Stephen Gassman and David A. Martindale ()
On July 2, 2014, a decision by Justice John Colangelo was handed down in E.V. v. R.V.,1 a Westchester County custody case that has already received significant attention.2 Colangelo’s 42-page detailed decision carries important lessons for lawyers and mental health professionals (MHPs) who engage in custody practice. This article addresses issues that attend litigant preparation by MHPs and the tactical problems and opportunities such preparation presents, as well as the ethical obligations of MHPs who offer such services.
Facts of the Case
E.V. v. R.V. was a post-judgment modification proceeding brought in Westchester Supreme Court. (Co-author David Martindale, a forensic psychologist, was retained by counsel for E.V. as a potential witness, but did not testify.) The parties had been divorced by a judgment issued in January 2009. Concerning custody of the parties’ son, then age 3, the court, over the mother’s objection, granted an equal access time-sharing schedule and conferred final decision-making power upon the mother. In November of that year, the Appellate Division unanimously affirmed the equal access schedule and modified the decision-making provision to require the mother to consult with the father prior to making decisions.
Legal proceedings resumed in September 2010, when the father filed an application to hold the mother in contempt for violating the access order. The mother, now represented by new counsel, recruited a Westchester psychologist recommended by her divorce lawyer as the child’s therapist. She then enlisted a psychiatrist and a psychologist in Manhattan to find a diagnosis to justify disrupting the father’s access. Significantly, other than the child’s therapist, not one of the MHPs involved with the child was called to testify. The court noted that during “the short span of 10 weeks in mid-2010, Plaintiff subjected [the child] to a battery of at least 20 appointments and special tests, all as a prelude to her application to cut [the child] off from his father, and reduce [the child's] contact with him.”
The court-appointed evaluator conducted interactive parent-child sessions and found that the child was “hungry” for contact with his father. The evaluator found a “continuous thread of [the mother's] alienation of [the child] from his father.” He stopped short of recommending that the mother lose custody of the child, but testified that if she did not support that relationship, the child would be “deprived of his childhood.”
The trial court, after listening to the mother’s testimony and observing her demeanor for 25 days, concluded that she was incapable of tolerating, much less supporting the father-son relationship. The court noted that notwithstanding the evaluator’s recommendation in January 2012 of “an immediate resumption of meaningful access of [father] to [son],” the mother continued to oppose every application by the father to restore that access.
In its decision, the trial court ordered restoration of an equal-access arrangement but, significantly, shifted decision-making authority to the father, finding explicitly that the mother “cannot be trusted” to make decisions in the child’s best interests.
A Dangerous Tactic
As is evident from the decision, the trial court found the mother misused numerous mental health professionals in pursuit of her goal of cutting the father out of the child’s life. While accepting the evaluator’s findings and most of his conclusions concerning the mother’s ongoing alienation, the court did not adopt the evaluator’s specific recommendation on the ultimate issue of what custodial arrangement would serve the child’s best interests.
The court carefully delineated its reasons for so doing, articulating those facts of which the evaluator had been unaware. Particularly noteworthy is the court’s statement that one of the “salient facts revealed during the course of the Hearing” and, therefore, unknown to the evaluator, was that the mother had “received extensive—over 50 hours—of preparation for her forensic interview…from…Dr. Jonathan Gould,” a well-known forensic consultant from North Carolina. Justice Colangelo stated that this intensive preparation was “to the detriment of [the mother's] position….” in terms of assessing credibility.
New York courts have sent a clear message that interference with the custody evaluation process is unacceptable. For example, many appointment orders direct that attorneys refrain from contacting the forensic expert other than for scheduling purposes. Further, absent special circumstances, New York courts have been reluctant to permit pretrial discovery of the notes and raw test data of the forensic expert routinely afforded in other jurisdictions.3 Restrictions on dissemination of the forensic reports have also been the subject of intensive debate and legislative proposals. It is thus not surprising that a judge would look askance at the pre-evaluation preparation that occurred in E.V. v. R.V.
From the trial lawyer’s vantage point there is no substitute for thorough and exhaustive preparation. As Ben Franklin noted, “Failing to prepare is preparing to fail.”
In custody cases, the evaluation by a court-appointed expert, while not determinative, should not be lightly set aside unless the court delineates its reasons for so doing (Rentschler v. Rentschler, 204 AD2d 60 [1st Dept. 1994]; Young v. Young, 212 AD2d 114 [2d Dept. 1995]), as the court did in E.V. v. R.V. Therefore, as an element of preparation, it behooves the trial attorney to offer suggestions to a client prior to the client’s initial visit to the evaluator. Attorneys commonly suggest that the client refrain from bombarding the evaluator with a litany of complaints about the other parent in an effort to demonize that parent; that the client emphasize his or her child-centered activities and motivations; and, that the client articulate some recognition to the parenting skills of the other parent. Such advice by the attorney is, of course, privileged.
Forensic mental health consultants offering litigant preparation services, however, introduce a rather different dynamic. As can be adduced from the E.V. v. R.V. decision, when a trial judge sees that a litigant has engaged in hour after hour of preparation by a retained forensic mental health consultant prior to, or during the course of, the interviews with the court-appointed evaluator, a reasonably vigilant court will almost invariably view such coaching as an attempt to taint what is designed to be a neutral and impartial evaluation process. While the specific content of the conversations between the litigant and the consultant may be shielded by the attorney work-product protection, E.V. v. R.V. makes clear that the fact that such numerous sessions occurred, their number and their duration, will not be ensconced in strategic secrecy.
In fact, the first of the numerous reasons Colangelo cited in E.V. v. R.V. for not following the ultimate recommendation of the court-appointed forensic expert was that the expert was kept in the dark as to the fact that the mother had received over 50 hours of preparation for her forensic interview by Dr. Gould.
Developing the Record
When a litigant has been prepared for an evaluation by a mental health professional, the opposing attorney’s objective should be to develop the record to make clear that the purpose and/or consequence of such preparation is an alteration or distortion of the litigant’s presentation in the evaluation process. Concurrently, the attorney should endeavor to demonstrate the absence of innocent explanations for such preparation.
If a litigant attempts to portray his or her pre-evaluation preparation as parenting effectiveness training, the attorney should call to the court’s attention the pleadings in which claims of superior parenting appear. Though litigants who believe themselves to have superior parenting skills do not ordinarily feel the need for pre-evaluation pointers, if they do, they would be more likely to enlist the aid of specialists in family psychology, as opposed to forensic specialists. It should also be established that there are qualified local professionals offering classes or individual sessions designed to increase parenting effectiveness, and that such services can be obtained without assistance or involvement of counsel.
If a litigant presents pre-evaluation forensic preparation as aid in reducing litigation-related anxiety, it should be established that there are many appropriately credentialed mental health professionals with education, training, and experience in anxiety-reduction therapy. The attorney should develop the record to establish that a clinical practitioner, a therapist, is actually better equipped to assist an anxious litigant than would be a forensic specialist, and that no treatment-related objective is served by having the MHP selected by counsel and designated as a “consultant” to counsel.
The litigation-centered nature of the forensic services in E.V. v. R.V. was particularly evident because the litigation focus was part of a pattern. Justice Colangelo observed that the child’s treating psychologist, Dr. Lobel, had been recommended by “E’s counsel—who could vouch for Lobel’s qualification as a witness; not surprisingly, Dr. Lobel expressed no qualms, then or thereafter, about wearing two hats—the child’s therapist and one parent’s paid expert witness.” Colangelo added that “Dr. Lobel reveled in the idea that he was hired because he knew his way around the courtroom.” Efforts to deny such a clear pattern can only detract from the litigant’s credibility.
Indeed, in his discussion of E.V.’s testimony, Colangelo stated that it was “frequently a study in evasion…” (at 18). He added that E.V. “claimed that she, for some unknown reason, could not answer a question which appeared to the un-coached eye more than susceptible to a straightforward response” (at 18). When a litigant has utilized the services of a forensic consultant, recruited by counsel, to address issues not ordinarily associated with forensic expertise, the witness is likely to be evasive in responding to questions regarding the practitioner selection process. As is clear from the decision in E.V. v. R.V., evasiveness troubles thoughtful judges.
Assisting vs. Obscuring
In 2009, the Association of Family and Conciliation Courts (AFCC) established the Interdisciplinary Child Custody Consultant Task Force. The product of the task force’s work was a paper titled “Mental Health Consultants and Child Custody Evaluations: A Discussion Paper.”4 The task force offered the observation that “mental health consultants can create a serious, material risk” that, in the course of educating and supporting litigants, they will distort the manner and perhaps the substance of the litigant’s presentation to the evaluator which will thereby distort the evaluative process itself as well as the judicial fact-finding that evaluators’ reports are intended to serve.
The inclusion in the E.V. v. R.V. decision of a statement citing the pre-evaluation preparation of the mother by Dr. Gould as the first of seven “salient facts” not available to the evaluator, and the further statement that this fact was “to the detriment of [the mother's] position…,” should serve as a warning to attorneys who, without thought of the possible negative repercussions, enlist MHPs to prepare clients in advance of scheduled custody evaluations.
Given the distortive effect if not the design of pre-evaluation forensic preparation, it is hardly surprising that forensic experts who offer such services are often as reluctant as illusionists to discuss their techniques. For that reason, the specific actions that are the source of judicial disapproval cannot always be specified in detail. This similarity between pre-evaluation litigant preparation performed by mental health professionals and acts of prestidigitation is disconcerting. Yet, detailed or not, it is quite likely that the fact-finder will understand what is at hand, as Justice Colangelo did. Borrowing from (and tweaking somewhat) Potter Stewart’s oft-quoted quip in Jacobellis v. Ohio,5 while judges may not always to be able to articulate in detail the differences between acceptable litigant preparation and forensic preparation that emits a foul odor, they are likely to know it when they smell it!
1. E. V. v. R. V., 44 Misc.3d 1210(A) (Sup.Ct., Westchester Co., Colangelo, J., 7/2/14, NYLJ, July 28, 2014
2. See Caher, J., “Judge Finds Mother “Cannot Be Trusted” With Custody,” NYLJ, July 25, 2014.
3. See, for example, CP v. AP, 32 Misc.3d 1210(A), 932 N.Y.S.2d 759 (Sup.Ct., New York Co., Kaplan, J., 2011) (Table), 2011 WL 2651798 (N.Y.Sup.), 2011 N.Y. Slip Op. 51245(U).
4. Family Court Review, October 2011 (49:4, 723-736).
5. Jacobellis v. State of Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676 (1964).