Page one: an illustration of the process
Page two: a conversation by psychs about a child custody evaluation
Page three: the same psychs discuss a diagnostic dilemma
CASE ONE(1) The parties each have a limited but adequate amount
of litigation funds. Each of them hires a lawyer.(2) Lawyer A subpoenas witnesses and gathers evidence pertaining
to each of the statutory custody factors.(3) Lawyer B subpoenas witnesses and gathers evidence pertaining
to each of the statutory custody factors.(4) The witnesses are deposed, and each party's evidence
is examined by the other.(5) A date is set for hearing, for which the judge has
allowed adequate time to hear all the evidence.(6) At the hearing, the witnesses testify in court, and
the documentary evidence is introduced into court, all in accordance with the rules
of evidence that have been developed to help assure the reliability of
the evidence, and subject to cross-examination.(7) The judge makes a decision. Maybe it's appealed. And maybe it's not. But for now at least, it's...
(8) Done.
The primary reason psychologists and other mental health professionals
should be banned from the family court systems, except to answer
limited and narrowly-defined questions actually within their expertise,
is that their presence does not add value, but rather, wastes court, lawyer, and litigant time, money and resources.Consider two cases, below, simplified to highlight pertinent parts. In both cases, Parent A and Parent B are contesting
custody. There are a number of statutory custody factors which the judge
must consider. Some factors carry with them a presumption regarding how
they are to be weighted or who has the burden of proof, and other factors
do not.
CASE ONE(1) The parties each have a limited but adequate amount
of litigation funds. Each of them hires a lawyer.(2) Lawyer A subpoenas witnesses and gathers evidence pertaining
to each of the statutory custody factors.(3) Lawyer B subpoenas witnesses and gathers evidence pertaining
to each of the statutory custody factors.(4) The witnesses are deposed, and each party's evidence
is examined by the other.(5) A date is set for hearing, for which the judge has
allowed adequate time to hear all the evidence.(6) At the hearing, the witnesses testify in court, and
the documentary evidence is introduced into court, all in accordance with the rules
of evidence that have been developed to help assure the reliability of
the evidence, and subject to cross-examination.(7) The judge makes a decision. Maybe it's appealed. And maybe it's not. But for now at least, it's...
(8) Done.
Continued, next page: The Detectives
and on page three: The DiagnosticiansErroneous
Belief in Benefit Where None Exists.
Isn't it Time We Ditched this Bad
Idea?
Also see therapeutic
jurisprudence index
Why therapeutic jurisprudence must be taken out of our family courts
"On the basis of the 'best interests of children standard', mental health professionals are not currently capable of offering scientifically derived opinions detailing an appropriate custodial placement for a child." -- Daniel A. Krauss & Bruce D. Sales, Legal Standards, Expertise, and Experts in the Resolution of Child Custody Cases, 6 Psychol.Pub.Pol.L.866 (2000)
Kates:
Reevaluating the Evaluators - Rethinking the AssumptionsStudies indicate that parents who are subjected to the forced and artificial arrangement of their families by third party evaluators have two to two and a half times the rate of relitigation of parents who do not undergo the custody evaluation process. See Ash, P. and Guyer, J.J. (1986b). Relitigation after contested custody and visitation evaluations. Bulletin of the American Academy of Psychiatry and the Law, 14, 323-330; and Johnston, J.R. (1999) Developing and testing group interventions for families at impasse. Final Report submitted to the Statewide Office of Family Court Services, Administrative Office of the Courts, Judicial Council of the State of California, San Francisco.
CASE TWO, having the addition of a helpful
CUSTODY EVALUATOR(1) The parties each have a limited but adequate amount
of litigation funds. Each of them hires a lawyer.(2) Lawyer A subpoenas witnesses and gathers evidence pertaining
to each of the statutory custody factors.(3) Lawyer B subpoenas witnesses and gathers evidence pertaining
to each of the statutory custody factors.(4) The witnesses are deposed, and each party's evidence
is examined by the other.(5) A date is set for hearing for which the judge, peeved that the case didn't settle, and in the habit of avoiding responsibility for custody issues, allows inadequate time to hear the evidence.
(6) At the hearing, the lawyers rush through an inadequate
presentation of their respective cases. At the end of this inadequate cursory
hearing, the judge does not feel that he has sufficient information to
make a decision, and so his ruling, as he anticipated for that likelihood, is for the appointment of a custody
evaluator.(7) The parties are ordered to take a portion of their
litigation funds and divert them to payment of the evaluator. When one
party objects, the judge makes a snappy quip poo-pooing this objection
and pointing out that the party had plenty of money to hire a private lawyer
and issue lots of subpoenas and do depositions. (The delays also screw up decision-making on financial issues)(8) The evaluator,
a psychologist or other mental health professional, not qualified
by training to act as a judge or investigator or legal analyst,
let alone pose as an "expert" in these matters, who nevertheless
believes he is the "eyes and ears of the court" and
all-around uber-mavin, commences his detective
work.
He reinterviews some of each party's witnesses
and ignores others. He decides that he needs to hear from school personnel, doctors, and other
"collaterals" who have not been introduced by either party
and proceeds to send these people letters, and hold telephone and in-person
interviews with them. Some of them he finds credible, and some not, and
on his own, weights what they have to say accordingly.
He second-guesses the parties' respective presentations
of the various custody factors, and decides that some of them, such as
"morality" are not relevant. He ignores legal presumptions or
burdens of proof applicable to others, because he does not understand them.
He applies a criminal law burden of proof ("beyond a reasonable doubt")
to factors that strike him as being similar to criminal matters. To others
that he feels come within some area of his "scientific expertise"
he applies the standard of "to a reasonable degree of scientific certainty"
-- and if they don't meet that, discounts them altogether.
He has the parties and the children come back and forth to his office for multiple meetings in different combinations. He also has all of them sit for a battery of psychometric tests. He decides that there are diagnoses
that could be applied to one or both parties, as well as additional issues in the case that they could
have but did not introduce, and so includes these.
He does a home study in which he fantasizes about whether he would enjoy living as a kid in the parties' respective houses.... etc.(9) The custody evaluator issues a report with recommendations,
which may or may comport with what the judge in Case One would have decided,
but frequently are somewhat or altogether different, and in some cases are
completely crackpot, the result of ignorant thinking riddled with bias. But let's not presume anything for purposes of this exercise, and say only that Party A likes the recommendations and Party B does not. If
one or both parties now have been drained of available funds, an unhealthy, unjust, or unworkable settlement
might occur at this point. If not...(10) A date is set for a second hearing, for which the court
again allows inadequate time to hear the evidence because he thinks he
can rely mostly on the court-appointed custody evaluator's recommendations. This second hearing is going to be primarily about, not the
case, but the custody evaluator and what he did.
Even though the court has shortchanged the parties' time at both hearings,
the combined time, with the addition of multiple interim hearings and discovery squabbling, will now likely far exceed what the judge in Case One had
to provide.(11) Lawyer A issues subpoenas and gathers evidence pertaining
to the custody evaluator, his training, and the favorable and/or new witnesses and
hearsay evidence he used in his report, in order to support Lawyer A's
case at the upcoming second hearing. Some of this involves re-doing work
already done for prior witnesses who, according to the evaluator,
provided evidence different from their prior testimony.(12) Lawyer B issues subpoenas and gathers evidence pertaining
to the custody evaluator, his training, his investigation process, his
tests, and unfavorable and/or new witnesses and hearsay evidence he used in his
report. Some of this is requires legal wrangling with a recalcitrant psych, or psycho-babble-specific work, which induces Lawyer B to hire a consulting forensic. Some of this involves re-doing work already done for prior witnesses
who, according to the evaluator, provided evidence different from their prior testimony.(13) The amount of legal work for the parties and lawyers, and the complexity and cost of the case now has been increased exponentially. Exacerbating this...
(14) Party B hires a reviewing evaluator to help him prove
that the court-appointed evaluator was inexpert, untrained, biased, or
otherwise did his evaluation improperly, and plans to move for a second
evaluation.(15) Lawyer A issues subpoenas and evidence pertaining
to the custody evaluation reviewer, his training, his thinking processes,
and depending upon how bad the court appointee apparently was, also may
hire a consulting forensic...(...) At some point it's such a mess that no one remembers
what the issues in the case originally were. Years may go by. Judges
rotate and change. Parties run out of money. Lawyers withdraw
for nonpayment. Tempers flare. Mistakes are made. Squabbling
over discovery geometrically increases.. Because of the lengthy time in which
the litigation continues, new events occur which have to be addressed.
Temporary judicial orders based on inadequate and bad evidence have been
repeatedly uttered, contested, and possibly appealed. A frustrated judge
may order a parenting
coordinator. One or the other party may be ordered into various supervised visitations or therapies at the recommendation of the custody evaluator, or of a guardian ad litem who thinks that custody evaluators know what they are doing. Parties positions harden and polarize. An inordinate amount of parental time and money, resources
that otherwise should have gone to the family and for the children is
forever gone... and it just goes on and on...An improvement, do you think?
...Children need This?
