Reasons Why the Effective Cross-Examination Is Critical

In the complex and highly emotional world of child-custody litigation, the forensic report created by the court-appointed custody evaluator serves as a significant turning point in the pretrial proceeding. The forensic report is where the parties are measured against each other, either directly or indirectly, in the context of determining their child’s best interests. It is at this point, when a forensic report is issued, that parents learn, often for the first time, an outsider’s view of the quality and effectiveness of their respective parenting skills. The basis for determining the custody winner and loser is formally articulated.

By reason of legal procedure and evaluation process, the court-appointed custody evaluator, through her forensic report and trial testimony, is uniquely positioned to carry great weight with the court. Her status as a neutral expert witness, combined with her exclusive ability to access critical information relating to the parties and child, enable her potentially to influence greatly the court’s custody findings and, consequently, the trajectory of a child’s life.

For the party who fares better in the forensic process, a trial suddenly does not seem so unwelcome. For the party who fares worse, there is only one critical opportunity to create a more favorable record for the court to evaluate: Cross examination of the neutral custody expert. It is during the cross-examination of the expert witness that her credentials are attacked, methodologies impugned, alternative facts offered, and opinions shown to be tenuous or even incorrect. The more effective the examiner the stronger the custody case of the cross-examiner’s client.

The effective cross-examination of the neutral custody evaluator is a complex endeavor. The expert qualifications are almost uniformly accepted by the court, forensic reports are often lengthy and difficult to dissect, the individual elements of the expert’s methodologies, such as party, child and collateral source interviews, observations, and clinical testing can be difficult to undermine. Further, the expert’s opinions are almost routinely admitted without regard to legally endorsed scientific standards. The examiner faces a daunting task to attack effectively the expert and her opinion.

The both federal and state law provides that the court on its own may appoint expert witnesses. The expert witness may be one that the parties agree on or one of the court’s own choosing. The court exercises this authority in custody cases in part to minimize the mudslinging, nastiness, and intrusiveness inherent in a more adversarial use of experts. Having a neutral expert also saves the litigants the cost of expert retention, since the appointment of a neutral requires the parties have to share the cost of one expert; allowing each party to retain his or her own expert would double this cost. Neutral’s are also appointed to help the court understand often complicated psychological and parenting issues.

The court appointed expert is not biased to the extent that she is not weighed down by a contractual and financial obligation to either party. She is not a hired gun, although the parties are generally ordered to share in the payment of her fee. Her position requires her to act fairly and objectively with regard to both parties. This unbiased position enhances her credibility and adds to the weight of her testimony.

Further enhancing her credibility, a neutral custody expert has access to certain evidence to which an expert retained by a party does not. In states where there is no discovery in custody cases, such as in New York, the party-retained expert only has access to evidence that can be assessed by his client, such as his client’s medical record, and any third party witnesses, such as babysitters and school personnel, who voluntarily choose to cooperate. In states where discovery in custody cases is permitted, the party-retained expert can access medical, psychological, and psychiatric records of both parties, but is still not able to independently observe the child, the adverse party, the child with parties individually, or conduct independent psychological testing of the child and the adverse child.

In contrast, the neutral expert can observe and analyze both parties; the child alone and with his each of his parents; conduct psychological testing of both parties; speak with the physicians and therapists of both parties and the child; access medical, psychological, and psychiatric records of both parties; interview third party-collateral sources, and otherwise access evidence relevant to both parties and the child, not just evidence relevant to one party.

At trial, the party-retained expert has one hand tied behind his back. His opinion on custody related issues and attack on the neutral expert’s evaluation is severely compromised by his inability to gather all the relevant evidence. The playing field is far from equal. The neutral expert will testify in complete control of her domain: She will not be fairly challenged by another custody expert.

It is axiomatic that objective evidence, namely evidence that can be verified through observation, measurement or analysis, is more reliable than subjective evidence, or evidence peculiar to an individual’s experience or knowledge. Notwithstanding legal standards relating to the admissibility of expert opinions into evidence, the custody evaluation contains multiple layers of subjective analysis. The quality of its reliability, even if admissible, must be fairly questioned.

The order of reference appointing the neutral custody expert generally requires her to evaluate the parties’ parenting capacities. In doing so, the neutral expert must interview and observe the parties individually and sometimes together, interview and observe the child, if possible; observes the parties individually with the child; and interviews third-party collateral sources. During this evaluation, the expert has an eye on the mental functioning of the parents and child. The expert wants to determine whether a party is emotionally balanced, has a mature perspective, can process that party’s role in perpetuating the conflict with the other party, has the skills to develop the child’s confidence and self esteem, can set boundaries, and has the emotional dexterity to discipline the child in an effective and appropriate manner. These qualities directly relate to the respective party’s parenting capacities and the resulting fit with the needs of the child.

In the first instance, much of the information gathered by the expert is based upon the subjective perceptions of the parties and third-party collateral sources. Each party’s view of their and the other’s party’s respective parenting and relationship skills is seen through each party’s individual lenses. The quality of such behavior as, for example, negligent caretaking, aggressive conduct, abuse, ability to co-parent, and positive reinforcement are a matter of subjective interpretation. This is also true for third party collaterals. Therapists and babysitters also view events through their individual lenses and interpret events through subjective lenses.

The expert’s analyses of the mental functioning of the parties and child, based in part on the parties’ subjective view of events, are psychological in nature and can be difficult if not impossible to objectively corroborate. Mental processes are not visible and require the expert to evaluate an ethereal quality. Subjects such as a child’s self esteem, the emotional connection between the parents and the child, emotional development, maturity, are all intangibles.

The inherent psychological nature of the custody evaluation brings the evaluators own subjectivity to the process. There are no objective x-ray films or other diagnostic tests to review, as there are in medical malpractice cases, or yaw marks to be measured, as there are in motor vehicle accident cases. The expert has her influences, perception, past experience and cultural bias that she brings to the table. The expert opinion, even when admitted into evidence, is in large part her subjective analysis of events, and is based on the subjective views of the parties and collateral sources. In the final analysis, there are multiple layers of subjective interpretations involved in the neutral custody evaluation. This is quite alarming to the party who appears less fit as a parent in the expert’s report.

Given the inherent credibility and unique access to critical information enjoyed by the neutral custody expert, the often tenuous methodologies used to form the basis of her opinion, it is absolutely critical that the party who fairs worse in the custody evaluation be prepared to aggressively challenge the neutral expert at trial. The cross-examining attorney must effectively attack the neutral evaluator on all fronts, including her credentials, the party and child interview process, observations, collateral source interviews, psychological testing, inferences drawn and conclusions formulated. Nothing less than the trajectory of a child’s life may be at stake.

For additional information, ask Dror Bikel at Bikel & Mandarano.

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