As 2023 comes to an end, so too, does my 28year stint as forensic child custody evaluator. I have determined that I no longer wish to play that role in a family court system that on balance does more harm than good for families in need. What has long been apparent, but even more so to me within the past year, is the observation that the experience at court, usually unpleasant at best, is toxic at worst and more likely than not to eventuate in outcomes which exacerbate the family problems which brought the matter to court in the first place. What is supposed to lead to a resolution of conflict among family members often leads to irreparable damage beyond the reach of the prospect of conciliation so desperately needed by the subject child. Splitting, a manifestation of all good vs all bad, dichotomous thinking, placing the child in the middle of parents at war with each other, is almost always present before a family court case begins, and typically increases rather than decreases in magnitude as a direct result of what transpires at court. More pronounced splitting eventuates in iatrogenic outcomes for the child as well as for the parents. After months or years of adversarial litigation at a cost usually spiraling into the tens of thousands of dollars, the end result typically features deeply embittered, resentful parents and a child who is consequently at heightened risk for any combination of anxiety disorder, depression, conduct disorder, academic problems, social isolation, and eventual alcohol and/or substance abuse. The family court experience doesn’t cause these problems, it simply potentiates deterioration. It doesn’t have to be this way. REFORM IS NEEDED. NOW!
At the core of the problem is the adversarial nature of family court proceedings, comparable to what is found at criminal court and other judicial forums. The attorneys for one parent strive to do everything legally permissible to discredit the other parent, thereby building a case for maximizing legal, residential and financial benefits accruing to their client. The attorneys for the other parent join the battle. It is indeed A BATTLE that may continue for many years. Accusations about the missteps – true or exaggerated or false – of a parent, made in the form of verbal attacks in open court, predictably enrage the object of such attacks, leading to a round of counter-attacks. Even though the accusations are uttered by an attorney, the parent experiences it in real time as a direct attack by the other parent. If each parent regarded the other in negative terms to begin with, they are now being propelled to consider each other in malevolent, if not evil terms. When they next see their child, their angry, distrustful feelings towards each other are apparent in their demeanor and mood, even if they refrain from saying anything untoward about each other. Splitting between the parents is thereby internalized within the child, now beset with increased loyalty conflict and the challenge of how to relate to one parent without losing the love of the other.
When family court was established, no distinction was made regarding the rules of evidence applicable within this very special forum as opposed to other courts. As explained in a letter sent to me on September 8, 2023 by Richard F. Spolzino, Esq., Counsel to the Administrative Judge of the State of New York Unified Court System, New York City Family Court, “an attorney conducting a cross-examination of a witness is entitled to ask any question that he or she reasonably believes may elicit relevant, material and competent information, including questions about the qualifications or motivation of an expert witness…the questioning may be used in an attempt to discredit the witness’s testimony…the court may not prohibit such questioning because it may limit the right of the parties to probe the credibility of the witness.” An experienced consulting attorney adds that “statements made in court or in pleadings filed in court are generally protected by litigation privilege.” This seems to limit the potential protection afforded by defamation claims when exaggerated or mendacious accusations are made against either party or against any witness at family court. Michael J. Pulizotto, Esq., Chief Clerk for the Deputy Chief Administrative Judge, Office of Court Administration, State of New York Unified Court System, in an October 18,2023 letter to me, points out that some protections within the law do exist, as follows: “Under the Rules of Professional Conduct (Part 1200 of the Judiciary Law, 22 NYCRR $1200.0), a lawyer may not ask any question that the lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person. Rule 3.4(d)(4). Also, a lawyer may not participate in the creation or preservation of evidence when the lawyer knows, or it is obvious, that the evidence is false. Rule 3.4(a)(5). Also, a lawyer may not state or allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. Rule 3.4(d)(1).” This seems to reduce the chances that an attorney at family court might attack the character of a parent litigant in an attempt to discredit him, her or even an expert witness. Right? WRONG!
In June, 2023, I was testifying as an expert witness in a child custody case for which I conducted forensic evaluations, when I was suddenly attacked by the mother’s attorney who cast me as being biased against her client. Couching her questions in a manner suggesting verification of established fact, the attorney alleged that I had use vile, misogynistic and anti-LGBTQ terms in reference to her client. No clearly stated basis or foundation to support her claims were offered until tentative, self-contradictory explanations were given. The attorney at first stated that she believed it was the mother’s therapist who claimed that I had referred to the mother as a “lesbian whore.” At a subsequent proceeding, the attorney stated that it was the therapist’s supervisee, who happened to be the child’s therapist, who filed an affidavit in which he refuted my denial of the initial allegation about my having made the slur. Both therapists had a motive for attacking me as I had previously recommended that the child’s therapist be changed because of an inherent conflict of interest, in combination with significant bias towards the father elicited from mother’s therapist. Ample protection was, unfortunately, not afforded by the presiding Judge who ruled two months after slanderous attack that a sufficient foundation had been given permitting the attorney to question me as she did. In my estimation, the Judge erred grievously, although she later atoned for her misstep when she finally ordered that the child’s therapist be removed in favor of a new therapist approved by both parents. If someone like myself, a professional with 55 years in the field, deemed by the court in question to be an expert in child psychology, with experience as expert witness for Special Victims Unit prosecutors at criminal courts in Brooklyn N.Y. and Queens, N.Y. and in preparing reports on child abuse for the United States Supreme Court, can be so readily abused at a family court proceeding, what hope does an unsuspecting parent litigant have?
In the case of the attack against me, the accusations could have been immediately challenged by the Judge by demanding that the attorney provide ample foundation, including the source of the allegation, the context within which it was made, and the relationship between the source and either litigant or the witness. Perhaps the pertinent rules need to be more rigorously operationalized; perhaps family court Judges require training in this area. But this alone would not solve the main problem requiring an overhaul. The adversarial model should be entirely removed from family court, to avert the crippling splitting which undermines healing at all levels. What is needed is the creation of a FAMILY CONCILIATION COURT, wherein winning and losing is replaced by conciliation on behalf of the child. This would be a place where attacks on character would be forbidden. It would be a place where the focus is on parental strengths and attributes that should be made available to the child within the parenting plan. Parental deficits and mistakes would be identified not as ammunition for winning points against an adversary, but to ensure that special training or treatment needs are addressed on behalf of the child. Family court proceedings are forever preoccupied with which parent has the most deficits. It is comparable to a baseball fan attending a game at CitiField, and keeping his or her eyes glued to the scoreboard to see which team has the most errors, as if the opposing team would win by default. We should instead be looking at the strengths of each parent just as we appreciate the strengths of each team, embodied by the totals in the runs and hits columns.
Change in the family court structure, rules and procedures will require heavy lifting by all those who agree it is necessary. Revamping applicable rules of evidence and the parameters for cross-examination will reportedly require legislation at the state level. It would appear, however, that some mitigation of the problem of a toxic environment within the courtroom may be realized at the local court level through procedural changes as well as the application of the laws of human decency. All attorneys must learn that whenever they attack the other parent – the so-called “bad guy” – they are concurrently attacking their own client’s child. My own inclination going forward is to be very demanding in considering new referrals for court-ordered family treatment. I may find it necessary to ask that court proceedings be suspended for a period to give sufficient time for treatment, unimpeded by the effects of an adversarial court case, to gain traction. I may also require that treatment progress notes be respected as privileged information that must be withheld from the court proceedings, lest their content be used as ammunition by attorneys in search of errors to list on the scoreboard.
At the core of the problem is the adversarial nature of family court proceedings, comparable to what is found at criminal court and other judicial forums. The attorneys for one parent strive to do everything legally permissible to discredit the other parent, thereby building a case for maximizing legal, residential and financial benefits accruing to their client. The attorneys for the other parent join the battle. It is indeed A BATTLE that may continue for many years. Accusations about the missteps – true or exaggerated or false – of a parent, made in the form of verbal attacks in open court, predictably enrage the object of such attacks, leading to a round of counter-attacks. Even though the accusations are uttered by an attorney, the parent experiences it in real time as a direct attack by the other parent. If each parent regarded the other in negative terms to begin with, they are now being propelled to consider each other in malevolent, if not evil terms. When they next see their child, their angry, distrustful feelings towards each other are apparent in their demeanor and mood, even if they refrain from saying anything untoward about each other. Splitting between the parents is thereby internalized within the child, now beset with increased loyalty conflict and the challenge of how to relate to one parent without losing the love of the other.
When family court was established, no distinction was made regarding the rules of evidence applicable within this very special forum as opposed to other courts. As explained in a letter sent to me on September 8, 2023 by Richard F. Spolzino, Esq., Counsel to the Administrative Judge of the State of New York Unified Court System, New York City Family Court, “an attorney conducting a cross-examination of a witness is entitled to ask any question that he or she reasonably believes may elicit relevant, material and competent information, including questions about the qualifications or motivation of an expert witness…the questioning may be used in an attempt to discredit the witness’s testimony…the court may not prohibit such questioning because it may limit the right of the parties to probe the credibility of the witness.” An experienced consulting attorney adds that “statements made in court or in pleadings filed in court are generally protected by litigation privilege.” This seems to limit the potential protection afforded by defamation claims when exaggerated or mendacious accusations are made against either party or against any witness at family court. Michael J. Pulizotto, Esq., Chief Clerk for the Deputy Chief Administrative Judge, Office of Court Administration, State of New York Unified Court System, in an October 18,2023 letter to me, points out that some protections within the law do exist, as follows: “Under the Rules of Professional Conduct (Part 1200 of the Judiciary Law, 22 NYCRR $1200.0), a lawyer may not ask any question that the lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person. Rule 3.4(d)(4). Also, a lawyer may not participate in the creation or preservation of evidence when the lawyer knows, or it is obvious, that the evidence is false. Rule 3.4(a)(5). Also, a lawyer may not state or allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. Rule 3.4(d)(1).” This seems to reduce the chances that an attorney at family court might attack the character of a parent litigant in an attempt to discredit him, her or even an expert witness. Right? WRONG!
In June, 2023, I was testifying as an expert witness in a child custody case for which I conducted forensic evaluations, when I was suddenly attacked by the mother’s attorney who cast me as being biased against her client. Couching her questions in a manner suggesting verification of established fact, the attorney alleged that I had use vile, misogynistic and anti-LGBTQ terms in reference to her client. No clearly stated basis or foundation to support her claims were offered until tentative, self-contradictory explanations were given. The attorney at first stated that she believed it was the mother’s therapist who claimed that I had referred to the mother as a “lesbian whore.” At a subsequent proceeding, the attorney stated that it was the therapist’s supervisee, who happened to be the child’s therapist, who filed an affidavit in which he refuted my denial of the initial allegation about my having made the slur. Both therapists had a motive for attacking me as I had previously recommended that the child’s therapist be changed because of an inherent conflict of interest, in combination with significant bias towards the father elicited from mother’s therapist. Ample protection was, unfortunately, not afforded by the presiding Judge who ruled two months after slanderous attack that a sufficient foundation had been given permitting the attorney to question me as she did. In my estimation, the Judge erred grievously, although she later atoned for her misstep when she finally ordered that the child’s therapist be removed in favor of a new therapist approved by both parents. If someone like myself, a professional with 55 years in the field, deemed by the court in question to be an expert in child psychology, with experience as expert witness for Special Victims Unit prosecutors at criminal courts in Brooklyn N.Y. and Queens, N.Y. and in preparing reports on child abuse for the United States Supreme Court, can be so readily abused at a family court proceeding, what hope does an unsuspecting parent litigant have?
In the case of the attack against me, the accusations could have been immediately challenged by the Judge by demanding that the attorney provide ample foundation, including the source of the allegation, the context within which it was made, and the relationship between the source and either litigant or the witness. Perhaps the pertinent rules need to be more rigorously operationalized; perhaps family court Judges require training in this area. But this alone would not solve the main problem requiring an overhaul. The adversarial model should be entirely removed from family court, to avert the crippling splitting which undermines healing at all levels. What is needed is the creation of a FAMILY CONCILIATION COURT, wherein winning and losing is replaced by conciliation on behalf of the child. This would be a place where attacks on character would be forbidden. It would be a place where the focus is on parental strengths and attributes that should be made available to the child within the parenting plan. Parental deficits and mistakes would be identified not as ammunition for winning points against an adversary, but to ensure that special training or treatment needs are addressed on behalf of the child. Family court proceedings are forever preoccupied with which parent has the most deficits. It is comparable to a baseball fan attending a game at CitiField, and keeping his or her eyes glued to the scoreboard to see which team has the most errors, as if the opposing team would win by default. We should instead be looking at the strengths of each parent just as we appreciate the strengths of each team, embodied by the totals in the runs and hits columns.
Change in the family court structure, rules and procedures will require heavy lifting by all those who agree it is necessary. Revamping applicable rules of evidence and the parameters for cross-examination will reportedly require legislation at the state level. It would appear, however, that some mitigation of the problem of a toxic environment within the courtroom may be realized at the local court level through procedural changes as well as the application of the laws of human decency. All attorneys must learn that whenever they attack the other parent – the so-called “bad guy” – they are concurrently attacking their own client’s child. My own inclination going forward is to be very demanding in considering new referrals for court-ordered family treatment. I may find it necessary to ask that court proceedings be suspended for a period to give sufficient time for treatment, unimpeded by the effects of an adversarial court case, to gain traction. I may also require that treatment progress notes be respected as privileged information that must be withheld from the court proceedings, lest their content be used as ammunition by attorneys in search of errors to list on the scoreboard.
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