Raising the Bar for Custody Evaluations

Motivational speakers often say, “If you keep on doing what you've always done, you'll keep on getting what you've always got.” In the context of forensic custody evaluations, this maxim could be paraphrased for the benefit of the courts: “If you keep on accepting shoddy work-product, you'll keep on getting shoddy work-product.” In L.R. v. T.R., NYLJ, Oct. 29, 2010, the trial judge made it clear that such deficient work-product is not welcome in his courtroom. His decision provides a guiding beacon for identifying a number of forensic errors that are frequently encountered but often overlooked. It is, therefore, eminently instructive for custody courts, attorneys, and evaluators.

Facts

On May 25, 2010, the court held the plaintiff-wife in contempt based upon findings that she was alienating the parties' children from their father. This determination was predicated upon findings that the wife had violated “the parental access provisions” of the parties' divorce judgment and that she had engaged in “false reporting of sexual abuse allegations.”

A month later, the court appointed William Kaplan, a psychiatrist, to do a custody evaluation. After the doctor filed his report, the wife sought reconsideration of the contempt finding, basing her motion on the content of that report. (The wife's motion for renewal/reargument was denied, primarily on procedural grounds not pertinent to the present discussion.) The husband made a cross-motion, asking that the court reject the report “predicated upon a variety of purported professional transgressions of the forensic evaluator.”

The Kesseler Mandate

The court began its discussion by providing a useful reminder that in the ordinary course of events, it would not be proper for the court to read the evaluator's report prior to its admission into evidence: “This motion and cross motion have caused the Court to review the report of Dr. Kaplan, absent stipulation of the parties and prior to it being admitted into evidence. A trial court, typically should not review such reports absent stipulation by the parties.” (See Kesseler v. Kesseler, 10 NY2d 445; see also Tippins, T.M., “Custody Evaluations,” NYLJ, 9/4/03, p.3, c.1.)

Kesseler was decided by New York's highest court, the Court of Appeals, in 1962. It explicitly laid out the procedure to be followed when the court appoints a mental health professional in custody litigation: “In such case the psychologists, psychiatrists or other medical personnel could not report to the court in the absence of stipulation by the parties but would be available to be called as witnesses by either party subject to cross examination by the other party under common law evidence rules.” 10 NY2d 445, 452, 180 N.E.2d 402, 225 N.Y.S.2d 1.

By adhering to common-law evidence doctrine, Kesseler safeguarded against the destruction of due process by the misuse of court-appointed experts. The evaluator would send the report to the attorneys, not to the court. If one side believed the evaluator's opinion was favorable, that side would call the evaluator as its witness to present the testimony, subject to the constraints of direct examination, e.g., no leading questions, and subject to the full rigor of cross-examination by the party who was hurt by the opinion.

Unfortunately, in the intervening decades, the courts have strayed far from the Kesseler mandate. Courts routinely receive reports well in advance of trial and some judges read them long before the disfavored party has the opportunity to challenge their admissibility at trial. Worse, a number of courts resort to the shortcut contained in the state's Rules of Civil Procedure (22 NYCRR ' 202.16(g)) and receive the written report in lieu of direct examination and then allow the party favored by the report the latitude of cross-examination. This means that the favored party is allowed to lead the favorably predisposed witness through the testimony. In these important respects, due process clearly was more protected a half century ago than it is today.

In the present case, because the subject matter of the motion spoke to the content of the report, the judge had to read the report to address the issues. However, he did both the bench and bar a service in noting that this ought to be the rarity rather than the rule.

Appointment Order

In considering the report, the judge initially noted that “the forensic examiner here went well beyond the scope” of the appointment order. This is a significant problem. The appointment order is a critically important document. It is the evaluator's charter. Without it, the evaluator has no right to intrude into the lives of the litigants. As such, it is as important for its circumscription as it is for its grant of authority.

In years past, it was common for appointment orders to be general grants of authority to “conduct an evaluation,” providing neither direction to nor control over the process. Times have changed. As some judges have become more knowledgeable as to the limits of behavioral science expertise, they have become more careful and precise in the terms of their appointment orders.

For example, an increasing number of judges have come to recognize that the empirical research of the behavioral science field does not provide a sufficient basis to support an expert conclusion with respect to the decisive question of which parent should be awarded custody. Those judges typically direct in their appointment orders that the evaluator stop short of making a specific custody recommendation or suggesting a particular custodial arrangement. Notwithstanding such directions, however, it appears that some evaluators continue to make precisely such forbidden recommendations. If an evaluator either is so lax as not to read the appointment order carefully or is so arrogant as deliberately to disregard its directives, the court should view the entirety of the evaluator's work-product with supreme suspicion.

Who Is the Fact-Finder?

The principal substantive defect in the evaluation report identified by the court was that “Dr. Kaplan ignored the findings of fact made by this Court and seemingly substituted his own.” The court elaborated upon this dramatic blunder in the following terms:

He relied on details provided by plaintiff's father, who was not a witness at the contempt hearing nor subject to cross-examination, to make an assessment of the defendant's credibility and financial/business practices. By relying on such hearsay in rendering his opinion, Dr. Kaplan belies the role of the court in assessing credibility, while simultaneously tempering and mollifying this Court's determination in finding the plaintiff's conduct to be contemptuous. This Court's determination, which was made after an extensive hearing conducted over twenty three days of testimony, may only be subject to appellate review ' that authority may not be abrogated to a third party.

This implicates a dilemma frequently encountered in custody evaluations. The evaluator is often faced with competing and conflicting allegations. Whenever the evaluator adopts one version over another as an assumption upon which conclusions are predicated, the evaluator necessarily makes a credibility-based finding of fact. Doing so assumes the risk that the court ' as the ultimate fact-finder and assessor of credibility ' may find the opposite to be true, in which event the evaluator's conclusion becomes quite worthless.

Suppose, for example, that the mother alleges the father is an abuser. The husband counters that the mother is an inveterate liar who is fabricating allegations of violence to game the system and gain an edge in the custody litigation. Which version is adopted as the operative assumption is critical to the validity of any conclusions based on that assumption. If the evaluator assumes one version is correct and the court determines the opposite, not much, if any, weight will be given to the evaluator's conclusions.

The evaluator can avoid this dilemma by reporting in the alternative: “If the court finds that the mother's allegations of domestic violence are true, these are the conclusions that would follow. Conversely, if the court finds that the father's response is more credible and that the mother has fabricated the allegations, the following conclusions would flow.” This is not a cop-out. It is simply recognition of the reality, as reflected by the empirical behavioral science research, that the mental health professional holds
no superior ability to discern falsehood. Austin, W.G., “Guidelines for Utilizing Collateral Sources of Information in Child Custody Evaluations,” 40 Fam. Ct. Rev. 177, 180 (2002); see also Ekman, P., O'Sullivan, M., “Who Can Catch a Liar,” Am Psychol, Vol. 46, No. 9, 913-920 (September 1991, APA). It is also an acknowledgment of the legal reality that it is the judge, not the expert witness, who gets to make the credibility call.

What is especially disturbing in the case under discussion is that the court had already made specific findings of fact on the alienation issue. The evaluator either knew or should have known that the court had made those findings. This would have been evident upon review of the underlying documents in the case. If they were not provided to the evaluator initially, it was his responsibility to request them. Practice Parameters for Child Custody Evaluation, ' I.B.1, J Amer Acad Child Adolesc Psychiatry, 1997; 36:57S-68S. If he failed to request and read the underlying documents, his inattention to proper methodology is nothing short of stunning. If the evaluator knew of those findings, his presumption in purporting to override them is nothing short of astonishing.

A Profusion of Peccadilloes

The evaluator's substitution of his own fact-findings is even more egregious in view of the many methodological deficiencies that the court highlighted in its decision: “In these respects, too, the report appears to be significantly flawed. Such apparent flaws include failing to confront the defendant with information obtained from the plaintiff's father; relying upon such information in formulating his opinion; failing to disclose that the plaintiff's father was a collateral source.”

Such conduct flies in the face of the Model Standards of Practice for Child Custody Evaluation promulgated by the Association of Family and Conciliation Courts which dictate that “All collateral sources contacted shall be disclosed by the child custody evaluator” (' 11.5) and that “any allegation concerning a matter that the evaluator is likely to consider in formulating his/her opinion shall be brought to the attention of the party against whom the allegation is registered so that s/he is afforded an opportunity to respond.” ' 5.5(a).

Likewise, the American Academy of Child and Adolescent Psychiatry, in its Practice Parameters for Child Custody Evaluation, indicates that “Each parent should be given the opportunity to respond to allegations raised about him or her by the other parent.” See, “Summary of the Practice Parameters for Child Custody Evaluation,” J Amer Acad Child Adolesc Psychiatry, 1997;36:57S-68S.

These official declarations reflect what ought to be a matter of common sense, namely, that it is important to obtain both sides of a story before jumping to conclusions.

Conclusion

In view of the many demonstrable flaws the court identified in the forensic report, it directed that there be a pretrial hearing to determine admissibility so as to afford the court “the opportunity to secure a new opinion, if necessary.” If the errors delineated in the court's decision are established at the hearing, it is difficult to conceive that the court would not throw out the report and commission a new assessment because the errors are so fundamental and egregious. They were also entirely avoidable. Even perfunctory adherence to the professional guidelines cited herein could have kept the train on the rails.

If the court tosses the report, the next inevitable question is whether it will direct the evaluator to disgorge whatever fees were paid to him. Otherwise stated, will the evaluator, who apparently acted in utter disregard of published professional guidelines, be rewarded for his efforts, no matter how misguided those efforts were? This question invites modification of the maxim cited at the beginning of this article: “If you keep on rewarding shoddy work-product, you'll keep on getting shoddy work-product.”

Given the potential impact of forensic custody evaluations to truncate the rights of parents and alter the trajectory of their children's lives, courts need to make an important institutional decision: What kind of forensic work-product do they want to receive? If the courts want a higher quality work-product, they have the power to get it. They need only raise the bar by rejecting substandard work as the judge did in this case. If the courts will only raise the bar, those evaluators who presently ignore professional guidelines and the empirical research of their discipline either will raise their game to meet the heightened standard or they will leave the forensic arena. Either way, the courts and the families whose futures are before them win.

Timothy M. Tippins, a member of this newsletter's Board of Editors, is an adjunct professor at Albany Law School and serves on the faculty of the American Academy of Forensic Psychology.

Motivational speakers often say, “If you keep on doing what you've always done, you'll keep on getting what you've always got.” In the context of forensic custody evaluations, this maxim could be paraphrased for the benefit of the courts: “If you keep on accepting shoddy work-product, you'll keep on getting shoddy work-product.” In L.R. v. T.R., NYLJ, Oct. 29, 2010, the trial judge made it clear that such deficient work-product is not welcome in his courtroom. His decision provides a guiding beacon for identifying a number of forensic errors that are frequently encountered but often overlooked. It is, therefore, eminently instructive for custody courts, attorneys, and evaluators.

Facts

On May 25, 2010, the court held the plaintiff-wife in contempt based upon findings that she was alienating the parties' children from their father. This determination was predicated upon findings that the wife had violated “the parental access provisions” of the parties' divorce judgment and that she had engaged in “false reporting of sexual abuse allegations.”

A month later, the court appointed William Kaplan, a psychiatrist, to do a custody evaluation. After the doctor filed his report, the wife sought reconsideration of the contempt finding, basing her motion on the content of that report. (The wife's motion for renewal/reargument was denied, primarily on procedural grounds not pertinent to the present discussion.) The husband made a cross-motion, asking that the court reject the report “predicated upon a variety of purported professional transgressions of the forensic evaluator.”

The Kesseler Mandate

The court began its discussion by providing a useful reminder that in the ordinary course of events, it would not be proper for the court to read the evaluator's report prior to its admission into evidence: “This motion and cross motion have caused the Court to review the report of Dr. Kaplan, absent stipulation of the parties and prior to it being admitted into evidence. A trial court, typically should not review such reports absent stipulation by the parties.” ( See Kesseler v. Kesseler, 10 NY2d 445; see also Tippins, T.M., “Custody Evaluations,” NYLJ , 9/4/03, p.3, c.1.)

Kesseler was decided by New York's highest court, the Court of Appeals, in 1962. It explicitly laid out the procedure to be followed when the court appoints a mental health professional in custody litigation: “In such case the psychologists, psychiatrists or other medical personnel could not report to the court in the absence of stipulation by the parties but would be available to be called as witnesses by either party subject to cross examination by the other party under common law evidence rules.” 10 NY2d 445, 452, 180 N.E.2d 402, 225 N.Y.S.2d 1.

By adhering to common-law evidence doctrine, Kesseler safeguarded against the destruction of due process by the misuse of court-appointed experts. The evaluator would send the report to the attorneys, not to the court. If one side believed the evaluator's opinion was favorable, that side would call the evaluator as its witness to present the testimony, subject to the constraints of direct examination, e.g., no leading questions, and subject to the full rigor of cross-examination by the party who was hurt by the opinion.

Unfortunately, in the intervening decades, the courts have strayed far from the Kesseler mandate. Courts routinely receive reports well in advance of trial and some judges read them long before the disfavored party has the opportunity to challenge their admissibility at trial. Worse, a number of courts resort to the shortcut contained in the state's Rules of Civil Procedure (22 NYCRR ' 202.16(g)) and receive the written report in lieu of direct examination and then allow the party favored by the report the latitude of cross-examination. This means that the favored party is allowed to lead the favorably predisposed witness through the testimony. In these important respects, due process clearly was more protected a half century ago than it is today.

In the present case, because the subject matter of the motion spoke to the content of the report, the judge had to read the report to address the issues. However, he did both the bench and bar a service in noting that this ought to be the rarity rather than the rule.

Appointment Order

In considering the report, the judge initially noted that “the forensic examiner here went well beyond the scope” of the appointment order. This is a significant problem. The appointment order is a critically important document. It is the evaluator's charter. Without it, the evaluator has no right to intrude into the lives of the litigants. As such, it is as important for its circumscription as it is for its grant of authority.

In years past, it was common for appointment orders to be general grants of authority to “conduct an evaluation,” providing neither direction to nor control over the process. Times have changed. As some judges have become more knowledgeable as to the limits of behavioral science expertise, they have become more careful and precise in the terms of their appointment orders.

For example, an increasing number of judges have come to recognize that the empirical research of the behavioral science field does not provide a sufficient basis to support an expert conclusion with respect to the decisive question of which parent should be awarded custody. Those judges typically direct in their appointment orders that the evaluator stop short of making a specific custody recommendation or suggesting a particular custodial arrangement. Notwithstanding such directions, however, it appears that some evaluators continue to make precisely such forbidden recommendations. If an evaluator either is so lax as not to read the appointment order carefully or is so arrogant as deliberately to disregard its directives, the court should view the entirety of the evaluator's work-product with supreme suspicion.

Who Is the Fact-Finder?

The principal substantive defect in the evaluation report identified by the court was that “Dr. Kaplan ignored the findings of fact made by this Court and seemingly substituted his own.” The court elaborated upon this dramatic blunder in the following terms:

He relied on details provided by plaintiff's father, who was not a witness at the contempt hearing nor subject to cross-examination, to make an assessment of the defendant's credibility and financial/business practices. By relying on such hearsay in rendering his opinion, Dr. Kaplan belies the role of the court in assessing credibility, while simultaneously tempering and mollifying this Court's determination in finding the plaintiff's conduct to be contemptuous. This Court's determination, which was made after an extensive hearing conducted over twenty three days of testimony, may only be subject to appellate review ' that authority may not be abrogated to a third party.

This implicates a dilemma frequently encountered in custody evaluations. The evaluator is often faced with competing and conflicting allegations. Whenever the evaluator adopts one version over another as an assumption upon which conclusions are predicated, the evaluator necessarily makes a credibility-based finding of fact. Doing so assumes the risk that the court ' as the ultimate fact-finder and assessor of credibility ' may find the opposite to be true, in which event the evaluator's conclusion becomes quite worthless.

Suppose, for example, that the mother alleges the father is an abuser. The husband counters that the mother is an inveterate liar who is fabricating allegations of violence to game the system and gain an edge in the custody litigation. Which version is adopted as the operative assumption is critical to the validity of any conclusions based on that assumption. If the evaluator assumes one version is correct and the court determines the opposite, not much, if any, weight will be given to the evaluator's conclusions.

The evaluator can avoid this dilemma by reporting in the alternative: “If the court finds that the mother's allegations of domestic violence are true, these are the conclusions that would follow. Conversely, if the court finds that the father's response is more credible and that the mother has fabricated the allegations, the following conclusions would flow.” This is not a cop-out. It is simply recognition of the reality, as reflected by the empirical behavioral science research, that the mental health professional holds
no superior ability to discern falsehood. Austin, W.G., “Guidelines for Utilizing Collateral Sources of Information in Child Custody Evaluations,” 40 Fam. Ct. Rev. 177, 180 (2002); see also Ekman, P., O'Sullivan, M., “Who Can Catch a Liar,” Am Psychol, Vol. 46, No. 9, 913-920 (September 1991, APA). It is also an acknowledgment of the legal reality that it is the judge, not the expert witness, who gets to make the credibility call.

What is especially disturbing in the case under discussion is that the court had already made specific findings of fact on the alienation issue. The evaluator either knew or should have known that the court had made those findings. This would have been evident upon review of the underlying documents in the case. If they were not provided to the evaluator initially, it was his responsibility to request them. Practice Parameters for Child Custody Evaluation, ' I.B.1, J Amer Acad Child Adolesc Psychiatry, 1997; 36:57S-68S. If he failed to request and read the underlying documents, his inattention to proper methodology is nothing short of stunning. If the evaluator knew of those findings, his presumption in purporting to override them is nothing short of astonishing.

A Profusion of Peccadilloes

The evaluator's substitution of his own fact-findings is even more egregious in view of the many methodological deficiencies that the court highlighted in its decision: “In these respects, too, the report appears to be significantly flawed. Such apparent flaws include failing to confront the defendant with information obtained from the plaintiff's father; relying upon such information in formulating his opinion; failing to disclose that the plaintiff's father was a collateral source.”

Such conduct flies in the face of the Model Standards of Practice for Child Custody Evaluation promulgated by the Association of Family and Conciliation Courts which dictate that “All collateral sources contacted shall be disclosed by the child custody evaluator” (' 11.5) and that “any allegation concerning a matter that the evaluator is likely to consider in formulating his/her opinion shall be brought to the attention of the party against whom the allegation is registered so that s/he is afforded an opportunity to respond.” ' 5.5(a).

Likewise, the American Academy of Child and Adolescent Psychiatry, in its Practice Parameters for Child Custody Evaluation, indicates that “Each parent should be given the opportunity to respond to allegations raised about him or her by the other parent.” See, “Summary of the Practice Parameters for Child Custody Evaluation,” J Amer Acad Child Adolesc Psychiatry, 1997;36:57S-68S.

These official declarations reflect what ought to be a matter of common sense, namely, that it is important to obtain both sides of a story before jumping to conclusions.

Conclusion

In view of the many demonstrable flaws the court identified in the forensic report, it directed that there be a pretrial hearing to determine admissibility so as to afford the court “the opportunity to secure a new opinion, if necessary.” If the errors delineated in the court's decision are established at the hearing, it is difficult to conceive that the court would not throw out the report and commission a new assessment because the errors are so fundamental and egregious. They were also entirely avoidable. Even perfunctory adherence to the professional guidelines cited herein could have kept the train on the rails.

If the court tosses the report, the next inevitable question is whether it will direct the evaluator to disgorge whatever fees were paid to him. Otherwise stated, will the evaluator, who apparently acted in utter disregard of published professional guidelines, be rewarded for his efforts, no matter how misguided those efforts were? This question invites modification of the maxim cited at the beginning of this article: “If you keep on rewarding shoddy work-product, you'll keep on getting shoddy work-product.”

Given the potential impact of forensic custody evaluations to truncate the rights of parents and alter the trajectory of their children's lives, courts need to make an important institutional decision: What kind of forensic work-product do they want to receive? If the courts want a higher quality work-product, they have the power to get it. They need only raise the bar by rejecting substandard work as the judge did in this case. If the courts will only raise the bar, those evaluators who presently ignore professional guidelines and the empirical research of their discipline either will raise their game to meet the heightened standard or they will leave the forensic arena. Either way, the courts and the families whose futures are before them win.

Timothy M. Tippins, a member of this newsletter's Board of Editors, is an adjunct professor at Albany Law School and serves on the faculty of the American Academy of Forensic Psychology.