A child custody expert witness, hired by only one parent, will inevitably be looked at as a hired gun. Here are 10 tips for family lawyers for success.
By Dr. Mark Banschick, Child Psychiatrist
As a child and adolescent psychiatrist, I’ve testified for many years as an expert witness and have some thoughts about the process. It is my honor to write for an audience who surely knows this subject well. In fact, as a family lawyer, you probably understand better than anyone that our judicial system is not well built to deal with the complex interpersonal issues involved in a bitter divorce like child custody. But good or bad, it’s the system that we have. There are no crystal balls and judges can be inundated with complaints that can be dizzying. They naturally turn to a child psychiatrist or another experienced child development expert to give some guidance.
The Child Custody Expert Witness: Ten tips for success
- First, try to pick an expert who is hired by both sides. This will give more credibility to whatever report she writes. An expert hired by only one parent will inevitably be looked at as a “hired gun” and a good judge will wonder about the wisdom of this consult. I only work this way. When I present it is with the clear understanding that I have tried my best to get to the bottom of the matter.
- Next, try to pay your expert up front if this is possible. Once again, this is the only way that I work. I am happy to share this with the court if asked, because it further establishes my credibility. I don’t ever want to anxious about anything other than doing a good job. If one parent is richer than the other, it won’t matter, even unconsciously, because I am not planning to approach him or her for money down the road.
- Understand that your client believes most of the things he or she is telling you. That does not mean that this is the full truth. Everybody distorts their experience of a divorce. Some do it purposely because they want to discredit their husband or wife. But most people believe their own distortions. This is a difficult problem for family lawyers because you are naturally inclined to believe your client, particularly when they are so tearful or angry about what has happened. As an expert witness I have had to work very hard to get the bottom of the situation, rarely with one hundred percent confidence. Don’t be surprised if the expert finds out that your client is manipulating the kids or isn’t the victim he is claiming to be.
- Be wary of parents who all of a sudden get interested in becoming a great parent when they realize that child support and sometimes, maintenance, is at stake. For instance, he can demand that she goes to work or get some training for future employment if he can manage to make sure that she’s not required to care for the kids all the time (I do not mean to be sexist here, but the gender roles tend to play out this way in the majority of the stories). When these cases come up – and they do frequently – everyone thinks it’s unfair. The working parent will hold that he is committed to caring for the kids (after all, his soon to be ex wife is “not the best mother”). He holds that his new found commitment should be honored. The non working parent is outraged because she believes that her husband is manipulative and “couldn’t care less – it’s all about the money.” These cases are very unhappy, and if the working parent makes a good showing, he may get his way. It will be a burden to prove that he is not just money seeking but also will be a bad parent going forward. Judges tend like joint custody (more about this later).
- Prepare your client well. The healthier clients will have no problem with the interview with an expert witness. They will be even tempered, try to give their side, acknowledge that their ex husband or wife has another take on things and simply argue their case based on the facts. Unfortunately, by the time we are at a custody evaluation, most of the healthier couples have already been weeded out. It takes only one person to make a case go badly, but usually, it takes two to tango. These more disturbed clients are very difficult to prepare.
- Prepare a disturbed client. This is a gargantuan task because, whether she is depressed or he’s a control freak, they tend to take matters into their own hands. If there is a treatable psychiatric problem, like depression or bipolar disorder, it is advisable (this is an understatement if there ever was one) to get your client treated before the evaluation. I have had unmitigated disasters as an expert witness, including parents who couldn’t stop talking, a client who tried to record me during a session (not good) and many who just couldn’t, didn’t know a lot about the kids, but had much to say about their ex’s love life or how she is taking all the money. As an expert, I want to know that this parent is reasonable, knows her children’s needs, can back up what she says with facts and has their best interests in mind. Vindictiveness and hostility may be appropriate feelings towards a husband or wife who betrayed you, but parenting is another matter. She should be able to talk about what he does that is useful as well as his misdeeds.
- It is a sad fact that kids sometimes need to be interviewed. This is the toughest part of a forensic child custody evaluation, because quite often you can’t get around interviewing the children. Let’s face the facts. This is not right, in any universe. The fact that grownups can’t decide the fate of their own kids and the courts need to step in is a sad truism that doesn’t make it right. These kids did not ask for the divorce. Now they have to deal with the discomfort of an interview with a stranger, and the worry that they will have to choose sides.
- Prepare the children. This is the job of a competent parent. There should be no preparation or leading the witness. This can be very difficult for a parent who is self righteous or manipulative. Just know that if the expert picks up a sense that the child has been coached – he uses words that are not age appropriate, or seems mechanical in her presentation – this will reflect badly on your client. The expert is looking at the innocent perception of the child’s experience. He will not be looking to make the child feel that he or she is choosing sides, and when well done the interview will seem like a friendly chat.
- With the biases of judges these days there is a good chance that he or she will want a joint custody arrangement, if both parents or more or less competent. Obviously, if you can demonstrate that the other parent is incapable of reasonable parenting or is not reliable then sole custody is preferable in order to have an orderly management of the children’s parenting environment. I have seen many cases in which joint custody was awarded only to be reassessed a year down the line, because it didn’t work out. If you think that your client was fortunate to get joint custody, make sure he or she doesn’t celebrate too quickly, but rather devotes him or herself to proving that the judge was correct.
- You may ask the expert to provide a plan that can maximize the chances of things working out. Perhaps she will recommend parent counseling to one or both parents. Perhaps a neutral party could be hired to manage disagreement (this is a job I have taken on with some real success) or one or more children may benefit from psychotherapy. It is good to have these suggestions in writing, because people tend to ignore many good ideas the minute they leave the court.
Our court system is not perfect and experts, judges and lawyers will get it wrong every now and then. But, with some good planning and a solid expert witness, you may get an outcome that works out for the children of a divorce case. The hard work of finding the right expert and setting it up properly is well worth it.
There is a lot at stake. You move on to the next case. These kids have to live with whatever is decided. Do your homework, try to hire the best out there, don’t use hired guns unless you have to, pay them upfront if possible, prepare your clients well, deal effectively with the disturbed ones and make sure the consultation provides direction to better ensure a good outcome.
You get one shot. Make this consultation with an expert witness really count.
Mark Banschick, MD is a child psychiatrist and the author of The Intelligent Divorce book series (www.TheIntelligentDivorce.com) and the online parenting course that may be useful to your clients (www.FamilyStablizationCourse.com). He is available for consultation or for professional public speaking a Bar Association Meetings etc. Dr. Banschick can be reached at: firstname.lastname@example.org.
When experts are less than objective or use different methodologies from each other, their results can be miles apart – which tends to polarize the litigants and does not pave the way towards an equitable resolution to the case.
We asked lawyers and other family law professionals on our website to help us answer the question: “Do expert witnesses’ opinions depend on or align with the party who hired them?” Six lawyers and three forensic experts accepted the challenge and submitted short articles to us; below, they discuss the Good, the Bad, and the Ugly of expert witness selection and testimony.