What Every Expert Wished You Knew…
As someone who often is pulled in as an expert in family and juvenile court cases there are new and different observations and experiences I bring back from each case experience. I have scoured the internet looking for the blog from professionals like myself heeding advice and feedback to the general public about experts. I was hoping there were professionals giving away this information to better understand us, work with us, and know what and why we do what we do. Unfortunately I haven’t come across this yet, but I’ll take feedback if anyone finds this. I also want to help families understand the limits of what I can provide, speak to, and offer from my position on a case as a “qualified neutral evaluator”. Sometimes my impact on a case is reliant less on my skills or knowledge, but is the skill (or lack of) of the attorneys to ask the right questions and based on how a case proceeds. Here is a list of items that hopefully offer some explanation as to when, how, and why experts are accessed, our benefit to a case, and what we experience on the witness stand or in discussions with attorneys and families.
I am not an attorney, and definitely not your attorney. There are things as a clinical professional who works in the court system I understand beyond that of the typical therapist simply from professional and personal experience in the court. I cannot give legal advice or tell you what to do next on your case. Although most family and juvenile court cases have representation for the parties and children, I do come across the occasional case of a self represented litigant. These are called “Pro-Se” Litigants. Every state bar has rules about attorney’s interacting with pro-se litigants in the court system that leave pro-se litigants confused. I also have ethical conflicts with my interactions with pro-se litigants if I’m not careful. While I’m not governed by the local bar association, I do still have ethical lines I have to honor or disclose. There are things I can discuss with a clients attorney, or group of attorneys on a case, that I cannot discuss about a client if their co-parent is self represented due to privacy and protection of the participants. Sometimes this includes information that would pose a safety issue if a child or person discloses possible abuse and it has not been investigated yet, and a parent may retaliate. These are the cases that are the hardest. It’s common for parents who are self represented to gain trust with me during an evaluation or therapy services under the court. They often ask questions I am unable to answer. Or present issues in the court that I simply am not allowed to speak to due to these restrictions. In limited situations I may be able to speak to the observations of the court system in general to provide education on what to expect and the general process overall (mostly in juvenile court cases), I cannot advise or tell you what to file or how to manage your case. I can only speak to my professional experiences on a limited basis. As an expert who is clinical, I may be familiar with limited case law, but I am not an attorney. It is not my responsibility to apply the rules of the court or the law, only to be familiar with local expectations or practices. It is my job to report on the psychological and developmental needs of a person, or the family. It is the judges job to apply my information and expertise to their very detailed and memorized knowledge of the law and family court rules. Do not ask me about legal statutes, how custody laws are written, or to interpret code that is not my background. That is the legal teams job. I have so many attorney’s who expect me to make the decision for the judge based on legal statutes. This is unethical.
I know if your attorney is effective or if they are wasting your time and money. But, I can’t tell you. Just as evaluators and professionals in the court have reputations, so do attorneys. I have worked cases where there was significant high conflict, abuse, domestic violence and the legal professionals were kind, compassionate to their clients needs, and were wonderful advocates. Families benefit from this and typically is when my services are contracted. I have also watched attorney’s gouge their clients for money, waste their time with bogus filings, cause more conflict than is needed to line their own pockets, and work through their unresolved issues with their personal divorces through their clients cases. It’s called projection. While it is important for attorney’s to represent their clients interests in the legal system, it is also part of the role of an effective attorney to have good client control, to limit their personal issues from interfering on a case, and to work towards a solution to avoid trial if appropriate and possible. If you don’t think your attorney is listening to you, or your gut is telling you something isn’t right. You probably are correct. Not every attorney is good, not all of them act out of your best interest, and its common to find attorneys who are on burnout and operating on autopilot. If your attorney can give you advice that is honest even if you don’t like it, can be flexible in problem solving, and asks you to wait before filing that contempt and sleep on it, you have a good one.
As an expert, I have to be neutral. This does not mean I do not empathize or understand your perspective. It’s important to know and understand what my role is and what that means with your case to not misinterpret kindness for bias. I can be kind, while completely disagreeing with a person’s logic. I cannot take a side simply because you paid me or your attorney recommended me. I have made recommendations against the favor of the paying party or the attorney I know better simply because the information and facts line up. But I try to be clear on how to correct this issue to give a future or second chance. Being neutral is a hard concept to understand in cases where emotions are high and the players have compassion fatigue. I have issues with professionals understanding this. While I will listen with an open mind, I am required as a neutral professional to question everything, including claims of domestic violence. Even if it seems absurd. This is one of the hardest concepts for legal professionals, individual therapists, and clients to grasp. While pink unicorns may not actually exist, unless you can prove it I have to question it as a reality that they do and would that change my answer or recommendation, and then why.
We know the system is broken, but we have to work with the reality of what exists. It’s also the reason it is hard to find professionals who do this work, no one wants to jump in to our circle. Our court systems are heavily outdated on their legislative requirements on cases (the laws and how they are worded, old language, and poor resources for judges), as well as the constantly changing state case law that exists to which judges make decisions and attorney’s plead cases. This is the informal rules of the law and the grey area of the court. It’s a moving target and the reason you need an attorney if you can afford one. I also know from conversations with judges and attorneys outside of the court room; bias does exist in true and prominent form and is a big problem. While they will never admit it to a client or out loud in a court room, the after hours conversations significantly acknowledge the issues here and you aren’t imagining things. Not all experts are like this. While I know I make mistakes and have plenty to learn, I like to think I am not one of the biased ones. I do know who is and who will base their custody recommendations off what attorney they are best buds with, or play golf with during the summer, or who they refer work to because they were their kids personal nanny for several years before sharing cases with them and still watch them (yes this actually happened-and still is). I’ve shared professional space with people like this, and have seen behind the curtain. So I no longer share a curtain.
Comparing me to an individual provider is like pickles vs bananas. While pickles and bananas are similar in shape and share some nutritional benefits like being high in potassium, they are two very different things just like private therapy services vs court ordered services. While I do have private individual clients I work with in traditional therapy interventions and services, when in an expert role I am not supposed to operate in this capacity in the court. You also wouldn’t want me to. One of the most predictable and guaranteed questions I get from opposing counsel when they don’t like my assessment or on cross examination is always related to my expertise over someone’s privately hired therapist who has been working with them for the last six months. When attorneys and clients disagree with my recommendations this is automatically their first line of defense to discredit me. It’s also very ineffective. There is a reason that person’s individual therapist could not complete an assessment and take on the role with the court, and everyone knows this (More on this in #6 below). It’s the entire reason I was hired. Please stop asking this question when an expert testifies. Individual providers will not be forthcoming with the court or objective related to the symptoms, severity, and accuracy of the entire family dynamic. Individual therapists do not test hypothesis, compare notes, interview outside professionals, or even speak to other family members by virtue of confidentiality rules. They only have that one person’s personal self report, which is probably very limited and lacks insight. So when I am asked “Do you really think you are more qualified to diagnose this person after four hours of interview versus the months their individual therapist has spent with them?” My answer will be a resounding “Yes”, because for as many hours in person the individual therapist has spent with this individual, I most likely have spent close to that in research, speaking with outside parties, and collecting perspectives separate from that individuals on how they function. More attorney’s need to ask me what the difference is between my role and an individual therapist when laying their foundation in direct examination. It would eliminate a lot of the misinformation and confusion on a case. (HINT! HINT!)
I can’t answer questions I’m not asked. Anytime I am asked to complete an evaluation, whether it’s custody, for juvenile court, or as an expert on the stand I may have the knowledge to counter either side and make their case. But I can’t volunteer information if it’s not within the scope of the evaluation. Recently I was asked in a custody evaluation, why I didn’t include the specific parenting styles in the report. Very simple, I wasn’t asked to speak to these. While it might be assumed by an attorney that these are simply part of an evaluation, they are not. Parenting styles are prominent in social media, and do have research and science behind them to a limited degree based on more recent studies in the 1970’s through present. But parenting styles are not the only indicator of how a parent-child dynamic works. Temperament of the child, the parent, the environment, other caregivers, community involvement, discipline, co-parenting relationship impact, and genetics all are pieces that play in to a relationship in a family. What parenting strategy that works for one parent-child dynamic may not work for another simply due to other factors in that scenario. It doesn’t mean either is right or wrong, or that one is better because they fit a certain style over another. Today we have too many alleged experts on gentle parenting and how to discipline (or not) a child. So my point here is, if you didn’t ask for it to be included, or your attorney didn’t ask the question… I can’t answer to the information even if I know it and it might change the outcome of the case for the judge or report. Be clear what you want me to answer to. Make sure you ask the question. Never assume it’s included.
Your individual therapist (or child’s therapist) might be the problem. But again, I can’t tell you and you probably wouldn’t believe me if I could. Individual therapists who are privately hired are by nature of their role- biased. They know this, it’s discussed in our beginning clinical curriculum. It’s well talked about and acknowledged in the training a therapist goes through, and in the court space. Individual therapists have a loyalty to their client and to maintain a therapeutic alliance with them for treatment and trust with the client. This is important to build trust and encourage open disclosure of information for the therapist to assess what may be happening and to then challenge the client with some accepted objectivity. Confidentiality of individual providers are also a big factor here and for a really good reason. Therapy isn’t supposed to be exposed or exploited by the court and require extensive disclosure and informed consent before engaging therapy through a court order. They are ethically bound to side with their client, or that client won’t be their client anymore and they may cause harm. They are also expected to diagnose a client with the minimal and least restrictive condition regardless their symptoms to prevent over stigmatization. It’s their primary goal to protect their client, which is the very root of bias. This isn’t a bad thing. Again, it’s well known and agreed on which is why so many individual providers resist testifying, fight subpoenas, and do not want to share records. They are obligated to. Individual providers cannot speak to family dynamics, provide impartial professional opinions about their client and their clients functioning outside of the 50 minute weekly therapy interactions they have. Individual providers only know what is shared with them by the client. Sometimes also the parent(s) if a child. Often it’s only one parent which also creates a bias if the provider isn’t careful. I have seen cases where individual providers become highly defensive, refuse to provide some level of feedback or collaboration, and treat the evaluator as the enemy. This is going to hurt your case. Even in situations where a provider might speak with an evaluator, I often find the provider is completely unaware of major life influences and events that are taking place that would change the course of treatment or the diagnosis of the person had they had this outside information. While much of the time providers are understandably hesitant to work with an evaluator, but eventually understand the benefit to their work by doing so, there are enough providers out there who are simply bad therapists. I have directly dealt with providers who are negatively influencing a parent-child relationship, making recommendations for contact and custody when they are not trained and is not within their scope of practice, and encouraging rejection of a parent or family member due to having a very one-sided and limited report of what is happening in a person’s life. I have also seen multiple cases where a parents therapist is actually causing harm to the client by perpetuating a victim mindset versus helping that person work through it and move past it.
Psychometric testing is often unnecessary and can be unethical in many court involved evaluations. Since the late 1990’s and early 2000’s more and more research and questions about the ethical use and limitations of psychometric (MMPI-3, MCMI, etc) testing have surfaced specifically related to custody. While these tools are widely recognized and used, and do have some important information they measure, they have significant flaws when not properly administered and results are interpreted without context to the current stress level, outside interview, and information needed to gain a broader understanding of what they might show. Often the test results are included and shared with these evaluations to the court allowing non-clinical professionals to interpret at their own will the impact these should have on a person’s parenting. Psychometric testing also can show inaccurate outcomes due to the extreme stress custody and court involved psychological evaluations impose on a person’s responses. They are a brief snapshot in time during a highly stressful event that is not the typical, daily functioning of that individual. A person’s outcome on psychometric testing also is not reflective of the nuanced ebb and flow of relationships and the dynamics involved which are complicated. A person can be a wonderful parent, while having a confirmed mental illness, personality disorder (there are more than just Culster B), that may show up on testing but is being actively, successfully, and responsibly managed with therapy and medications if needed. PTSD often overlaps with Cluster B Personality Disorders or Autism too. Testing doesn’t always show this separation. When psychometric testing might be required is in states and family courts that require a “Daubert standard” (see #9) for evaluations which is why they are still used in custody cases. However, often the majority of evaluations in most states even with a Daubert standard can be completed without this level of screening tool used and have the same result, if not better. As cited in a 2020 journal review in The Psychological Science in the Public Interest (Vol 20, Iss 3) many of the tools used in custody evaluation testing, only 40% were considered reliable and effective, but less than 5% of judges or attorney’s even challenged their validity simply due to not having any expertise or understanding of how testing instruments are used, and whether or not the psychologist was qualified in their assessment (https://journals.sagepub.com/doi/epub/10.1177/1529100619888860 ). They were just accepted even though the results may have been thoroughly flawed.
Type of expert: Daubert vs Frye. While I’m not a legal expert, I do have some very limited understanding on how flexible family courts are with expert standards. I’m sure plenty of attorneys will correct or debate me here- but this is for families to understand related to my evaluations and the why. Although no formal standard has been adopted for state court issues in Iowa, the presumption is Frye. Federal Courts have strict rules regarding experts, as they should, and follow Daubert standards from the Supreme Court set in the 1970’s. There is a wonderful article that compares this and gives history to their use, origin, and current applicability: https://journals.sagepub.com/stoken/default+domain/10.1177%2F1529100619894336+-+FREE/pdf . Frye standards were the original standard set, before Daubert existed, basing the expectation and burden of the validity of the expert to be comparative to uniform accepted practice and standards in the field of their expertise at that time. This doesn’t mean Frye is less scientific or effective, it is more fluid and able to change with the region, cultural needs, and changing expectations for many scientific practices like psychology and parenting. Daubert has many more standards and is challenged today to be more flawed in family court, while beneficial in criminal proceedings. Each state has it’s own standard, which means you will want to check and be sure of your local state requirements for family court experts, and even the judge’s preferences. It’s been my limited experience many family courts operate under a Frye expectation, even if they use Daubert in most state courts. Criminal and federal cases have a far higher burden and will require more scientifically proven experts in many cases. This doesn’t mean a trained professional who doesn’t meet this expectation can’t be used, but they will be referred to as an at-fact or other lay witness. Furthermore, Colorado uses a Daubert test, Arkansas and Missouri do too. Iowa, Illinois, Washington, Minnesota, New York, Pennsylvania, California are examples of states that use a Frye admissibility standard in state cases.
There is no formal certification for this work. Stop asking this question to experts on the stand. The court usually already knows this. While there are many local and private society based trainings depending on your region or the focus of your work, there is no formal uniform national certification process to be a custody evaluator, reunification specialist, or court involved provider. This is the same for EMDR, CBT, ERP, and any number of other interventions that are privately based. There is no formal governing body over their quality. Anyone can claim they provide any intervention whether they are trained or not. Art, Music and other creative arts therapies are the exception to this and have credential protection. Anyone can put out a shingle and claim to be an evaluator in most states, especially in Iowa. Other states are a little different. With recent legislation taking place related to preventing harmful and unethical interventions with reunification work, some states have local legal training requirements in order for the court to approve an evaluator for a case, or to allow reunification services to happen. Colorado, Pennsylvania, California, Tennessee, Maryland, Utah, and I think New Mexico and maybe Arizona just passed recent language. It is a growing trend with several more states like New York, Minnesota, and Missouri who have proposed similar language in their states in recent legislative sessions. While these new forms of enforcement do not “certify” or name a certification process, they do set training and degree requirements for judges and providers to prevent perpetuating abuse. There is a high level of controversy around these laws. They are heavily criticized by Parental Alienation and Father’s Rights Groups. While there is a high amount of polarization between the advocates for and against these rules, they are needed and beneficial to prevent abusive practices from taking place and to begin to hold some standards and accountability around parental interference including helping those who have been estranged prove they have been targeted. The best bet for making sure your expert has basic training and knowledge is to ask the following questions: Do they belong to the AFCC (Association of Family and Conciliation Courts)? This is the gold standard for training and managing the intersection between legal and psychological worlds with family and juvenile court. Do they have training specific to domestic violence, including psychological abuse criteria and parental interference? Do they regularly attend conferences and training to stay up to date on the changes taking place in this field? Do they access professional consultation with other trained professionals? Have they been trained in neutral evaluation (mediation or as a custody evaluator also works)? Do they have a background and training in Infant and Early Childhood development and mental health to understand attachment? Have they provided family or couples therapy, specifically with Gottman training which is the most well recognized and established approach to family conflict and dynamics?
My experience far out lies my degree. I cannot share how important and beneficial it can be for an evaluator or provider working with families to have personal and professional experiences similar to the work they provide in different context. While this can go wrong and allow attorney’s and therapists to become too personally invested in the outcome of a case causing harm, it can be a huge asset if it is in check. Would you want someone evaluating your parenting and bond with a child, if they do not have children or have cared for children (stepchildren, nieces or nephews they live with or care for, as a private care provider)? While the politically correct question is “anyone can be qualified” I am going to say the unpopular but loudly quiet answer here, “No”. This is one of the primary complaints outside of clients complaining about their own counsel. One of the primary questions I get is if I have children. The next is if I have ever been married or divorced. I have no issue offering brief but honest answers. There is a unique perspective and value that is added to know that your evaluator has experienced similar life events. They don’t need to know the conflict level, parenting style, or belief system I subscribe to. But just this basic information is enough to reassure that when someone talks about their experience, the difficulties with parenting, and dealing with the stress of a family separation… I’ve been there. Most families and children I have to interview do not want a brand new 20-something, just graduated, single, no kids, evaluator laying judgement on their family situation. Even if they are remarkably insightful and well trained, there is value in life experience that cannot replace science, so long as it is in check. Evaluations are still about relationships and hardships. It’s also important to understand how to communicate and support the family when difficult decisions are made.
Sometimes there is no “good” decision. Sometimes when given a case to evaluate, there is no good or balanced decision. Both parents may be struggling significantly with their own separate demons. Just not to a level that is reportable to protective services, or defines child abuse or neglect. People can be mediocre or even minimally effective parents on both sides without it reaching legal definitions of “abuse”. When pressed with these scenarios, it becomes very difficult for evaluators to support any recommendation they have. But we have to make one. This often comes back to question #5, I can’t answer questions I’m not asked. Be cautious as legal representatives on if the dynamics and history of your client will serve them well in an evaluation.
We hope our evaluation helps with compromise. While it can be assumed we are in the business to just get rich, not all of us are. We do actually want to help families and end the cycle of legal proceedings and provide some sense of peace. Even if its not exactly what you hoped for. Often custody evaluations are a way to avoid trial, but used as a key piece of evidence if needed. Often once the evaluation is completed, the hope is the parties are able to review the information and potential impact, and take recommendations from the evaluation to come to an agreement. I’ve seen evaluations completely negated, thrown out, and laughed at because the judge was jaded or an attorney simply was not good in presenting it. I’ve also dealt with judges placing way too much authority with an evaluator that may cross the line. Trial is a toss up, and it’s hard to know who will win even if it’s a “sure thing”.
For attorney’s: Just because I didn’t offer recommendations in your clients favor, does not mean I will in every one of your cases. It’s not personal for us. If we are properly trained to evaluate from a neutral perspective, you are going to win some, and lose some with us. I know a lot of legal professionals ego’s that cannot handle this as base their referrals and protest to access evaluators based on this assumption. If I can’t give you bad news, and you accept it and work with it under mutual professional respect, without being canceled from working with you again. I don’t want to work with you again.
Those online chat groups, and social media influencers are most likely wrong and are toxic. I’m in several online groups, I follow the popular influencer’s, and see the crazy things shared by professionals wanting a piece of the money and fame for a chance to go viral. I see so many attorney’s marketing divorce and filing over some of the dumbest things, and they are very compelling and out to line their own pockets. I also see therapists trying to be the next viral sensation encouraging people to cut off their toxic family with really vague descriptions and asserting any form of healthy parenting is abusive if your feelings are hurt. But I also see the injured, the ones who just want to be heard. These are the people in the chat groups online often mislead or following the influencer clinging to the generic statements that resonate with their very personal situation. I frequently have to work against this rhetoric and correct through education. Just know a majority of them are toxic, are probably full of abusive people who are preying on the desperation and emotions of the wounded, hoping to be the next 15 seconds of fame on your feed.
