Family lawyer Allison Williams and forensic psychologist Erik Dranoff speak with Family Lawyer Magazine Editorial Director, Diana Shepherd, about the role custody evaluations play in the divorce process.
Allison Williams is a family lawyer and the founder of Williams Law Group, the only New Jersey law firm founded by an AAML fellow that focuses on the issues of child abuse, neglect, and maltreatment.
Dr. Erik Dranoff is a forensic psychologist and custody and parenting time evaluator.
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What is the role of a custody evaluation in a divorce proceeding?
Allison: One thing that I will always tell a client when they ask me, “Do I have to have a custody evaluation?” is that in a divorce proceeding, judges really want to have information beyond the space of the parties to help them make decisions about the children. It is particularly important where you have two people that are waging allegations at each other. Sometimes the allegations, if proven true, are very serious, and so, judges really want to get a sense from the perspective of a mental-health professional of what is the functioning of these people. Can they co-parent together? Is the child going to be harmed by being placed with either or both of the parents? If the parents are both functionally fit, what is their capacity to deal with each other as parents and is the child going to be better served with one or the other? That really is what the role is of a custody evaluation. Now, one thing you have to also consider is that the attorney is going to have to use that information when they gather facts and data that are in the evaluation report from an expert and present that information persuasively to a judge at trial.
When you speak with a divorce attorney and agree to perform a custody and parenting time evaluation, what sort of information do you collect?
Erik:First, I would like to thank you for inviting Ms. Williams and me to participate in the podcast. My answer to this question may surprise you. While an attorney may be eager to discuss the case with me over the phone, I believe that this is not the best approach when starting a child custody/parenting time evaluation. The reason that I don’t want to discuss the case is twofold. First, the information that the attorney may provide over the phone may bias my impression of the case. The other reason is to assure that the attorney understands that I am not “on their side” of the case and will not be an advocate for their client. After I make my approach clear to the attorney, I ask them to provide me with a list of specific questions that they would like me to evaluate and explain the typical procedures I use for the evaluation.
How important is psychological testing in determining the best residential custody arrangements for children in divorce?
Erik: Again, my answer to this question may surprise you. In a child custody evaluation, I am looking to collect information from a variety of data sources and psychological testing is only one source of data. During the evaluation, I am looking to obtain information from behavior observation, clinical interviewing, psychological testing and parent-child interactions as well as information from collateral sources such as medical providers, mental health providers, teachers, and other individuals who may be able to provide information about the family. The psychological testing is only one method of data collection, which can provide information about mental health functioning, parenting stress, and parent-child relationships.
Let’s say your client has hired someone like Erik to conduct a custody evaluation and he renders a report that is not favorable to your client. How do you proceed?
Allison: It is not at all uncommon that your client will believe that they present better than you see them to be or that other professionals will see them to be, and so, it is very helpful when you are consulting with a mental-health professional that you gain their perspective before they write a report. I always tell professionals I am working with, give me a call and let me know the good news and the bad news, whatever it is that you have to say about this person, so I can gather a sense of whether it is worth my client’s money for you to write a report. If for whatever reason that didn’t happen, or perhaps I got a different sense of what the report would contain before I received the report and then I get a report that is not favorable for my client, you are really left with limited options. You can always go to the professional and see if there is some way he or she might have omitted reviewing certain information.
Perhaps there are documents that you could provide that will shed more light on a situation, or sometimes there are third parties that have information that have not spoken to the evaluator, and so, you might be able to have them re-visit their opinion. Other times, their opinion is steadfast that your client is the problem or not a good parent to have custody, and in those circumstances, you can always go out and retain another expert, if the person was somebody that was court-appointed. If you would hire Erik, however, you are going to be very limited in being able to go out and get a second expert assessment for a variety of reasons.
First, judges don’t like to have children subjected to multiple interviews. They really like to see as limited an opportunity as possible to gather that information. They know that children will often change what they say to a professional when they believe that they said “the wrong things” the first time around, and so you really want to be very cautious about using that request for any reason. Sometimes you might say there is a bias with the expert, and sometimes you might say that expert has been tainted by the adversarial nature of the litigation.
Either way, you can always ask for another expert. Sometimes you have to settle your case based on the data that you have and you have to say, client, the expert is saying that you have an issue. Perhaps, rather than use this report now to hurt your case, we can always resolve our case now with some type of prophylactic measure – that you are going to get counseling, perhaps you’re are going to seek to review medication, perhaps you’re going to have some period of time not being a custodial parent – and then we can take a look at it. It is in that kind of resolution you’re often in a much better situation than you would have been, even if you had gotten a report that was more benign from the other party.
It sounds like you probably have more options when the report is benign than when it is unfavorable.
How immutable is your opinion on custody and parenting time, when neither parent present is perfect, but neither is particularly problematic either. Are you open to confer with an adverse expert to compromise or perhaps to mediate the issue for the parties?
Erik: I may be wrong but I am not aware of any perfect parents. My approach to custody/parenting time evaluations is to conduct the evaluation over the course of several months so I can get to know the parents and children well. Because the findings of the evaluation will be used to help the judge make decisions in the case, it is extremely important that an evaluator take their time and consider all relevant information. It is also important for an evaluator to know when the evaluation requires an assessment that is outside of their competency. It is essential that an evaluator know their limitations and if needed, refer certain sections of the evaluation to another professional. In terms of conferring with an adverse expert to compromise the issue for the parties, I would be willing to consult only when the retaining attorney has agreed that I can consult.
If you get to the point of trial, what considerations are at play in preparing to question a mental-health professional regarding his evaluation?
Allison: There are a lot of factors that the court has to consider in determining custody and parenting time. It is by statute outlined what the court has to consider, and so most mental-health professionals will include that information in their report. One of the things that we will see, however, is that reports take on a life of their own. They tend to be centered around a theme, either because of their writing of the professional or because of the data that they collected. If you start to see a theme that emerges from the information in the report, that is really how you, as a matrimonial attorney, would want to focus your questioning.
For instance, if you represent the husband and the data that was collected on behalf of the wife evidences that the husband is short-sighted in his view of some medical concerns for the children, then you really want to spend your time going through all the ways in which that premise on the wife, stated by the wife, is not accurate and you would really want to focus a lot of attention on making sure that if the expert tried to reduce the credibility or question the parenting capacity of the father, based on that, that you would really want to go after that in questioning them.
Another good way of looking at a questioning expert is making sure what they are evaluating as critical to their decision is truly reliable information, because sometimes professionals put undue weight on things that may resonate because they are repeated but not necessarily look at the reliability of what they have been told. For instance, if an expert is focused on a child’s failing grades and perhaps the child was in the primary care of the mother during a semester when he or she failed in school, an expert could say, well, it is clear that the mother is not attentive to the child’s academic needs. The expert, however, may have overlooked that maybe the child was suffering academically because that was the first time that they were away from their father and, as a result, they had emotional issues that impacted their ability to do well in school – not because the mother wasn’t trying to address the problem, but because the mother just could not remediate the problem, because the child needed more time.
You really have to look at what is the underlying data, how good is the information that they relied upon, and then roll into the assumption or propositions that are stated in the report and be very thorough in examining the information that they have relied upon and the way in which they characterize the report. Sometimes they are simply unfair to the one party or another; other times, they are spot on. You have to really think about whether or not you want to question their credibility. You might have stronger arguments that you simply leave the negative data out there, acknowledge it, but don’t go so far as to disagree with something that really just cannot be called into question.
Have you seen a case where both sides hired their own custody evaluator and each came up with conflicting recommendations? What happens in this kind of case?
Allison: Unfortunately, it is not uncommon that parties going through a divorce simply do not trust each other enough to share a mental-health professional. They want to fix their own pony, and so when that happens, you would have then two professionals that are both going to be doing the same work – gathering data, reviewing documents, interviewing the parties, interviewing the children, and, in particular, observing the children with each of their parents. In those circumstances, you normally will see that the parent evaluators will come up with roughly equivalent recommendations. Sometimes you will have a report where it is the mother’s report and her expert says that she’s the parent of the year and the father is horrible and then the father’s report comes back saying that he is the father of the year and she is horrible, but that really is very rare.
In my experience, you are normally going to see shades of gray with both parents. We always use the saying in matrimonial law, “A 10 doesn’t marry a two.” You don’t normally get a situation where you have one parent that is completely bereft of any problems and the other one is very toxic. Every once in awhile you do, but mostly you are going to have, on a scale of 1-10, one expert is probably going to come at a 5 and the other one may say a 6 or 6.5, and if you have a difference of opinion, you really do try, once you get those reports, to merge the two opinions and come up with a resolution that both parties can live with. If you can’t, then you are really at the stage of gearing up for trial; you are going back and reviewing the parties’ custody and parenting time and derogatories that are typically propounded at the beginning of the case – that is when you start interviewing witnesses and, in particular, taking depositions of the mental-health professionals who authored the report so you have that information ready to impede credibility at trial.
Do you have a sniff test for parental alienation? How can you if a child has been coached by a parent to lie about or denigrate the other parent?
Erik: As far as I know, there are no formal tests to determine whether one parent is alienating a child from the other parent nor is there any tests to determine if the child has been coached by a parent to lie or denigrate the other parent. In some cases, one parent might be giving subtle cues that the other parent should be avoided, disrespected, or outright disliked. When I am working on a case where these issues are at play, I am interested in evaluating how each person within the family contributes to the alienation dynamics and this would require information from a variety of data sources, especially collateral contacts.
Can anything be done to compel a child to spend time with the alienated or out parent?
Allison: That is a very difficult question, and I have received that question quite a bit from clients over the years. Most often, judges are not inclined to force a child who is truly estranged from his or her parent – whether that child is alienated from the parent, meaning that there has been some act or some campaign on the part of one parent against the other to sever the tie or the emotional bond between the parent and the child, or the parent is simply estranged, i.e., a rift has been formed between the parent and the child. If there is any type of emotional distance and the child is repelled from a parent, judges fear forcing that child to have a relationship, because in those circumstances, more often than not, if you force the relationship, you are going to cause more antagonism between the child and the parent and, oftentimes, that makes the situation worse.
Now, early on in a parental alienation case, if you take action right away to stop the child from having distance with their parent – i.e., not seeing their parent, not talking to them – if you report the issue at a time when it is just starting, you usually make more headway than if you wait until a year or so has passed, where it becomes much harder. In those circumstances, judges had been known to enter orders, particularly directed at the custodial or the non-estranged parent. What I mean by that is, I think judges do some very creative things, such as to say that the child has to be told that the mother will get in trouble if the father does not have his parenting time, and sometimes you start punishing the child economically – we know that mother can only afford one or two extracurricular activities, and maybe the child is very sports inclined, but the child is going to be prohibited from engaging in certain sports if he does not see his father or the child is going to be prohibited from seeking economic support from father in those circumstances where he is not seeing the child.
Most recently in New Jersey, we actually had a judge in an order that said, if the child wanted the father to contribute to her college, he had to engage in mental health treatment counseling of at least five sessions to try to mend his relationship with his father as a condition of getting support. In those circumstances, sometimes the child will try, sometimes not. There are many reunification programs out there, the busiest program being the one that I think most people have heard of that will engage in intimate emotional and psychological counseling at a very intense level between the parent and the child to try to mend the rift.
Allison mentioned reunification programs for parental alienation. I’m wondering if these types of programs ever successful?
Erik: Reunification therapy is a court-ordered psychotherapy, usually where one parent has been shown to have an adverse relationship with the child and the goal of the therapy will be to help improve the relationship between the two parents. Often the child has very negative feelings towards one of his parents and may not want to be around the parent at all. The other parent may be providing overt or subtle cues that the other parent should be avoided or disrespected and could end up sabotaging the therapy. In the case where both parents were “on board”, this type of therapy can be successful – especially when the treatment provider is required to give updates to the court. To say that reunification therapy is never successful, I think wouldn’t be accurate, but to say it is successful all the time would also be inaccurate. It depends on the willingness of each party to participate, the relationship between the therapist and the family, and the structure that is provided by the court.
Allison Williams is a Union, New Jersey family lawyer who is certified by the Supreme Court of New Jersey as a matrimonial law attorney. To learn more about Allison, visit her firm’s online profile or her website: www.newjerseydyfsdefense.com.
Dr. Erik Dranoff is a licensed psychologist who provides clinical, neuropsychological, and forensic evaluations in New Jersey and New York. www.roselandtherapy.com.
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