Forensic Expert Roles and Services in Child Custody Litigation: Work Product Review and Case Consultation

Abstract

Courts determining the best interests of children in custody disputes frequently request help from mental health experts. This article addresses the three expert services typically provided to the court (evaluator, reviewer, and instructor) as well as the trial consultation services offered to attorneys for the parties. After noting recent developments in scientific methodology and processes that evaluators use to inform and instruct the court, we examine the work product review and consultation services that have emerged to help the court understand the scientific relevance and reliability of the evaluator's work product. But reviewers, instructional experts, and consultants are retained by attorneys, not the court. Ethical reviewers and consultants remain objective and loyal to the data and facts of the case. While others have suggested ethical and professional standards based upon “role” designations, we advocate for recognizing the overlapping nature of these four services and argue that reducing these services to their “role” obfuscates the complexity and multiple facets within each service. Establishing best practices and minimum standards should revolve around the expert's loyalty to the data, the ability to develop opinions based upon this factual basis, and the ability to resist pressures that bias or distort this process.

KEYWORDS:

• admissibility and reliability of evidence
• child custody evaluation
• consultant
• expert ethics
• expert opinion
• expert services and roles
• work product review

Notes

While standard of practice requires custody evaluators to create and maintain a very high quality case record, this often is not the case. Interview notes often are approximations or narrative and not verbatim. The only “true interview data” would be collected by electronic recording, which is easy to accomplish, but few evaluators do so.

Professional organizations have weighed in is support of the position of requiring direct, personal examination of a person to offer opinions about psychological-psychiatric diagnosis in the form of guidelines, standards, and amicus briefs in appellate cases, American Psychological Association, American Psychiatric Association, and American Bar Association.