2016 Volume 1, Issue 1 Crossroads in Court: Two professions set out to help children in family crisis. How does cross examination allow either profession to succeed? Norman Heller, Esq., Blank Rome LLP, New York, New York (Based on a presentation by the AFCC and AAML on Nov 20, 2015 on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition parents with personality, mental health or substance abuse disorders in (DSM5) because the purpose of the evaluation is to assist the court in its custody cases) determination of custody and access issues, not to make a fully vetted clinical diagnosis. Such caution is necessary because there are significant disputes ore than 10% of American children live with a parent who in the profession and the courts about some of the diagnoses in the DSM5. has alcohol problems.1 Illicit drug use is increasing in the US, especially among Baby Boomers.2 Moreover, only The issue of disputes over diagnoses in the DSM5 frequently presents in NY approximately 8% of adults with a substance abuse issue courts in Article 10 proceedings involving sexual offenders at the end of their prison sentences. If, after a jury trial, the offender is found to suffer from one receive treatment at a specialized facility.3 or more of certain mental illnesses having to do with sexual misconduct, he The courts deal with thousands of custody, visitation and neglect cases every may be confined indefinitely for treatment.

Some lower courts have used the day. Judges need help distinguishing cases involving parental mental illness, DSM diagnoses related to sex offenders as a basis to continue confinement8 substance abuse and alcohol abuse, from those where a party makes such but at least one appellate court recently remanded the case for a hearing allegations for tactical advantage. Mental health professionals (MHPs) play to determine if the diagnoses have achieved general acceptance in the a key role in separating fact from fiction.

Lawyers use cross examination to psychiatric and psychological communities.9 The defendant’s lawyers in the test if the MHP based the evaluation on valid empirically grounded evidence hearing to be conducted pursuant to the appellate decision hearing can be or was, in effect, reaching conclusions based on personal opinion.4 The expected to aggressively challenge on cross examination the validity of the court will also want to know if the MHP relied on published, peer reviewed DSM diagnoses on which continued confinement was premised. The legal research to support his or her conclusions to confirm that the evaluation is issue here would likely be applicable in a custody case in which a parent based on accepted scientific principles.5 was accused of sexual offenses. The question of whether a particular The Association of Family and Conciliation Courts (AFCC), the American diagnosis is accepted as scientifically based and, therefore, reliable is not Psychological Association, and the American Academy of Child and necessarily limited to Article 10 proceedings. Adolescent Psychiatry among other professional organizations, have issued standards and guidelines to assist MHPs in conducting custody and related It is critical that the MHP corroborate his or her findings by using collateral evaluations.

Some of these standards are binding on MHPs and a violation sources -- generally witnesses suggested by each party, medical records, and can result in professional discipline, while others are aspirational. Even the court records and orders.10 Failure to take appropriate steps to corroborate latter, however, provide helpful guidance to the MHP and the court. 8 State v. Daryl W., N.Y.L.J., Nov.

3, 2015 (Sup. Ct., Dutchess Co.). M For a custody evaluation to be useful to the court and withstand cross examination, it must focus on the psychological characteristics of the parents having to do with parenting skills and abilities.6 The MHP should be careful in ordering and using psychological testing unless these instruments are specifically designed for custody cases. Tests that are not created to assess parenting may still be useful.

For instance, the MMPI-2 assesses the possible presence of psychopathology. While the MMPI-2 does not directly bear on parenting, it may still be relevant in a custody case, because the presence of mental illness may affect one’s capacity to parent. The evaluation must also be balanced-- meaning appropriate, if not equal, time is devoted to each party and his and her witnesses and documents.7 Any imbalance will be construed by the party who dislikes the report as evidence of bias or favoritism, or just inadequacy of the evaluation. 9 State v.

Richard S. (Anonymous), N.Y.L.J., Nov. 16, 2015 (Sup.

Ct., Queens Co.). 10 AFCC Model Standards of Practice For Child Custody Evaluation Standard, Standards 11.1 and 11.2. The MHP should be careful when incorporating labels or diagnoses from 1 “Drug Facts: Nationwide Trends” issued by National Institute on Drug Abuse (revised 2015) ) 2 “Alcohol Facts and Statistics” issued by National Institute on Alcohol Abuse and Alcoholism (March 2015). 3 “Drug Facts: Nationwide Trends” issued by National Institute on Drug Abuse (revised 2015). 4 AFCC Model Standards of Practice For Child Custody Evaluation Standard, Standard 5.6. 5 AFCC Model Standards of Practice For Child Custody Evaluation Standard, Standard 4.6(b). 6 Guidelines For Child Custody Evaluations in Family Law Proceedings, Guideline 3 (American Psychologic Association 2010). 7 AFCC Model Standards of Practice For Child Custody Evaluation Standard, Standards 5.5(a) and (b). 13 . 2016 Volume, Issue 1 allegations of a party can present major difficulties for the MHP when the report is challenged at trial on cross examination. Although the MHP may properly rely on hearsay in preparing the evaluation, the report must be founded on non-hearsay, admissible evidence. Although beyond the scope of this article, both MHPs and attorneys should be familiar with recent case law concerning the use of hearsay in forensic evaluations and at trial. 11 In one recent case, the wife had a serious drug problem.12 She was also arrested 8 times for violating an order of protection. Although the husband previously abused drugs, he maintained his sobriety during the case. The custody evaluator testified that he was unaware of the wife’s positive drug tests or criminal charges, all of which occurred during the litigation.

His report was rendered useless because of these critical lapses in his knowledge of fundamental information about the wife’s misconduct. One can imagine the MHP’s discomfort as the cross examination elicited these shortcomings one by one. One method used by MHPs to corroborate important facts is to talk with a party’s treating physicians, including his or her psychologist or psychiatrist. Care should be taken by the custody evaluator since such a party’s MHP may be biased about his or her client and perhaps more likely to believe information he or she has relied upon during treatment of the client.

The evaluating MHP should take steps to confirm, if possible, any factual allegations about the other party upon which the treating MHP has relied. or her attorney’s conduct of the case, or exhibits other unfortunate conduct, the court may be The custody evaluation report may sometimes be inclined to conclude that if they act this way in subject to attack through no fault of the MHP. It the courtroom under the watchful eye of the trial is not uncommon for a substantial period of time judge, then most likely they are very difficult to elapse between the issuance of the report and at home where they are unconstrained by any the commencement of trial, or even if the trial has authority to control their actions.14 begun, when the MHP is finally called to testify. In Noonan v Noonan, the appellate court reversed In a contested custody case -- especially one the lower court’s custody order because the wife involving issues of mental illness or alcohol abstained from drug use for 2 ½ years as of the or substance abuse -- the MHP likely sees his date of trial, and the forensic report was more or her role as providing helpful analysis and than two years old.13 It is not the province of the recommendations to the court so that the children MHP to update the report.

Where a substantial are placed with the parent and under conditions time period has elapsed since the report was most suited to protect them from harm and issued, either the parties or the court should provide the best living arrangements. For the consider updating the report so the most current attorney in such a case whose client is disfavored information is available to be considered. When in the custody evaluation, the objective is to use it comes to the custody of children, courts are cross examination to discredit the report, and anxious to use the best, most recent information possibly the MHP, so the client is rehabilitated or so the children’s interests can be protected. the other parent is made out to be equally or even more unfit.

Ultimately, the burden falls on busy A MHP can also be asked to perform a peer review judges to make these hard but fundamentally of a custody evaluation report. A proper peer important decisions. review is limited in scope and does not involve making independent findings or consideration of evidence not presented to the evaluating MHP. Should the MHP doing a peer review exceed appropriate boundaries, cross examination will likely expose the MHP to criticism. One final word of advice for attorneys who handle custody cases and for MHPs who advise patients involved in such cases. Their client’s behavior in court observed by the judge is a factor the court can consider in evaluating the case.

If the client State v. Floyd Y., 22 N.Y.3d 95, 979 acts out, tries to aggressively interfere with his 14 N.Y.S.2d 240 (2013). CM v. CM, 47 Misc.2d 1210(A) (Sup.

Ct., 13 Noonan v. Noonan, 109 A.D.3d 827, 971 N.Y.S.2d 158 (2d Dep’t 2013). Richmond Co. 2015). 11 12 In re Kira J, 85 A.D.3d 1030, 925 N.Y.S.2d 854 (2d Dep’t 2011). Announcements and Upcoming Events SAVE the DATE J U N E 1 4 , 2 0 1 6 6 P.

M . - 9 P. M . AF C C NY ’S SPRI N G PRO G RA M Wi l l t he Re a l Pa re nt P lease Stan d Up—The Co n u n drum of t he Psycholo gical, Bio lo gical, and the De -fa ct o Parent 4 2 We s t 4 4 t h S t r e e t , Ne w Yo r k , N Y 1 0 0 3 6 14 Congratulations Marly Gonzalez, Esq., from Lawyers for Children, Awarded the second annual AFCC-NY Leonard Florescue scholarship to attend the 53rd AFCC Annual Conference in Seattle.

The first award went to Natasha WollastonStewart, LMSW, Esq., from The Children’s Law Center. .