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Foundational Scrutiny of Forensic Custody Opinions
It has been this author's experience, while assisting attorneys with the task of challenging custody opinions that either didn't fit with their client's interests or that appeared incongruent with a child's needs, that sometimes a critical step in the process is missed due to superficial cross-examination. Consequently, an important opportunity to educate the court is missed.
Cross-examining attorneys dealing with an adverse evaluator as a witness will attack such deficiencies as bias in the evaluation process, failure to contact certain collateral sources, or the choice by an evaluator not to conduct a home visit (all important factors to address). However, attorneys often fail to go at the actual empirical foundation underpinning the business of forensic experts selecting and recommending which parent should get custody and what the custody and visitation schedule should be.
While a meaningful list of academics and practitioners have asserted over the past several decades that psychologists and psychiatrists have an insufficient basis for making custody recommendations and that the practice of offering them should cease on ethical and evidentiary grounds, the deficiencies in the field are seldom amplified by lawyers in their cross examinations of custody evaluators. Evaluators are seldom challenged, with any depth, to make clear for the court that they in fact know what they say they know.
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