Finally, they are able to provide clinical observations and psychological test results that may have relevance.

Conclusion

Custody cases are extremely difficult to handle from a lawyer's perspective. The issues are imprecise; the law is not clear; the stakes are high; the clients have intense feelings. Time lost cannot be recovered. The legal system operates slowly. Facts are constantly changing.

Custody cases are extremely difficult cases to handle from a judge's perspective for the same reasons and one other: Someone needs to make a hard decision for a child that the parents cannot make. This is not a situation where less is more. Judges who are called upon to make hard decisions should have as many resources as possible to assist them in their most difficult task. The mental health professional is certainly an important one.

As stated in the article by Timothy M. Tippins (infra, p. 1), New York has recently been exposed to a resurgence of doubt regarding the usefulness of evaluations performed by mental health professionals (MHPs) in custody matters. In debates certain to affect the national family law community, the criticism questions the scientific validity of recommendations and observations that these professionals are called upon to make, asking whether the experts, in fact, have the expertise to participate meaningfully in the process. This article responds to some of the criticism by seeking to clarify the role that MHPs play.

Weighing the Testimony

By way of example, New York appellate courts have ruled — somewhat inconsistently — on the issue of how much weight should be given to the testimony of an MHP in a custody proceeding. See and Compare Rentschler v. Rentschler , 204 A.D.2d. 60 lv dismissed 84 N.Y.2d. 1027, Matter of Rebecca B. , 204 A.D.2d 57 (1st Dept. 1994), lv denied 84 N.Y.2d. 808. Although in Rentschler and Rebecca B, the First Department declared that significant weight had to be given to expert reports, subsequent decisions at both the appellate and trial levels have made it clear that MHP opinions are not conclusive and should not take precedence over the judgment of the trial court. Matter of Umani K, 176 Misc.2d. 708 (Fam.Ct. 1998); Griffin v. Scott , 303 A.D.2d. 503 (A.D.2d. 2003); Young v. Young , 176 Misc.2d. 114 (2nd Dept. 1995); Berstall v. Berstall , 272 A.D.2d. 566 (2nd Dept. 2000). Indeed, according to a recent unreported decision in New York, their opinions can be disregarded when they are shown to be inconclusive, even where there is no other expert testimony to the contrary. See, eg, Frankel v. Frankel (Silbermann, J.) unreported decision January 6, 2004.

The Facts

Neutral evaluators are not asked to decide custody cases! New York courts view MHP testimony as an important part of the evidence that can be utilized by a judge in coming to a conclusion regarding custody. The issue in controversy should not be phrased as asking whether an MHP is capable of rendering a report (and possibly a recommendation) on which a judge can rely in every case. The issue should be whether MHP reports (and possibly recommendations) can assist the court in its handling of the pretrial stages of proceedings as well as in the decision-making process. It must be noted that only a small percentage of divorce cases go to trial and only a portion of those have contested custody issues attached. The parties that become embroiled in contested custody cases are often experiencing serious psycho-social stress and many have psychological issues apart from that situation. During these stressful times, children are subjected to multiple pressures and are often manipulated psychologically over a considerable period of time. Thus, in true custody conflicts, there are, typically, genuine issues involving the mental health of the parties and the child, which ought to be considered. MHPs can contribute positively to the process in many ways during the progress of these cases. Most cases are settled, and MHP reports often help in bringing that settlement about.

Forty-two states currently have statutory guidelines for custody determinations. See 37 Fam.LQ No.4, Winter, 2004, Chart 2. Custody guidelines, like sentencing guidelines, limit the discretion of the decision maker. In New York, custody decisions are made “having regard to the best interests of the child.” Freiderwitzer v. Freiderwitzer , 55 N.Y.2d. 89 (1982). There are no statutory guidelines setting forth what factors are to be considered. Considerations that are relevant to custody determinations are found in case law, and, while they include all of the factors found in the various state statutes and more, none of these non-statutory factors must be considered. The only statutory factor in New York is the consideration of domestic violence. DRL ' 240 (1). Because the determination is based on judicial discretion, it is one of those perfect statutes that must be administered by imperfect individuals. As such, everyone in the process needs as much help as can be obtained.

In trying to ascertain what is in the best interests of a child, a judge will listen to the testimony of each of the parties. Each side may offer testimony from significant others, possibly a caregiver, a teacher, doctors, neighbors, friends and relatives. It is obvious that some of these witnesses will have biases. It is obvious that many of these witnesses have limited perspectives. It is obvious that the parties themselves significantly slant their stories. The trier of facts — the decision maker — has a difficult task coming to a conclusion based on this type of testimony.

At Trial

When a case gets to trial or hearing, forcing a judge to decide the issue based on the presentation of evidence, then all of the relevant information holders — including the custody evaluator — must submit to the litigation system, where testing by cross-examination is a vital feature. Cross-examination is the most useful tool the system has to unearth the truth. Wigmore 5 Evidence ' 1367 (3rd Ed. 1940). Thus, one can find numerous cases where the trial judge rejected the observations and/or recommendations of the expert because it did not comport with other evidence, other recommendations or conclusions that the judge had come to as a result of cross-examination or other aspects of the trial.

The presentation and cross examination of witnesses depends, to a great extent, on the skill of the attorney and the style of the judge. With regard to expert witnesses, the talent of the attorney is put to a test that becomes increasingly more difficult as the expertise and experience of the witness increase. The cross-examiner is charged with examining the evaluator's qualifications and credentials, finding out whether the method of gathering and interpreting information was flawed, comparing the procedure utilized with those that are recommended by respected professional organizations, testing whether the evaluator's methods and theories are consistent with those of other experts in the field, and challenging the basis for the opinions and recommendations that flow from the observations.

It is up to the attorney to point out where the evaluator lacks credentials or qualifications, where the examiner has failed to follow a protocol or explore relevant areas, and where the professional has exhibited bias or ignored recognized research. That is the way our system is supposed to work. The testimony of experts is put to the test in the cauldron of cross-examination.

The fact that there are sometimes unqualified individuals doing important work, that there are some people in positions of power who are biased or do not follow protocol, that there are situations where faulty analyses are being done, is an accurate description of what happens in life, not a criticism that is specific to custody cases in New York. Just as there are inferior evaluators, so there are inferior lawyers and unseasoned judges who are regularly brought into this process to perform extraordinarily difficult tasks. Nevertheless, a good judge presiding over a hearing where good lawyers examine a good custody evaluator will produce a good decision. If you change any adjective in the sentence from “good” to “poor,” the result becomes unpredictable. However, a good, experienced judge will usually be able to guide a proceeding to its proper conclusion, regardless of the inadequacies of the participants. This happens in family courts every day.

What Is Appropriate?

In addition to a general criticism of the use of custody evaluators, there have been questions raised about whether it is appropriate to request recommendations from an evaluator or whether the evaluator should be limited to making observations. Although on its face this appears to be a controversial issue, it is questionable whether the answer makes much of a difference.

Clearly, there is nothing wrong with asking a mother or father, “Who do you think would be the more appropriate custodial parent and why?” The answer does not bind the judge in any way: It provides information about values and judgment. The issue is slightly different with the expert on the stand — but not very much so. The importance of the recommendation is its rationale and its ability to withstand analysis and cross-examination. If an expert were told to give no recommendation, but had one to give, one can assume that the recommendation would nevertheless find its way into the observations — maybe in a more subtle, and therefore more dangerous way. If making a recommendation is deemed presumptuous, a compromise might be to request more focused observations, such as: What would be the immediate effect on the child if custody were given to one parent or the other (or relocation were allowed); what effect has the current visiting pattern had on the child; are there recommendations for treatment and, if so, what are they?

Regardless of any criticism that might be directed at the ability of custody evaluators to make recommendations in custody cases, there are certain important — and even critical — areas that evaluators are able to explore and explicate. They are able to observe the interaction of the parents with the children and to provide description and commentary on that aspect. They are able to speak to therapists, marriage counselors, teachers, pediatricians, significant others, caregivers and neighbors and report on the results of these conversations (although this involves receiving hearsay testimony, the benefits usually outweigh the cost. Many trial judges will allow hearsay testimony in custody cases, even where there is no exception on the “take it for what it's worth” theory). They are able to provide a psycho-social history of the family and the marriage. Finally, they are able to provide clinical observations and psychological test results that may have relevance.

Conclusion

Custody cases are extremely difficult to handle from a lawyer's perspective. The issues are imprecise; the law is not clear; the stakes are high; the clients have intense feelings. Time lost cannot be recovered. The legal system operates slowly. Facts are constantly changing.

Custody cases are extremely difficult cases to handle from a judge's perspective for the same reasons and one other: Someone needs to make a hard decision for a child that the parents cannot make. This is not a situation where less is more. Judges who are called upon to make hard decisions should have as many resources as possible to assist them in their most difficult task. The mental health professional is certainly an important one.