Forensic Custody Examination & Reports

Preparing for the Forensic Custody Examination

Skilled lawyers prepare their clients for forensic custody evaluations in an ethical manner, so that the client is not surprised by the process or the questions asked, and is well-prepared to put the best-foot-forward and present appropriately to the forensic.

A well-prepared client always bears in mind the “theory of the case,” developed together with skilled counsel, that takes into account all of the relevant law and facts, woven into a compelling, winning argument. The client has a refreshed knowledge of the facts, knows the mitigating circumstances of unfavorable facts, and is ready and prepared to outline the client’s strengths and weaknesses as well as the strengths and weaknesses of the client’s spouse. The client is prepared to field the forensic evaluator’s hard questions in an even-keeled, emotionally-neutral, factual manner. The prepared client understands that a good forensic evaluator will not believe the client nor disbelieve the client, but will assemble all of the facts and look for multiple points of verification to determine which hypothesis is more likely than the others. The prepared client has a clear, succinct and compelling reason why the children will fare better in the client’s custody than in the client’s spouse’s.

Unethical coaching of clients would violate both the Rules of Professional Conduct (governing lawyers’ behavior) and the psychological rules of practice. While it is ethical to give clients an understanding of the forensic evaluation process and an opportunity to practice telling the story so that the client feels comfortable saying it, it is unethical to coach a client on what to say or how to say it. It is unethical to give the client a practice MMPI psychological test, for example, so that the client can game the test or game the evaluation process. It is ethical, however, to help the client speak the client’s truth clearly, succinctly, and powerfully.

Here is just one excerpt from our guide to clients for the forensic interview:

How to Testify / Respond to the Evaluator’s Questions

  • Try to be relaxed, conversational and genuine with the evaluator;
  • Do not “bash” your [future] ex-spouse. Emphasize your own strengths (not the other’s weaknesses). Focus on yourself and how you benefit your children;
  • Be ready to answer hard questions like, “What are your spouse’s parenting strengths?” What do you like about the other parent?”
  • To the extent you can, stay child-centered and child-focused. What the child(ren) need is more important than what you want. Frame your answers from the children’s viewpoint. “The children will be better of if . . . because . . . .”;
  • Be prepared to show how involved you are in your children’s lives and how much you know about them and their activities. What grades are they in? Who are their teachers? How does each feel about each of their different teachers? Who are their best friends? What subject(s) does each child like and which do they not? What activities do they enjoy? How does each child’s personality differ from the other children’s? How will that personality characteristic, and the child’s physical, emotional, and developmental needs be better served if you are awarded custody?
  • What is your proposed parenting plan and your spouse’s? Why is your proposed parenting plan in your child’s best interests?
  • Always answer the question asked of you, not the one you wished was asked, not the one you know they wanted to ask you, not the one you think the questioner means, and not the one you think they should have asked you. Use the “Sheldon” technique (of Big Bang fame), and be precisely literal. (This rule should be less-rigidly applied when being questioned by a forensic evaluator.);
  • If you’ve gotta’ give it up, give it up quickly and cleanly. There is nothing more painful than watching someone struggle and twist themselves into a pretzel trying to avoid admitting something that they have to admit. If you are going to have to admit something, do it with dignity and class, and don’t sound like you are willing to lie and deny the truth to avoid admitting something everyone knows is true;
  • Always be truthful . . .
  • . . . But don’t be simple about it. Being truthful doesn’t mean that you have to give the worst-possible-answer at the first possible opportunity. It doesn’t mean you should be so self-conscious of your case’s weakness that you imagine every question is about that. Of course be honest and truthful. And when you’re asked about something that’s unhelpful to your case, you’ll need to be honest. But don’t rush to gush out the worst parts of your case and give it up when you’re required to, but not before. And, if you’re asked a softball question, be ready to . . .
  • Knock it out of the park whenever you’re given an opportunity to do so. Every once in a while opposing counsel asks a question that gives the person the opportunity to knock the ball out of the park, to give an answer that establishes the theory of the case the equivalent of a home run. If you’re ever given that opportunity, don’t pass it by. Always give your best answer! To do so, you need to . . .
  • Be intimately familiar with the “theory of your case” that weaves all the relevant facts and controlling law into a cohesive theme that would result in you winning your case. Understand all of the elements and facts that are required for your theory to succeed and be ready to spout it out whenever you’re given the opportunity to do so. (I tell clients to imagine a cash register, and every time the client hits the theory, to imagine hearing the winning “che ching; che ching” of the register);
  • Don’t ever lie or try to obfuscate, you’ll likely be found out and it’ll be a lot worse. Instead, work with your skilled lawyer to determine the best way of dealing with bad facts. (In a technique known as legal jiu jitsu, bad facts are converted to be favorable, good facts. Cultivating that requires skill, dexterity, creativity, and a strategic view.) Invariably, there will be bad facts that you won’t be able to color and it may just be easier to take your lumps to start spinning tales seeming to be a liar with the bad facts hurting you even more;
  • Within every question there is: (a) the literal meaning of the words used; (b) the tone of the question; and (c) the meaning of the question in the greater context of the lawsuit. Consider all of them before you begin answering your question;
  • Perhaps the most important rule: Always wait five seconds after the questioner has completed the question and before you begin your answer. Too many mistakes occur because the person answering misunderstood the question or missed the last few words that flipped the entire question into its exact opposite. Moreover a small (not excessive) delay means that you have time to consider the question and all its implications before answering. A considered answer is safer for you and more valuable to the person answering, then a knee-jerk, reaction to the question;Do not try to control the interview. The evaluator or questioner has a plan about how to go about it. You have no choice but to go with the flow. It’s easier for you if you reconcile yourself to that reality and don’t try to buck it.

Challenging an Unfavorable Forensic Report:

A forensic report works as a heavy thumb on the scales of justice. The party in whose favor the report concludes now has the wind at their backs and is riding downhill to achieving custody. Conversely, the party to whom the report is adverse, now has to “storm the castle.” It is a costly, uphill battle, and without a clever, skilled, determined lawyer, will not succeed.

Effectively challenging a neutral forensic report begins with an evaluation of the report itself, the basis for the report’s conclusions, the process the forensic evaluator used in assembling the facts that formed the basis for the conclusions, the data points the evaluator assembled, the inferences made from the data, the hypotheses the evaluator considered, the process by which the evaluator confirmed or rejected each hypothesis, the scientific research consulted, assembled, and relied on, and the logic and inferences through which the evaluator drew the conclusions from all of the foregoing. The report and the process the evaluator used should be evaluated for indications of heuristics or other biases on the part of the evaluator (any, or any combination, of the anchoring heuristic, availability heuristic, confirmatory bias, hindsight bias, stereotyping, affiliative/disaffiliative bias, or any one of the professional biases such as pathology bias, data gathering bias, research bias, “the truth [always] lies somewhere in the middle” bias with its variant “Attila the Hun doesn’t marry Mother Theresa” bias, a “for the move” or “against the move” bias in relocation cases).

Among the questions to be considered are:

  • Did the evaluator use a multi-method, semiformal, structured process?
  • Did the evaluator conduct multiple interviews with each parent?
  • Did the evaluator conduct multiple interviews and observations with the children and parents in an age-appropriate manner?
  • Did the evaluator use psychological testing to generate hypothesis and areas of inquiry?
  • Were such psychological tests administered according to their protocols?
  • Did the evaluator attempt multiple, appropriate contacts with collateral sources who have a range of understanding of the family and its issues?
  • Did the evaluator obtain each parent’s parenting strengths and weaknesses?
  • Did the evaluator obtain each parent’s view of the co-parenting issues including the ways in which they do, or do not, communicate well, share information
    about the children; and make joint decisions on behalf of the children?
  • Did the evaluator obtain each parent’s views of the other parent’s attitudes and behaviors re gatekeeping?
  • Did the evaluator learn whether there has been DV in the relationship and, if yes, what type of violence?
  • Did the evaluator learn, if there’s no DV, how has the couple historically handled conflict and has that changed since the separation?
  • Did the evaluator learn about each parent’s view of each child’s psychological, emotional, academic, social and developmental functioning?
  • Did the evaluator learn about the presence or absence of unique or special issues for every child?
  • Did the evaluator learn about each parent’s perception of each child’s needs?
  • If the evaluator gathered all this data, did the evaluator integrate all this data?
  • Did the evaluator include all this data in the formulation of the analysis and conclusions?
  • Did the evaluator ask questions, and follow-up question, in sufficient depth to fully understand each parent’s positions and concerns?
  • Did the evaluator provide each parent an opportunity to respond to the claims of the other?
  • Did the evaluator maintain a proper “evaluative mindset” throughout the gathering of the data?
  • Did the evaluator use appropriate psychological instruments and then use their results properly?
  • Did the evaluator consider the data that did not support, or even contradicts, the report’s conclusions or did the evaluator only use supporting data?
  • Did the report consider multiple hypothesis and were the discarded hypothesis rejected for valid reasons?
  • Did the evaluator recognize, announce and discuss the limitation(s) of the evaluation process and the data assembled?
  • Does the report consider the risks and benefits of various custodial options?
  • Does the report demonstrate awareness, knowledge, and application of the relevant legal standards for custody and visitation in New York?
  • Did the evaluator remain within the scope of the appointment order?
  • Did the evaluator consider all of the relevant factors?
  • How much time spent with each parent, and was it roughly equal with each? If not, is there a good reason why it wasn’t?
  • Did the evaluator give one parent a pass for negative behaviors?
  • Did the evaluator emphasize one data source over others?
  • Did the evaluator ignore some data, and look for other data to support theories?
  • Did the evaluator use psychological test-results inappropriately?
  • Did the evaluator use a clinical (rather than forensic) methodology?
  • Did the evaluator view their role as helping or fixing the family?
  • Did the evaluator have preconceived notions of the research findings (occurs frequently in matters such as overnight parenting of young children, domestic violence, and relocation)?
  • Was the interview process sufficiently balanced, neutral, and deep (in its questions) allowing each parent to fully explain all concerns and relevant information and to respond to the other’s?
  • Did the evaluation provide an appropriate understanding of each child, with enough depth to understand each in a multi-dimensional way (e.g., psychologically, developmentally, academically, emotionally, and socially) and each’s relationship to each parent and each child’s typical mood(s)?
  • Was the evaluator’s use of tests property explained?
  • Did the evaluator use proper tests/instruments?
  • Were the instruments properly administered?
  • Were they scored correctly?
  • Was the score correctly interpreted?
  • Was the data derived used correctly?
  • Was the psychological test data integrated appropriately with the other data gathered in the process?
  • Did the evaluator review the case records provided by the attorneys and litigants?
  • Was this information properly integrated into the case information?
  • Did the evaluator consider the collateral witnesses suggested by the parties?
  • Did the evaluator contact those collateral witnesses that had information relevant to the issues in this case?
  • Does the report state how long the evaluator met with or spoke to the collateral witness?
  • Does the report state when during the evaluation process, this contact was made?
  • Did the evaluator consider multiple hypothesis that could explain the relevant issues?
  • Did the evaluator integrate all of the relevant data? (p. 146)
  • Did the evaluator include the information that fails to support his conclusions as well as the information that support them?
  • Did the evaluator consider any relevant research that either supports, or counters, his conclusions?
  • Did the evaluator make recommendations consistent with the data he collected?
  • [Extra credit:] Did the evaluator explain the logical nexus between the data and the recommendations?
  • Did the evaluator avoid making conclusions based on only limited information?
  • Did the evaluator get any significant facts wrong?
  • Are there any signs of bias?
  • If so, what evidence is there that such bias affected the evaluator’s objectivity and analysis of the case?

“Bias is perhaps the greatest threat to the integrity and probative usefulness of forensic work products.” Philip Stahl & Robert Simon, Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation & Expert Testimony at 63 (ABA 2013).

Because is so stressful and evokes so many different harmful emotions, some people can present as if they have personality problems when they do not actually have them. Because of the stress and fear of divorce, a person may appear to be narcissistic and extremely self- focused when, with a bit of therapy, that may resolve. Others might appear to be histrionic or over-reactive (sometimes characterized as “overshooting the runway”). A skilled lawyer can help the client obtain the help they need so that they don’t present these symptoms at a forensic evaluation and suffer a harmful result.

To learn more about this or another topic relating to divorce and family law, check out our free New York Divorce Guides or call us today at (212) 964-6100!

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