Role of Therapists in Family Law Litigation - Child Custody Attorney Lawyer Los Angeles, CA

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ROLE OF THERAPISTS IN FAMILY LAW LITIGATION

Forensic mental health professionals serve a valuable role in child custody cases. They conduct
custody evaluations, assist attorneys in understanding psychological issues, and help a client present
the best version of their true selves to the Court. Judges look to such experts to provide insightful
information that makes testimony clearer, as well as help the parties better understand the needs of the
children. 1   In some cases, a forensic mental health professional (FMHP) can play a more mediative role
and help parents avoid costly litigation by enabling them to work together to make their own parenting
plans. 2   This article is intended to serve as a summary of the views expressed by therapists, attorneys
and Judges in the January issue of the Journal of Child Custody. 3

New Roles Lead To New Ethical Responsibilities

Today, FMHPs are frequently hired by attorneys on one side of a case to join the litigation team and
perform consulting functions that are far from traditional roles as court appointed neutral evaluators and
mediators. 4 FMHPs are now being utilized to keep abreast of the growing body of research on social
and psychological factors of complex custody cases, to critique the data from custody evaluations, to
manage distraught or difficult clients, and to collaboratively forge settlements. 5   Professional behavior
is not well defined in this new territory. In fact, the Association of Families and Conciliation Courts
recently convened a task force to explore the ethical problems that arise from FMHPs assuming various
roles in the legal field. 6 A key decision from the outset is who should retain the FMHP. If the FMHP is
retained by an attorney and is not a testifying expert, their work will have the protections of attorney-
client privilege and work product doctrine. 7   If the client retains the FMHP directly, these legal
protections may not be available. 8

When an FMHP is retained by an attorney, the ethical responsibilities become more complex. There is
a duality to the role of retained experts – they are retained for a particular purpose, but they also have
an ethical role to be objective. 9 The client paying both the attorney and FMHP’s bills, directly or
indirectly, expects zealous representation. FMHPs must be attuned to what is in the best interests of
the children. 10 Influence also comes from the attorney who can easily draw the FMHP into their
advocacy perspective and responsibility to work diligently on behalf of their client. 11 Although attorneys
know that licensed mental health professionals have a professional code of ethics and licensing boards,
they may not know the finer details of an FMHP’s ethical responsibilities. 12

Many argue that it is possible for a retained expert to not have to choose between integrity and
advocacy. 13 To this end, both the Specialty Guidelines for Forensic Psychology and the Professional
Code of American Society of Trial Consultants maintain the importance of managing expectations
between the retaining party and consultant through the establishment of a clear contract. 14    In
addition, FMHPs should stay true to the data of the case and take special care to avoid any undue
influence on their methods and work products that could result from financial or personal pressure by
the retaining party. 15 Although an FMHP consultant may feel pressure to side with the client, the
scientific process, Daubert requirements, and Specialty Guidelines call on the consultant to weigh the
merits of rival hypotheses, and discuss bases for opinions rendered. 16 The Committee on Ethical
Guidelines for Forensic Psychologists clearly states: “[as] an expert conducting an evaluation,
treatment, consultation, or scholarly/empirical investigation, the forensic psychologist maintains
professional integrity by examining the issue at hand from all reasonable perspectives, actively seeking
information that will differentially test plausible rival hypotheses.” 17 The consultant’s independent ability
to view the strengths and weaknesses of the case is an important part of one’s role and can help the
attorney and client form realistic views of their case. 18 Forensic experts in the field have addressed the
concern over their dual roles by discussing their professional autonomy. Even though attorneys may
tend to retain experts whose positions are likely to support their own, that does not mean the FMHPs
should tailor their findings to meet the needs of those retaining attorneys. 19 It is also important to keep
in mind that experts have a responsibility to alert the Court to any conflict between law and ethics. 20

The Testifying and Non-Testifying FMHP

Hon. Dianna Gould-Saltman, a Judge in the Superior Court of California, asserts that the testifying
FMHP typically embodies one of four roles: “(1) court appointed, neutral evaluator; (2) case-blind
didactic expert, who only provides information about research without having reviewed any case related
documents; (3) testifying, evaluating expert hired by one side to conduct an evaluation; and (4) work
product reviewer, hired by one side, who, after having completed a review, testifies to his/her
assessment of the work reviewed.” 21

                             (1) Court-Appointed Neutral Evaluator

A court-appointed neutral evaluator’s sole allegiance is the Court; they are appointed because the
Court can rely on their neutrality. 22 The court-appointed neutral evaluator’s role is to provide a neutral,
objective, and impartial evaluation of the parents and to make recommendations to the Court on the
best interests of the child. 23 Hon. Gould-Saltman makes the point that a neutral evaluator is more
valuable and useful to a Court than a biased evaluator. 24 As a legal tool, Courts benefit from the
knowledge gained from a neutral evaluation based on sufficient data; the evaluation can also provide
an impartial basis for settlement. 25 In contrast, the more lopsided the evaluator’s bias, the less
credibility their opinions will have with the Court, and the less room they leave for settlement
negotiations. 26 Parents can also benefit from an unbiased assessment of their strengths and
weaknesses as parents. 27 With this information, they can learn ways to improve their parenting skills,
and may be reassured of concerns about each other’s parenting tactics. 28

The fact that families are making a transition from one family group to another often gets lost in
litigation. 29 Courts recognize that resolving a case with the parties working together and reaching a
decision themselves is superior to going down the litigation path. 30   When the case is over, the parents
will still have to co-parent and a raise a child; as another Superior Court Judge, Hon. Mark Juhas, puts it
in his article- “if the litigation process destroys the parents’ ability to meaningfully co-parent, then the
system tragically fails the parents and their children.”31 Today, Courts expect experts to educate the
bench and the litigants while working with an eye towards resolution of the case. 32 This can start with
early intervention case resolution, in which FMHPs can educate and encourage families to resolve
matters on their own while their positions are still malleable. 33 Often, education on the best interests of
the children and the child custody process can lead to parents opting against arduous litigation in
Court. 34

In cases where one or both sides are not represented by attorneys, the FMHP may be the only expert
working with the parties and the only person who knows what the judge needs in order to make orders.
35 The expert can talk to the family about the challenges of litigation and use the evaluation as a
teaching and learning process. 36 However, it is critical to the process and to the expert’s ability to
evaluate and assist the family that “the expert be viewed as neutral and above reproach.”37 More than
anyone else in the case, the expert has the ability to talk to all of the parties. 38 The expert can point out
the strengths and weaknesses of both parents, and suggest tools to help them focus on their children. 39

Hon. Mark Juhas provides some tips for an expert writing an evaluation report: clearly and concisely set
forth facts relied upon, flesh out reasons for conclusions, show how these opinions were based on
research and literature, and include details as to the unique aspects of each parent/child relationship
and whether they work successfully or not. 40

                                       (2) Case-Blind Didactic Expert

As a general rule, the case-blind didactic expert should be used when a case requires expertise beyond
mere common knowledge. 41 Usually these situations arise with novel or unique legal issues or when a
judicial officer is new to family law. 42 For example, experts on special needs children can be useful in
educating the Court about a particular disability and treatment or special education options. In contrast,
utilizing didactic experts in simpler cases is risky because it can unnecessarily over-complicate matters.
43 The case-blind didactic expert informs and educates the Court about specialized, technical, or
research-based knowledge as opposed to case-specific testimony. 44 This could involve a summary of
research on an issue, theoretical or conceptual descriptions, and forensic models that are relevant to
child custody issues. 45   Sometimes, instructional testimony is applied to the facts of the case through
the use of hypothetical questions. 46

Keep in mind that a good attorney will easily be able to question the credibility of a case-blind didactic
expert who presents a one-sided view of psychological literature in support of their position. 47
Furthermore, time pressures are something to also remember. As Hon. Mark Juhas explains “[c]ourts
no longer have the luxury of listening to long rambling presentations of facts or opinions that have very
little bearing on the family at bar.” 48

                                          (3) One-Sided Evaluator

A testifying evaluator is rarely hired by one side to conduct an evaluation. 49 This is due to the fact that
a one-sided evaluator does not have the same standing as the court-appointed expert. 50 A one-sided
evaluator’s testimony is not given much weight because such evaluations are conducted simultaneously
with or after the court-appointed evaluation. 51 In contrast to the court-appointed evaluator, the one-
sided evaluator starts with an incomplete set of data – it is based solely on how much information the
single participant is willing to disclose. 52 The one-sided evaluator does not have access to all of the
original data. 53 Access to only one of the parents is unlikely to render enough information to form
opinions about any parenting arrangements. 54 Furthermore, the one-sided evaluator is hired by one
side, and until declared as a testifying expert witness, their role is cloaked by the attorney-client
privilege and work product doctrine. 55 In particular cases, a one-sided evaluator can be useful if hired
to focus on limited issues that would not need a full set of information. 56

                                           (4) Work-Product Reviewer

The work-product reviewer’s role is distinctly different from the evaluator’s role. 57 The reviewer is
retained by one party to review or critique the work product of the court-appointed neutral evaluator. 58
The work-product reviewer testifies about the methodology of the underlying evaluation and, other than
cross-examination, may be the only safeguard against improper evaluations. 59 This is an important
function because various independent practitioners have reported that there are concerns about the
quality of child custody evaluations: “the available research indicated there are reasons to be
concerned about the general quality of custody evaluations, not surprisingly, given the wide variance in
the training and experience of evaluators to conduct what may be the most complex and difficult of all
forensic mental health evaluations.” 60

When looking at data, newer judges do not always know if conclusions are too broad or multiple
hypotheses have not been explored. 61 Bench officers do not have the time to keep up with all of the
current literature of mental health professionals in family law. 62 In some cases, the evaluator does not
completely understand the family’s culture or makes factual errors. 63 Work-product reviewers can
identify when data is too limited, is not sound, should not be relied upon, or when it could have led to a
different recommendation. 64 Reviewers help the Court see flaws in the evaluator’s methodology and
when the evaluator’s recommendations go beyond their expertise. 65 Some independent practitioners
argue that the overriding goal of the reviewer, although an expert witness for one of the parties, should
be helping the Court (much like the goal of the court appointed neutral evaluator). 66 This entails
presenting balanced testimony and objective analysis to the Court.

There is some discussion over whether a work-product reviewer should review new data from events
that occurred after the completion of the initial custody evaluation or data that was not seen by the
evaluator. 67 One view suggests that a reviewer should only review the evaluator’s methodology and
steer clear of any material that is not in the evaluator’s case file; the alternative viewpoint is that review
of new data should be allowed. 68 This issue can extend to new data gleaned as retained experts listen
and observe evidence presented in trial. 69

There is a contradictory opinion on the role of the work-product reviewer in Court. Hon. Mark Juhas
reveals that solely challenging the methodology of the report has little practical value to a judge’s
decision making process and can take time away from more important testimony in the case. 70 Each
family situation is unique and may not conform to the same methodology; unless there is a blatant
disregard for professional guidelines, judges may simply discount this type of testimony. 71

On the other hand, work-product reviewers can be helpful to an attorney. 72 They can explain the
strengths and weaknesses of an evaluation to both the attorney and client. 73 It is important to keep in
mind that work product-reviewers start as non-testifying consultants. 74 The purpose of their work is to
conduct an objective assessment of the overall forensic quality of the work without any preconception
that the purpose is to find only the weaknesses and deficiencies in the evaluation report. 75 If the
underlying evaluation is sound, then they can help explain the report, implement its recommendations,
and incorporate the findings into the settlement process. 76 It is only when the underlying evaluation
report is sufficiently flawed that the work-product reviewer becomes more than an advisor. 77 In those
cases, the expert would then actually testify about the weaknesses of the evaluation report. 78

To maintain objectivity and avoid undue influence, an article by private practitioners and an attorney
suggests that a work-product reviewer use two separate contracts. 79 The first contract is simply for the
work product review and its methodology. 80 At the end of the work product review, FMHPs can
communicate the findings orally to the retaining party. 81 The oral communication is necessary because
any work product generated by the expert during this time will not be protected by the attorney-client
privilege if the FMHP later becomes a testifying expert. Only if the findings are supportive of the
retaining party’s legal positions will they enter into a second contract to offer litigation support or expert
testimony; otherwise they will usually part ways and the use of the expert will most likely be undisclosed.
82

                                             Non-Testifying Consultants

Generally accepted non-testifying consultant tasks include reviewing a work product and writing direct
and cross examination questions, presenting research to the retaining attorney or client for educational
purposes, identifying the psychological elements involved in legal strategy, and assisting in case
preparation and presentation. 83

Sometimes, the FMHP can become involved in child custody cases as therapists for one of the parties
or the children. 84 Some have written about the need to differentiate between the therapeutic role and
expert role of the FMHP. 85 A child custody’s evaluator role is researching a family’s functioning while a
treating therapist’s role is intervention. 86

If a testifying FMHP later comes to Court in assistance of one of the attorneys, this can compromise the
FMHP’s credibility with the judge. 87 If they have presented themselves as educators to the Court and
then are seen providing litigation support, the judge will probably conclude that their previous testimony
was biased. 88 A non-testifying FMHP communicating with a client in front of a judge can also alter
perceptions and should be avoided. 89 Also, there are serious ethical considerations to be taken into
account when an FMHP in attempting to explain the evaluation process crosses a line into coaching a
client to give false evaluation responses and perpetrating fraud on the Court. 90

In advising and preparing witnesses, the American Society of Trial Consultants (ASTC) guidelines
makes distinctions “between providing information, feedback and guidance, versus unethical
approaches such as scripting, shaping, and instructing witnesses.” 91 According to those guidelines, a
consultant crosses a line when he or she becomes too directive or instructive about what content
should be in the client’s testimony. 92 Clear breaches of ethics include assisting a parent to fill out a
custody evaluation or previewing to clients parts of psychological tests such as the MMPI-2 or the
Rorschach. 93 When meetings occur prior to trial, the consulting expert can conform to ethical
standards by advocating that the parent tell the truth, avoiding the manipulation of the parent’s
participation in any custody evaluation or trial proceeding, operating within the bounds of the consultant’
s expertise, and understanding the limits of confidentiality. 94

Hon. Gould-Saltman artfully describes the proper role of a non-testifying FMHP:

“Mental health professionals who prepare attorneys by helping them understand psycho-legal

issues – and help craft questions that will make testimony clearer for the judge- also do a service

for the court (as well as for the attorneys and parent-litigants). Those who “polish” the parent-

litigant by reducing the parent-litigant’s anxiety about the process and help the parent-litigant

present his or her best self, may also be assisting the process. Those who “sandpaper” the

parent-litigant by trying to reshape the parent-litigant into something he or she is not often do

more harm than good to that parent-litigant. After all, when you use sandpaper to reshape

something, inevitably you end up exposing what is underneath, for good or bad.”

Additional articles on Child Custody:

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell to discuss your
custody issues.
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