Timothy M. Tippins
Timothy M. Tippins ()

On a number of occasions this column has advocated mandatory practice standards to govern forensic evaluations in custody proceedings.1 Two recent decisions, in juxtaposition, underscore the critical need for such standards to ensure that these evaluations produce reliable information.

Coercion and Consequences

In Paul A. v. Shaundell LL.,2 Family Court directed a psychological evaluation. When the mother failed to submit herself or the child for evaluation the court found her in contempt, granted the father sole custody and relegated the mother to supervised parenting time. The court further required her to reimburse the father for funds expended in connection with the evaluation and to pay his counsel fees in connection with the filing of the contempt petition. The Appellate Division, Third Department, affirmed.

There is nothing novel here. The Third Department has approved severe penalties in the past,3 as have other appellate courts. In Susan G.B. v. Yehiel B.-H.,4 the First Department held that “refusal to submit to a forensic psychiatric examination” constitutes an “independent ground for denying visitation.” Similarly, the Second Department, in Zirkind v. Zirkind,5 held that “denying the father custody and visitation on the ground that he refused to submit to a court-ordered psychiatric evaluation” was a provident exercise of judicial discretion.

The penalized parties in these cases may have richly deserved the consequences imposed. The point here is not to suggest otherwise. Rather, the thrust here is that fundamental fairness requires that a legal system that wields a Damoclean Sword to force submission to forensic evaluations bears a commensurate responsibility to ensure that those evaluations are conducted properly. Otherwise stated, the specter of Damocles should hover above evaluators as well as litigants. All involved must be accountable, and accountability requires standards of performance, which brings us to J.C. v. A.C.

The Quest for Quality

J.C. v. A.C.6 was a complex case involving orders of protection, numerous arrests, Child Protective Services reports, judicial findings of sexual abuse, a traumatic brain injury suffered by the mother, and several past and present treating therapists and doctors. The court appointed a psychologist from the Second Department’s panel of approved mental health professionals to perform an evaluation. The evaluator filed a report and thereafter testified before Supreme Court Justice Jeffrey Goodstein. Within that testimony, the court discerned a deluge of deficiencies.

The evaluator testified that her 11-page report was based upon “self-reporting by the parties.” She acknowledged that she “felt bad for” the husband while being “biased against the wife for not working while the husband is working three jobs.” Remarkably, she opined that the wife should be mandated to find employment and that the support provisions then in place should be modified. Such matters, of course, fell outside the scope of her appointment and far beyond the boundaries of psychological expertise.

The evaluator failed to review or request documents “regarding any aspect of the children or the parties’ psychological history or development” which, as indicated, was extensive. She spoke with one child’s current therapist but “did not speak with any of the other children’s therapists or doctors, past or present.”

She concluded that the existing order of protection should be modified and testified that “any allegations of sexual abuse were not relevant because it should have been reported sooner than it was.”

Despite the profusion of psychological problems presented, the evaluator performed no psychological testing, indicating that she did not have time to do it.7

Finally, notwithstanding the appointment order’s prohibition of ex parte communication with any of the attorneys in the case, the evaluator contacted the children’s attorney and “questioned her about what the best interests of the children would be.”

Commission Resurrected

Faced with these deficiencies, the court struck the evaluator’s report and testimony and directed a new evaluation by a different evaluator. It began discussion, however, on a sanguine note: “The forensic reports and the evaluation process as a whole in child custody matters are valuable tools which assist the trial courts in reaching a determination of the best interests of the children.”

Precision would dictate of course that an essential qualifier be added here, namely that evaluations are only as valuable as they are reliable. Because reliability hinges upon sound methodology, operational standards are essential to securing reliable results. Accordingly, Justice Goodstein actively searched for such standards.

Sadly, no standards are to be found in the statutes, the decisional law or the official court rules. Therefore the court turned to what it perhaps perceived as the next best thing, the 2006 Report of the Chief Judge’s Matrimonial Commission. The commission recommended what Goodstein described as “accepted standards and elements” which are “common, accepted standards expected to be performed during a forensic evaluation.”

The court’s resort to the commission’s recommendations implicates a number of issues beginning with the fact that they have never been officially adopted by the judicial administration. They evidently languish in some governmental dustbin in the Byzantine Labyrinth of the North, also known as Albany. Perhaps Goodstein’s opinion, which admirably brings the issue of standards to the fore, will inspire the berobed panjandrums on high to get off the dime and at long last act to bring coherence to what is presently a coliseum of chaos.

Sources of Standards

There are several sources of practice standards beyond the incomplete recitation delineated in the commission’s report. A number of professional organizations have published guidelines, practice parameters and model standards aimed at improving the quality of custody evaluations.8 The best of these, in this writer’s view, are the Model Standards of Practice for Child Custody Evaluation published by the Association of Family and Conciliation Courts (AFCC) in 2007.9

The Model Standards are the most current, comprehensive and cogent of the published polestars. In contrast to the single page of recommendations made by the commission,10 the Model Standards present an impressive trove of specific mandates adopted after serious study and extensive debate by a task force that included attorneys, judges and mental health professionals.

Such mandates are essential to the intellectual integrity and professional reliability of the forensic process. As AFCC Task Force Reporter, David A. Martindale, a forensic psychologist, said in a communication with the author:

The custody evaluation process is inherently noxious. It is intrusive, inconvenient, time-consuming, anxiety-producing, and costly. Courts order custody litigants to submit to these evaluations in the expectation that families will ultimately benefit because courts charged with adjudicating custody disputes will obtain expert advisory input that will assist the courts in making their difficult determinations. Until the judicial system sets standards relating to education, training, and the use of reliable procedures, solid advisory input will remain elusive, something to be hoped for, but not something that realistic judges should expect.11

Forensic psychologist Jeffrey P. Wittmann has recently written that the increasing complexity of custody assessment models developed over the past several decades has been accompanied by “increased attention to what should represent good, ethical practice in custody assessment,” an evolution exemplified by the “proliferation of professional guidelines and model standards for general forensic practice and for practice specific to custody and access assessments.”12 In commenting on Goodstein’s decision, Wittmann observed in a communication with the author:

The mental health disciplines have failed to adequately police themselves in the area of child custody assessment despite the many published ethics codes and practice guidelines. For decades too many courts have failed to scrutinize carefully the reliability of the mental health opinions put before them, a lapse that sets the stage for, indeed even invites, more incompetence. It is refreshing to see a court take seriously the requirement that those offering potentially life-changing opinions relevant to a child’s best interests be held to specific standards of performance. Children deserve nothing less.13

Crisis of Quality

The forensic performance in J.C. v. A.C. makes clear beyond peradventure that the status quo fails to protect litigating families from faulty evaluations. Inclusion on the court-approved panel of mental health professionals is far from a Good Housekeeping Seal of Approval. This is not surprising given that the scant six-hours of training14 required for inclusion hardly qualifies as a coffee break relative to the quantum of training required to achieve even minimal forensic competency.

Sadly, the forensic performance in this case was hardly unique. Many like it pass in the trade every day. The most notable thing about it is the fact that the deficiencies were documented in a published decision. Unsatisfactory work-product often passes unnoticed because many cases settle without testimony and because in those that are tried cross-examination is too shallow to expose the putrid underbelly of inferior work-product.

Specific Reforms Required

There is much that the legal system can and should do to address this crisis of quality beginning with immediate adoption of comprehensive and specific statewide protocols such as the AFCC Model Standards. This would ensure that lawyers, judges and evaluators all look to the same definitive touchstone to distinguish sound reports from specious work-product.

Once uniform standards are in place they must be enforced. When required benchmarks are missed real consequences must ensue. Striking the report and testimony is only the beginning of potential judicial responses. At the least, the court should recount the specific failures in a published decision so that other courts, lawyers and evaluators will recognize and avoid such errors in the future.

When an evaluation sinks to an egregious level of laxity the court should also consider the following sanctions:

1. Identifying the errant evaluator in its decision so that other courts and attorneys can make informed decisions as to whether to use the evaluator in future cases.

2. Directing disgorgement of the evaluator’s fees so that professionally bankrupt performances are not rewarded.

3. Recommending removal from the court-approved panel as contemplated by the rules that established these panels.15

4. Making clear in its decision when an evaluator has exceeded the scope of the appointment order so the ultra vires conduct will be unprotected by the immunity that generally shields the evaluator from civil liability.

5. Referring the evaluator to the appropriate licensing board for disciplinary action.

These measures are inarguably severe but they are no more so than the sanctions unflinchingly inflicted on litigants who fail to fulfill their obligations with respect to the evaluation, e.g., losing meaningful access to their children, contempt, etc.. Why should the evaluator not operate under a similar onus when his or her work-product carries the potential to alter, dramatically and indelibly, the life trajectory of the families being assessed? Litigant non-cooperation in evaluations is rare, no doubt in part because the consequences of such behavior are certain and severe. Commensurate sanctions on evaluators who ignore established standards should make substandard forensic performance similarly rare.

Conclusion

If the children whose fates are determined by the courts deserve nothing less than quality evaluations—as they certainly do—the legal system must do something more than it is now doing to ensure that only reliable evaluations are put before the courts. We don’t need more task forces, commissions or study groups. The AFCC has done admirable work and its Model Standards repose on a silver platter awaiting action. The time for that action is now!

Timothy M. Tippins is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John’s University.

Endnotes:

1. Tippins, T.M., “Raising the Bar: The Case for Depositions,” NYLJ, May 2, 2013; Tippins, T.M., “The Bar Won’t Raise Itself: The Case for Evaluation Standards,” NYLJ, July 8, 2013

2. Paul A. v. Shaundell LL., 117 A.D.3d 1346, — N.Y.S.2d —- (3d Dept. 2014), 2014 N.Y. Slip Op. 03890.

3. Rogers v. Fodor, 307 A.D.2d 395, 762 N.Y.S.2d 667 (3d Dept. 2003); Shabazz v. Blackmon, 274 A.D.2d 770, 710 N.Y.S.2d 735 (3d Dept. 2000); Baker v. Ratoon, 251 A.D.2d 921, 675 N.Y.S.2d 170 (3d Dept. 1998).

4. 216 A.D.2d 58, 627 N.Y.S.2d 384.

5. 218 A.D.2d 745, 630 N.Y.S.2d 570.

6. J.C. v. A.C., NYLJ, May 5, 2014, (Sup.Ct., Nassau Co., Goodstein, J.).

7. The decision indicates a relatively brief period of time lapsing between initial appointment and trial (approximately four months). When an appointment order imposes deadlines on an evaluation it should make clear that if additional time is required to do the job correctly the evaluator is free to request an extension. Conversely, when it becomes apparent to an evaluator that a reliable evaluation cannot be completed within a specified time-frame, the evaluator should request an extension irrespective of the language of the appointment order.

8. American Psychiatric Association, “Child Custody Consultation: Report on the Task Force on Clinical Assessment in Child Custody,” (1981, 1988); American Psychological Association, “Guidelines for Child Custody Evaluations in Family Law Proceedings,” (2010 American Psychologist (Vol. 65, No. 9, 863–867); American Academy of Child and Adolescent Psychiatry, “Practice Parameters for Child Custody Evaluation,” (1997); Association of Family and Conciliation Courts, “Model Standards of Practice for Child Custody Evaluation,” Family Court Review, Vol. 45 No. 1, January 2007 61–69 (2007); “Child Custody Evaluation Standards,” American Academy of Matrimonial Lawyers (2010).

9. Association of Family and Conciliation Courts, “Model Standards of Practice for Child Custody Evaluation,” Family Court Review, Vol. 45 No. 1, January 2007 61–69 (2007).

10. In fairness to the Matrimonial Commission, their charge was quite broad and their effort to deal with forensic issues represented but one component of a comprehensive report that addressed an array of issues.

11. Martindale, D.A., communication with the author, June 10, 2014.

12. Wittmann, J.P., Evaluating Evaluations: An Attorney’s Handbook for Analyzing Child Custody Reports (MatLaw Systems Corp. 2013), p. 2

13. Wittmann, J.P., communication with the author, June 14, 2014.

14. 22 NYCRR 623.4(a); 680.4(a).

15. 22 NYCRR §623.4(c)(3); 680.4(c)(3).