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The Role of Therapists in Family Law Litigation: PART 1

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]

 

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[1] Juhas, Mark ‘Commentary on Forensic Mental Health Consulting: Is More Better?’ Journal of Child Custody, 8:1, 124-134.

[2] Gould-Saltman, Dianna ‘A View from the Cross-Road: Considerations for Mental Health Professionals Consulting with Attorneys (by a Judge, and Former Lawyer…with a Degree in Psychology)’, Journal of Child Custody, 8:1, 135 – 141.

[3] Journal of Child Custody, Volume 8, Issue 1 and 2, January 2011.

[4] Kaufman, Robert L. ‘Forensic Mental Health Consulting in Family Law: Where Have We Come From?  Where are We Going?’, Journal of Child Custody, 8:1. 5 – 31.

[5] Id.

[6] Lee, S. Margaret and Nachlis, Lorie S. ‘Consulting with Attorneys: An Alternative Hybrid Model’, Journal of Child Custody, 8:1, 84 - 102.

[7] Kaufman, Robert L. ‘Forensic Mental Health Consulting in Family Law: Where Have We Come From?  Where are We Going?’, Journal of Child Custody, 8:1. 5 – 31. 

[8] Id.

[9] Kirkpatrick, H.D., Austin, William G. and Flens, James R. ‘Psychological and Legal Considerations in Reviewing the Work Product of a Colleague in Child Custody Evaluations’, Journal of Child Custody, 8:1. 103 - 123.

[10] Austin, William G. , Dale, Milfred D. , Kirkpatrick, H. D. and Flens, James R. ‘Forensic Expert Roles and Services in Child Custody Litigation: Work Product Review and Case Consultation’, Journal of Child Custody, 8:1 , 47- 83.

[11] Kaufman, Robert L. ‘Forensic Mental Health Consulting in Family Law: Where Have We Come From?  Where are We Going?’, Journal of Child Custody, 8:1. 5 – 31.

[12] Id. 

[13] Shuman, D.W. and Greenberg, S.A. (2003) The Expert Witness, the Adversary System, and the Voice of Reason: Reconciling impartiality and advocacy.  Professional Psychology: Research and Practice 34:3, pp.219-224.

[14] Kaufman, Robert L. ‘Forensic Mental Health Consulting in Family Law: Where Have We Come From?  Where are We Going?’, Journal of Child Custody, 8:1. 5 – 31.

[15] Kirkpatrick, H.D., Austin, William G. and Flens, James R. ‘Psychological and Legal Considerations in Reviewing the Work Product of a Colleague in Child Custody Evaluations’, Journal of Child Custody, 8:1. 103 - 123.

[16] Kaufman, Robert L. ‘Forensic Mental Health Consulting in Family Law: Where Have We Come From?  Where are We Going?’, Journal of Child Custody, 8:1. 5 – 31.

[17] Committee on Ethical Guidelines for Forensic Psychologists, 1991, p.341.

[18] Kaufman, Robert L. ‘Forensic Mental Health Consulting in Family Law: Where Have We Come From?  Where are We Going?’, Journal of Child Custody, 8:1. 5 – 31.

[19] Gould, Jonathan , Martindale, David , Tippins, Timothy and Wittmann, Jeff ‘Testifying Experts and Non-Testifying Trial Consultants: Appreciating the Differences’, Journal of Child Custody, 8:1, 32 - 46.

[20] Shuman, D.W. and Greenberg, S.A. (2003) The Expert Witness, the Adversary System, and the Voice of Reason: Reconciling impartiality and advocacy.  Professional Psychology: Research and Practice 34:3, pp.219-224.

[21] Gould-Saltman, Dianna ‘A View from the Cross-Road: Considerations for Mental Health Professionals Consulting with Attorneys (by a Judge, and Former Lawyer…with a Degree in Psychology)’, Journal of Child Custody, 8:1, 135 – 141.

 

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