Seven Tips for Direct Examination of a Custody Evaluation Expert
- Know what your expert is going to say before you arrive at the hearing. While it is always best to be able to depose your expert ahead of trial, there are times when it is impossible to do so. Make sure that you take the time to call your expert in advance and go over the questions and areas you plan to cover in advance. Make sure you have an updated copy of your expert’s CV and use it as an exhibit. Finally, make sure your expert’s testimony meets all statutory requirements and will not be subject to exclusion on that basis or subject to hearsay as a result of not being timely submitted.
- Know your Standards for Admissibility. Your expert will be testifying on the ultimate issue, which is set out in Federal Rules of Evidence 704. Because this is not a discussion of facts, but an opinion based upon his or her evaluation, you must support the testimony with a foundation. FRE 702 outlines testimony of expert witnesses while FRE 703 outlines bases of an expert. Be sure to review the statutes to prepare your direct examination.
- Provide your expert’s background. You will want to make sure that you provide testimony from your expert that he or she has the knowledge, skill, experience, training or education to qualify as an expert in the field of child custody. The questions that you will ask should include questions about education, professional and clinical experience, certifications, licenses, prior experience with litigation, experience as a custody evaluator and as a qualified testifying expert. Arguably, a determination that an expert's opinion will help the trier of fact has already been made if a custody evaluator has been appointed prior to a report being prepared. But perhaps not, if your expert is not otherwise qualified under the APA or AFCC guidelines and standards.
- How did your expert reach his or her conclusions? You will want to have your expert testify to: the reliable scientific principles in the field of child custody; and how were they applied to this case? They will need to testify to the following guidelines and standards: Model Standards of Practice for Child Custody Proceedings from the Association of Family and Conciliation Courts (AFCC); and The American Academy of Matrimonial Lawyers (AAML) published its Child Custody Evaluation Standards in 2013. Proceedings;
- Submit evidence on the recommendations to support your client’s burden of proof. You need to know the state statutory standard and any custody factors that must be considered, particularly the best interests of the child (BIOC). Make sure you cover each recommendations to support your client’s case and the have your expert testify to how those facts and data were applied and analyzed in coming to his or her recommendations. It would be wise to prepare an outline of your proof to make sure you hit the highlights in the direct examination of your witness.
- Cover any additional recommendations made in the best interests of the child. The recommendations should cover the ultimate issue (custody, parenting time and/or relocation of the child) but may also include psychotherapy or treatment of the parties and children and problem solving suggestions such as parenting coordination, parallel parenting, or coparenting classes or counseling.
- Anticipate what points your opposing counsel with attack on cross. You must consider whether to approach the other side’s attack proactively or defensively. You may want to consider financial biases and inclinations (how much was your expert paid? Who paid the expert? How often does he/she provide evaluations for you or your firm?); practice scope (is your expert a full time evaluator or still a treating clinician?); conflicts of interest with you or your firm; and did your expert meet all the statutory requirements for a custody evaluation?
Seven Tips for Cross Examination of a Custody Evaluation Expert
- Note the evaluator’s mental health license. In preparing for cross examination, you want to make sure the evaluator met the AFCC Model Standard of Practice for a Child Custody Evaluation which establishes that a child custody evaluator shall have specialized knowledge and training in topics related to child custody work and shall keep abreast of the ever evolving research in the field; child custody evaluators shall have the minimum of a master’s degree in a mental health field that includes formal education and training in the legal, social, familial and cultural issues involved in custody and access decisions; and child custody evaluators shall possess appropriate education and training. All evaluators who have fewer than two years experience are encouraged to seek ongoing supervision prior to offering to perform or accepting appointments to conduct evaluations. In addition, determine if the evaluator has followed the APA Guidelines in addition to any relevant state guidelines.
- Note the specific referral questions that the evaluator was asked to address. Be sure that the evaluator answered the referral questions in the order and identify if the evaluator addressed any questions that were not intended to be answered. Answers to these questions may be challenged if they were beyond the scope of the evaluation order.
- Critically read through the report straight through. Many times in reviewing a custody evaluation, we simply jump to the conclusion and fail to read the report cover to cover. Sit down and critically read the evaluation looking to make sure that the evaluator carefully wrote the report down to using correct names, current research studies and case law. It is easier to find weaknesses in the report by reading it thoroughly.
- Organize the evaluation’s methods. A key part of evaluating the report and looking for weaknesses to attack is to organize the evaluation’s conceptual framework and the practical framework necessary for an evaluation. The conceptual framework encompasses the BIOC including the parents’ attributes, including skills, deficits, values, and tendencies relevant to parenting; the child’s psychological and developmental needs, including factors related to emotional development, family issues, school, and peer relations; and the resulting fit of (1) and (2)—What parenting arrangement best fits what each parent offers with the child's needs? The practical framework necessary for an evaluation includes: face-to-face interviews with each parent and with the child, as well as joint interviews with each parent separately and the child, psychological testing and questionnaires that a parent is asked to complete, and collateral information that the evaluator should consider: interviews with other persons who have relevant information about case issues, and reviews of relevant records and legal documents.
- Create a methods timeline. Creating a timeline is another way to attack weaknesses in a custody evaluation. Start with the completion date of the report and go backwards to create a timeline. Specifically, you should look for the dates of interviews, testing and collaterals. As many reports may take over a year to complete it is possible to argue that the data is stale if more than six months have passed since an evaluator tested a subject or met with the child. Additionally, it may be possible that the data was hurriedly gathered or sought at the end of the case. Many times, an evaluation can be attacked if the evaluator only sought interviews with witnesses and collaterals days before the report was published.
- Identify the report’s conclusions. This may sound like it goes without saying, but in preparing for your cross examination, you should evaluate if the conclusions, which are social-science based inferences reach by the evaluator match the evidence presented. If there is no evidence in the report that a parent is alienating or unresponsive to a child, the report may be challenged as its conclusions were not consistent with the data collected by the evaluator.
- Critically review the evaluation opinions and recommendations. Finally, it is important to review the evaluation opinions and recommendations to make sure that there is not too big of an analytical gap between the data and the conclusions or opinion proffered. If the recommendations do not match the data, this is a grounds for challenging the evaluator’s conclusions and recommendations.
Start Your Section Membership Today!
Join the ABA's Section of Family Law and gain value and insight in your career, no matter your experience level. Signing up is easy and grants you member-only access to the latest news, information, and thinking.