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May 23, 2004
For Arbiters in
Custody Battles, Wide Power and Little Scrutiny
By LESLIE
EATON
When warring parents head to
court to fight over child custody in New York, their lawyers often let
them in on a little secret:
The most powerful person in the process is not the judge. It is not the
other
parent, not one of the lawyers, not even a child.
No, the most important person in determining who
gets custody, and on what
terms, is frequently a court-appointed forensic evaluator.
Forensics, as they are often called, can be psychiatrists, psychologists
or social workers; they
interview the families and usually
make detailed recommendations to judges, right down to who gets
the
children on Wednesdays and alternate weekends.
And the judges usually go along.
Forensic reports, which the parents pay for, can cost as
much as $40,000 or even more. There are no
standards for who can be an
evaluator or what should go into an assessment. The court system does
not
track who gets these lucrative appointments, much less
whether evaluators tend to favor fathers
or mothers or joint custody.
Some lawyers and parents suspect that cronyism plays a big role in some
appointments, but given
the secrecy surrounding
matrimonial cases, that is hard to prove, or disprove. Others say there
is
nowhere to lodge complaints about mistreatment.
And many including some forensics question
whether there is any scientific
basis to justify the evaluators' recommendations.
In Suffolk County, judges repeatedly appointed a psychologist who was not
licensed to practice in
New York State. In Manhattan, an
evaluator remained on a case even though there was evidence
that he had
had business dealings with one spouse's lawyer. In Westchester
County, an expert
charged parents $57,000 for a report that the judge
found extremely biased toward the father.
Though they have been around for years, court-appointed forensics have
become increasingly
commonplace and controversial in New York,
which may be the high-conflict custody capital of
the nation. But similar
debates about custody evaluators are going on across the country,
experts say, as divorce rates continue to rise and courts try to cope with
the needs of children
caught up in a contentious process.
"It's boiling over everywhere," said Peter Salem, executive director of
the Association of Family
and Conciliation
Courts, based in Madison, Wis.
In Arizona, the governor recently signed a law changing the state's
process for investigating
complaints about psychologists, in part
because of controversy over forensic evaluations. In
Louisiana, a
committee of the state board governing social workers is considering
creating
standards for evaluations.
And over the last few years, California has adopted a series of court
rules that require training
for forensics, set standards for evaluations
and provide mechanisms for filing grievances against
evaluators, said
Philip M. Stahl, a psychologist and frequent lecturer on custody
evaluations. "It's
the only state where the rules are very specific," he
said.
In New York, forensics' roles are being debated at judicial conferences,
psychiatric conventions
and impromptu meetings of disgruntled parents.
Even the court system has decided to take another
look at them, through a
commission appointed in February by the state's chief judge.
Forensics "have really become arbiters of what happens in a case," Raoul
L. Felder, the divorce
lawyer, said
disapprovingly. "I just think somehow they've seeped into the judicial
process."
Some people think that is as it should be. "With some exceptions, I didn't
try a contested custody
case without a forensic assessment,"
said Philip C. Segal, a former Family Court judge now in
private practice.
"They were extremely helpful, even critical."
Custody cases are difficult and emotionally fraught, he said, adding that
judges need help
"analyzing the family
dynamics, analyzing the parents' respective abilities." Judges must decide
custody cases based on the best interest of
the child in question, and they can appoint a "neutral
expert" whenever
they think it would be helpful in making that decision.
Some judges ask the parties' lawyers to agree on a forensic or to provide
a list of candidates;
others simply name an evaluator. Some judges
have very specific questions they want addressed;
others just call for an
evaluation. Many, though not all, want detailed recommendations.
The American Psychological Association's guidelines state that while
evaluators may determine
whether either parent
has severe psychological problems, that is not their main goal. Rather,
evaluators are supposed to judge the parties'
"parenting capacity" and how that fits the psychological
needs of the
child.
Forensics themselves do not agree on how to conduct a proper examination.
Some order
psychological tests, while
others avoid them; some interview baby sitters and teachers, while others
do not.
In the end, the evaluator gives the court a report that usually makes
detailed recommendations
about custody
arrangements. The parents are not generally given copies; in some cases,
they are
not even allowed to read the reports.
At that point, the parents usually settle, "which we would much prefer,
for the parties' sake," said
Justice Jacqueline W. Silbermann,
the administrative judge for matrimonial matters in New York
State. The
reports' usefulness in encouraging settlements is one reason judges
order them, she said.
But what pleases the judges sticks in the craw of some litigants, who say
they feel bludgeoned
into settling by a report
that does not favor them, even when they believe that the report is deeply
flawed. Some lawyers contend that the evaluations
actually discourage settlements in certain cases
because the favored party
feels no need to compromise.
The only way to challenge a forensic report is to go through a full trial
and then cross-examine the
evaluator; parties can also hire their own
experts to critique the court-appointed forensic, but
generally cannot
have the family evaluated by someone else.
In the meantime, judges are reading evaluators' reports and making
decisions based on them,
with no way to know
whether the observations and conclusions are correct, said William S.
Beslow, a prominent matrimonial lawyer in Manhattan.
"In eight years, I have not participated in a case with a forensic report
that was not substantially
erroneous in one of
its major conclusions," Mr. Beslow said. "And some are so wrong that they
have disastrous consequences for families."
Underlying all the concerns about forensic evaluators is the question of
whether they are offering
the court scientific
expertise or unsubstantiated opinions.
Jeffrey P. Wittmann, a forensic who has done hundreds of evaluations, says
that his colleagues
have been giving the courts both, and that
they should stick to the scientific evidence. Dr. Wittmann,
co-director of
the Center for Forensic Psychology in Albany, said he stopped
making specific
recommendations to judges six years ago, and has urged
colleagues to do the same.
The reason, he said, is that forensics do not really know, with any degree
of certainty, what
is in a child's best interest.
Little scientific research on the subject exists.
Forensics do provide courts with useful information, he said, but drawing
conclusions about the
child's best interest and making recommendations
on custody and on visiting is inappropriate,
even unethical. "We have
become like mini-judges," he added, "and it's a big mistake."
Among psychiatrists and psychologists, Dr. Wittmann's argument is far from
the most extreme.
William O'Donohue, a psychology professor
at the University of Nevada, Reno, is calling for a
moratorium on forensic
evaluations until more research is done.
"Psychologists don't have the knowledge to do what they attempt to do when
they do custody
evaluations," he said.
Many custody decisions, he said, involve not scientific findings, but
competing values, like a
father's wish that his child
excel in sports versus the mother's emphasis on studying.
While mental health experts have been debating these issues for several
years, the legal world
has been slower to
recognize them, at least in New York.
Enter Timothy M. Tippins, an Albany lawyer who increasingly specializes in
cross-examining
forensic experts. For
almost a year, Mr. Tippins has been writing articles in The New York Law
Journal questioning the role and expertise of
forensic evaluators in custody cases. He has
teamed up with Dr. Wittmann
to write a paper titled "Empirical and Ethical
Problems With
Custody Recommendations: A Call for Clinical Humility and
Judicial Vigilance."
Among its recommendations is a call for judges to "begin to help the
psychology discipline rein
in itself" by not
demanding or accepting specific custody plans.
In March and April, the two presented their arguments to conferences of
New York State judges;
later this year, they
will speak to judges at the state's appellate level.
Some judges have welcomed his arguments, Mr. Tippins said. "I think they
had on their antennae
that something was
amiss with these reports."
In part as a response to Mr. Tippins, Dr. Alex Weintrob organized a
symposium on the scientific
basis of expert
testimony in matrimonial disputes at the American Psychiatric
Association's annual
meeting this month in Manhattan.
Dr. Weintrob, a well-known child psychiatrist who does evaluations, said
later that "there is more
science than some people give us credit for."
On the other hand, he added, "it is important that we
be aware of our
limitations," citing as an example the lack of follow-up studies to see if
forensics'
predictions worked out. "We all know it and are a little
embarrassed by it."
Even proponents of forensic evaluations are troubled by the secrecy that
envelops the business,
and the large sums
of money that change hands, by order of the court.
"It's an industry, and it's unregulated, and it affects precious family
rights," said Andrew I. Schepard,
director of the
Center for Children, Families and the Law at Hofstra University. "It would
be lots better
if this process were more transparent."
The secrecy alone raises questions in the minds of some parents. One
woman, a Manhattan
financial analyst who spoke on the condition
that her name not be used because her court case
is continuing, said she
had heard from other parents that the evaluator in her case had
a history of recommending that custody go to fathers. But, she complained,
there is no way to
know for sure.
In Kaye v. Kaye, an extremely bitter divorce case in Manhattan, the mother
discovered that her
court-appointed forensic
had participated in a business venture with four other people involved in
her case, including her ex-husband's lawyer.
This gave her grave doubts about how neutral he truly was, she said,
speaking on the condition
that her first name not appear in print. Judges
are required to disclose their ties, she said, "and
the same should be
true of neutral officers of the court."
Justice Judith J. Gische denied the woman's request for a mistrial, ruling
that the business ”a
limited partnership
with a divorce-related Web site called SoftSplit.com, now defunct ” was
a
for-profit educational venture, and that the
lawyers, forensics and others involved were not "in
business" together. An
appeal of that decision is pending.
But the conflict-of-interest allegations about SoftSplit, which were
reported by The New York
Post last year, are still stirring up such hard
feelings among lawyers and forensics that Donald
Frank, the lawyer for the
mother, refused to discuss the case.
Few parents are willing to talk publicly about their experiences for fear
of seeing painful family
matters aired in the
press, or of being dragged by into court by the other parent. They also
say they are often dismissed as disgruntled litigants
who are angry that the evaluator did not favor them
(which, of course,
they often are).
The American Psychological Association's ethics committee reports that a
rising percentage of the
complaints it
receives involve forensic evaluations. And Dr. Spencer Eth, a member of
the ethics
committee of the American Psychiatric
Association, said local branches of his group also investigate
many
complaints about forensic evaluations. While such
complaints seldom result in a psychiatrist's
being suspended or removed
from the association, he said, doctors are
sometimes reprimanded or
educated about the proper way to conduct
evaluations.
The association takes on this role in part, he said, because state
licensing boards tend to be
ill-equipped to deal
with problems that crop up in psychiatric practices, including some that
are
almost etiquette issues: a doctor's rudeness,
for example, or his failure to return telephone calls.
New York's court system does not have a formal mechanism for receiving
complaints about forensics,
and because
they are officers of the court, they cannot be sued for malpractice.
The rules governing matrimonial matters are being re-examined by a
commission appointed by the
state's chief judge, Judith S. Kaye.
The commission will examine the role and use of forensic examiners, said
Justice Sondra Miller,
the appellate division judge who is leading
the group. After holding public hearings, she said, it
will make
recommendations to Judge Kaye, probably in about a year.
In the meantime, however, some lawyers say they believe that judges are
becoming more skeptical
about forensic reports, and may use them
a little less. One such lawyer is Norman M. Sheresky, who
represented a
mother who prevailed in a Manhattan court despite an evaluator's
recommendation in
favor of the father. The judge tossed out the report's
findings as biased, he said.
"I think that will happen more and more," Mr. Sheresky said. "I think the
judges are getting wise."
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