Testimony Before the Matrimonial Commission
Nancy S. Erickson, Esq.
Good morning. I
thank the commission for inviting me here
today to testify on the subject
of forensic evaluations in
custody cases, especially those
involving domestic violence.
I've been an attorney for over 20 years -- over 10 as a
law
professor. Currently I am a senior family law attorney
at
legal services in brooklyn, representing low-income clients,
primarily women, in matrimonial
and family court cases. I
represent many battered women in
custody cases.
I wish I had time to give testimony on issues other than
forensic evaluations. Most
importantly, there is a critical
need for counsel for low-income
clients, which could be
provided either by court-ordered
counsel fees from the
monied
spouse or by appointment of assigned counsel.
I would also like to urge this commission to question the
need for no-fault divorce at
this time. There are
other
needs that are far more urgent
and should be addressed prior
to no-fault. My low-income clients have no need for no-
fault divorce -- they almost
always have grounds -- namely
cruelty or abandonment. They
need reforms in laws regarding
attorney fees, maintenance for
dependent spouses, health
insurance after divorce,
domestic violence, custody, and
many other areas far more than
they need no-fault. No fault
would just give the monied spouse another advantage over the
non-monied
spouse, so the playing field would be more uneven
than it is now.
Turning to forensics, I should mention that next spring I
expect to receive my master's
degree in forensic psychology.
You may wonder, why would a middle-aged
attorney who has had
a long career in family law want
to stay up until
studying forensic psychology
after she's been in court all
day?
The answer is that I was baffled and concerned about the
number of cc evaluators in my
practice and my colleagues'
practices, who seemed to know
little about domestic violence
and often paid little attention
to it when they conducted
their evaluations. For example,
some evaluators held joint
meetings of the battered woman
and her batterer, which
further traumatized the battered
woman. Some evaluators
misdiagnosed battered women as
having serious psychopatholo-
gy,
when the women were simply showing symptoms of the
trauma they suffered at the
hands of their abusers.
The evaluators often were critical of battered women who
were reluctant to agree to joint
custody or unsupervised
visitation to the abusers -- the
evaluators labeled these
mothers as "unfriendly
parents" and even recommended custody
or joint custody to the abuser.
For example, just recently a
forensic recommended joint
custody when the abuser-father
had a criminal conviction for
abusing the mother. In what
other situation would the law
put a crime victim on the same
level as the criminal and
require her to have unnecessary
contact with the criminal? This
is one of many reasons why a
presumption of joint custody
would not be beneficial in new
their parents have joint custody
is superior to the outcomes
for children when there is a
traditional custody/visitation
situation, but the empirical
research does not back up this
claim.
Judges often follow the recommendations of the custody
evaluators, even when based on
faulty procedures and faulty
logic.
I wanted to understand how this could happen. Custody or
joint custody to an abuser is
virtually never in the best
interests of a child.
After three years of studying forensic psychology, I
think I
know some of the reasons
why.
1.
or caselaw
regarding forensics, and practices differ tremen-
dously
from county to county, court to court, and judge to
judge.
2. Child custody
evaluators rarely have solid training in
how to conduct evaluations and
in the dynamics of domestic
violence and the effects of
domestic violence on battered
women and on children.
Before I go further, I want to state loud and clear that
I
respect the mental health
professionals who are conducting
evaluations for our courts --
they are usually well inten-
tioned,
hard working, and well trained as clinicians in
their fields: psychology, psychiatry, and social work.
They are also often underpaid, especially if they accept
government fees. I did not come here today to criticize
them. Indeed, I'll soon have the training to be one
of
them.
I am here to say that they are valiantly trying to do an
extremely difficult job without
some of the basic tools that
they need:
1. Specific forensic training, which is virtually never
included in their graduated programs. For example, the
american
psychological association has guidelines for foren-
sic evaluators and for child
custody evaluations, in addi-
tion
to the broader ethics rules that govern their practice.
I have cited these in the bibliography I provided to the
commission. A course devoted to
these guidelines and rules
would be a basic building block
of a solid forensics train-
ing.
2. Second, custody
evaluators need specific training in
domestic violence and other
types of family violence, such
as child abuse, including child
sexual abuse.
after the oj
simpson custody case -- now requires that
forensics have domestic violence
training. The
rules are also in my
bibliography. Without such training,
the evaluator is likely to
accept the same myths and biases
about domestic violence and
battered women held by many
laypeople -- including me, until
I studied and practiced
family law. I, like most people,
was very naive.
3. Third, custody
evaluators need specific training in the
laws governing custody and
visitation in
rules of evidence and procedure
that apply to expert wit-
nesses generally. The apa
rules for forensics make this
clear -- forensics must know the
law!
The role of an expert witness is to assist the
court. Yet
many custody evaluators are not
conversant with ny custody
law. Ny
custody law provides, for example, that domestic
violence is the only factor the
court is mandated by statute
to consider when making a custody
decision.
If the custody evaluator does not know the law and has no
expertise in domestic violence,
how can the evaluator possi-
bly
assist the court in a domestic violence case? And we can
expect that 1/3 to 1/2 of
contested custody cases will
involve domestic violence.
The role of a forensic evaluator is a different role -- a
different job -- than the role
the mental health profession-
al trained for in graduate
school, which is the role of a
clinician, a therapist, trained
to diagnose and treat pa-
tients.
Reasonable persons can differ on whether the courts
should
use forensic evaluators at all
in custody cases. Tim Tip-
pins and others have raised that
issue. But if our courts
are going to use them, their
role will be that of an expert
witness, providing assistance to
the court for the purpose
of a legal determination.
Therefore, the mental health professional taking on that
role will have to step out of
his or her usual role and take
on the role of an expert
witness.
The APA rules view this role as the role of a detective
with
special expertise in areas of
psychology relating to chil-
dren
and families. The Second Department, in Wissink, set
forth guidelines for the kind of
detective work the court
believes would be necessary for
a comprehensive child custo-
dy
evaluation. Such a role would require
specialized train-
ing.
To obtain such training, I have taken, or will take,
courses such as
developmental psychology (child psychology)
family violence
ethics
psychology of victims of crimes & disasters
psychology of criminal behavior
interviewing methodology
I also did an independent study on how to do child
custody
evaluations -- procedure. Even
though my program is in
forensic psychology, it offers
no course on child custody
evaluations. This is not unusual. Most forensic psychology
programs are geared toward
criminal issues, such as the
insanity defense, not civil
cases.
I have also taken courses in psychological testing -- spe-
cifically
the MMPI and the Rorschach. But those
courses did
not discuss the fact, for
example, that such tests often
result in misdiagnosis of
battered women. Research shows
that battered women given the
MMPI test can look like they
have borderline personality
disorder, when they really are
suffering from post-traumatic
stress disorder, which was
caused by the abuser. Currently, I am writing my thesis on
the MMPI and battered women.
In conclusion, my recommendations are:
1. The 1st and 2d
departments should continue their recent-
ly
inaugurated training sessions for child custody evalua-
tors
and law guardians. I applaud Harriet
Weinberger at the
2d Dept for her hard work in this regard -- her third
pro-
gram is coming up soon. I have
given her the curriculum I
designed to train mental health
professionals to do foren-
sics,
and I know she has consulted others as well.
2. All mental
health professionals who wish to conduct
child custody evaluations should
be required to register
with the appellate divisions --
it is not mandatory at the
present time.
3. A committee
should be set up to consider legislation
and/or court rules on child
custody evaluators. The commit-
tee should be interdisciplinary
-- lawyers, psychologists,
psychiatrists, and social
workers -- and should include
advocates for battered women,
abused children, low-income
custody litigants, and other
important stakeholders.
The committee should start with basic questions:
--
should the courts be using custody evaluators at all?
-- If so, in what cases, and what should
their role be?
-- What training
should be required of them? For example, I
would suggest that sensitivity
to ethnic and cultural dif-
ferences
in our society is extremely important.
-- Should they be
rendering opinions as to which parent
should have custody -- which is
the ultimate issue in the
case, and is for the judge to
decide -- or only opinions on
lower-level questions such as
the parenting strengths and
weaknesses of each parent? The
"ultimate issue" questions is
hotly debated among forensic
mental health professionals.
Additionally, some basic procedures need to be worked
out.
Some examples are:
a. How is the
evaluator to be chosen? Some judges let
the law guardian chose -- is
that proper? Some judges
appoint evaluators they like --
is that proper?
B. Who should be allowed to get a copy of the
evaluator's report? Some divorce judges prohibit even the
attorneys from getting copies of
the reports -- the attor-
neys
are only permitted to read the reports in the court-
house and take notes. This is a serious violation of due
process -- it makes it
impossible to prepare for trial
properly.
C. Should there be guidelines the courts must
follow
in deciding whether a party can
afford to pay part or all of
the costs of the evaluator? There are currently
no guide-
lines. Low-income individuals are often ordered to
pay when
they clearly can't afford to.
There are many other subjects the committee should
review. I
will end now and thank this
commission for the privilege of
addressing you.
Nancy S. Erickson, Esq.
Legal Services for
718-852-8888 x 108 * for identification