VII. TRIAL ISSUES
A. Discovery Techniques
The oral deposition can be extremely fruitful in a custody case. The opposing party should be deposed as well as any experts. Collateral witnesses such as other family members, caregivers, the child’s friends, school teachers should be considered. Financial considerations are a factor in deciding who to depose.
B. Testimony of Experts
Experts may be called and examined by the court or by any party to the action. Evidence Code §730. Neither party is precluded from presenting other expert evidence. Evidence Code §733.
Prior to trial be sure to read the report thoroughly. Check to see if there are any errors in the report, whether there are any specifics missing. See if the collaterals are misquoted. Is the report wildly unbalanced in terms of time that the evaluator spent with each client. Is the report consistent? Could you predict the recommendations based on reading of the report? (Try to refrain from reading the recommendations first. Read the report as presented by the evaluator and check to see if you are led to the same conclusion as the evaluator.)
Subpoena the records and notes of the evaluator prior to the hearing so that you will have to time to review the voluminous records and decipher the evaluators notes. You will not have sufficient time to do this in court while the evaluator is waiting for your questions.
Unless you are a familiar with the evaluator, do not automatically consent to their qualifications. If the matter involves abuse allegations, enquire regarding any specific training in this area.
Prior to the examination, review the report with your own expert. Be prepared to question the evaluator regarding the testing and the weight given to the testing by the evaluator. Be prepared to cross-examine the evaluator using other respected publications.
Question the evaluator regarding the specific findings and the basis therefor. If the evaluator ignored evidence which you felt to be important, ask the evaluator if it was considered. Question the evaluator if there are factual disputes and whether the evaluators’ opinion would change if the factual basis for their conclusion were to change. You may want to propose hypothetical situations to the evaluator. Be aware that evaluators will have their own biases and try to elicit testimony which reveals these biases if they are not in your client’s interests.
C. Trying a Case With an Adverse Evaluation From the Court
Avoid the Adverse Evaluation by Preparing the Client in Advance
1. Choosing the Evaluator.
A therapist who is counseling the parties should not make recommendations to the court as an evaluator. They are too emotionally involved and cannot be objective.
The evaluator should have special expertise in custody matters. Many therapists do not have this experience. The evaluators are licensed as psychiatrists, licensed clinical social workers, psychologist and Marriage, Child and Family Counselors.
Usually, attorneys choose evaluators who are or who have been on a court panel. Before choosing an evaluator, you should find out if they are fair and competent. Guard against an evaluator who is biased against your client or their position. Burn-out is an occupational hazard because this is stressful work. Make sure the evaluator still has enthusiasm for doing this kind of work. Many of the evaluators have written articles and books. Some of their articles have been published. Evaluators often speak before local bar associations.
Find out whether the evaluator’s reports are clear and to the point. Determine how long it takes them to complete an evaluation and prepare a report.
2. Preparing for the Evaluation.
An evaluator’s attitudes, beliefs and values will distort their perception of your client. Your client may be wrongly perceived if they are caught off-guard or the if client misunderstands the purpose of the session. Defensive and guarded people do not interview well. An evaluator will be naturally suspicious of them. Because of the limited time the evaluator has, first impressions count. It may be necessary to anticipate a possible misperception of your client by informing the evaluator in advance that your client has an off-putting manner but that he or she is a dedicated and loving parent.
The client will benefit if properly prepared for the evaluation by knowing how the evaluation will be conducted, knowing the type of questions that will be asked, and how the report is to be interpreted. If the client knows what to expect, he or she will less fearful, more natural, and better prepared to assist the evaluator.
(a) Deciding to Submit to An Evaluation. Before committing to the evaluation process, it is critical to be clear on what benefit you expect from the evaluation. So that the client has realistic expectations, I inform him of the following:
(b) If a parenting plan is working, it is unlikely it will be changed.
(c) The evaluator and the court are concerned with the best interests of the child. They are not concerned with the parent’s rights or that an order may or may not be fair.
(d) Fighting about the words joint custody versus sole custody is irrelevant; the time-sharing is most important. Focus the client on frequent and continuing contact and best interests of the child.
(e) Look at the custody situation in the long term. It often takes persistence to make a change. If the evaluator does not see it your way this time, do not alienate him or her. You may need that person the next time. More often than not, situations change. Also, don’t let the evaluator become your therapist or the child’s therapist, so they become neutralized.
(f) Move-away orders are in a class of their own. They are expensive and require tremendous resources to be successful, because most courts require a strong showing before allowing a parent to move with a child.
(g) Be realistic. The evaluator has a short time to do a difficult job. They have preconceptions and a way of looking at custody issues that must be taken into account.
(h) If your child has a preference, the evaluator is more than likely to recommend what the child wants, if they are articulate and have good reasons for their preferences.
(i) The evaluator may not may not make a clear determination as to which parent should get custody. Their report may be ambiguous and lead to more litigation.
3. Attorney Letter to Evaluator.
The parties’ attorney should write a letter to the evaluator with a copy to the attorney or party representing the other spouse, describing the current court orders (with copies of relevant pleadings), any relevant deadlines, such as court hearings, detailing relevant issues and questions that must be resolved by the evaluator, and persons who should be interviewed. Unless it is requested, the evaluator will often only see the parents and the child. Significant others and spouses should be evaluated. Sometimes the evaluator will interview extended family and friends. Teachers and therapists may be contacted. It might be necessary to request that the evaluator obtain school and medical records. Evaluators are sensitive to being “influenced,” so it is best for the attorney to stay away from argument. Assume you are dealing with a busy person who needs reminding as to what to do. Make it easy for them to review the file. Have a calendar marked out showing the current schedule and another one showing the schedule your client desires. The party who makes it easy for the evaluator is going to have an advantage.
4. Psychologically Prepare the Client.
A client must be psychologically prepared for the interviews with the evaluator. A client who is angry, fearful, or defensive is unlikely to make a good impression. On the other hand, a client who is overly prepped, artificial and insincere will not make a good impression either. It is good practice to go over possible questions in advance. It is not uncommon for people to have strong feelings about mental health professional based on bad personal experiences, the media, friends and so forth. These prejudices should be ferreted out and dealt with before the interview by the attorney or, in some cases, another therapist.
Use the time with the evaluator to best advantage. The client should be told that the interview is for information gathering and not for therapy. The evaluator is not there to give the client advice, understand them, see it their way or take sides. Everything they say can be used for and against them. Warn the client against being overly defensive. A common mistake is for the client to tell the evaluator about the faults of the other parent. The evaluator is likely to think that the client is more interested in the parent than being a good parent. The interview is a chance for the client to discuss the child and their relationship with the child. Also, the ideal parent would have a deep interest in the moral and ethical development of the child. Clients can find assistance in this area by reading books by authors such as Haim Ginott, Adele Faber & Elaine Maslish and Virginia Satir (The New Peoplemaking).
5. Reporting Requirements.
The evaluator, like other therapists, must report sexual abuse and domestic violence to Children’s Protective Services. The sessions are not confidential, and the evaluator could be subpoenaed to testify against either or both clients.
The evaluator will attempt to corroborate their impression of the parent with interviews of the other parent, third parties, such as other therapists, friends and through a home visit. A therapist must support his conclusions where possible with secondary sources.
7. Evaluation of the Child.
The interview of the child is particularly important to the outcome of the evaluation. It is important that the child be examined alone. If the child has been with one parent before the evaluation, the other parent should have some time with the child before the evaluation. Children can be influenced by the questions asked, so it important that you know what the child was asked in the evaluation. Therapists are trained to determine if a parent has prepared a child. Usually, they will not directly ask a young child who they want to live with. They may ask indirect questions such as, which parent would you feel comfortable with if you were traveling in a spaceship to the moon or who would you call if you felt scared.
8. Studying the Evaluator’s Report.
To properly evaluate the report, it is a good idea to examine the evaluator’s notes and the psychological test scores (if testing is used). Make sure the evaluator accurately described the interviews as well as the other information relied on. If the evaluator relied on a statement of one party that was not accurate, there should be adequate time to rebut the statement. If an important fact was left out, it should be pointed out to the evaluator. Examine the report for bias or prejudices. It may be useful to review the report with a trained psychologist or another evaluator.
9. Evaluating the Client.
You can get a good idea how your client will be perceived by the evaluator. Look for the following attitudes in your client:
(a) A well-adjusted person who does not play “helpless” and who does not blame others for their problems. He or she assumes responsibility for their own life. He or she does not give others false authority over him.
(b) Look for victim/persecutor complex in your client. They may start off seeing you or the evaluator as a rescuer and then convert them to the persecutor.
(c) Rate the client on a 1 to 10 scale as to the impression they will make on the evaluator.
(1) Good qualities to look for are:
(a) Honest, open, direct
(b) Pleasant, agreeable
(e) Concerned for others
(2) Bad qualities to look for.
(a) Whines, complains
(b) Secretive, devious, evasive
(c) Mean-spirited, argumentative
(d) Indifferent to others
(f) Selfish, egotistical
(h) Boastful, arrogant
(i) Angry, unhappy
(3) Body language can send signals of discomfort, which may be read as lack of truth in what they are saying, can include:
(a) Chewing their nails
(b) Biting their fists
(c) Pulling on their ears
(d) Cracking their knuckles
(e) Chewing on pen or pencil
(4) Behavioral traits and the messages they send.
(a) Talks too loud — trying to demonstrate or persuade.
(b) Talks too soft — trying to hide something, not telling the whole truth.
(c) Talks too fast — tricky, trying to put something over on you.
(d) Talks too slow — uncertain, doesn’t really know.
(e) Looks you in the eye — telling the truth
(f) Avoids eye contact — dishonest, evasive.
(g) Well-organized, self-assured people send the message of competence, which strengthens their credibility.
(h) Pleasant appearance, well-groomed, neat and clean clothes help create the impression of competence and honesty.
10. Preparation for the Evaluation.
(a) No alcohol or drugs prior to interviews.
(b) Have client be well-rested, if possible.
(c) Have a well-organized list of questions and concerns.
(d) Have them bring a well-organized file of custody-related orders and proposed calendar of current plan and proposed plan with copies for therapist.
(e) Be on time.
(f) Deal with anger at the court system, at therapists, at their children or at their spouse prior to the interview.
(g) Advise them not to concentrate on the faults of their spouse. Instruct them to focus on positive reasons for them to get custody. Faults should not be ignored, but it may be better strategy for the attorney to raise them in an introductory letter to the evaluator or in the pleadings, a copy of which had already been provided for the evaluator.
(h) Advise the client that they may be observed from the time they leave their car until the time they leave the evaluator’s office and are back in their car.
(i) Advise your client to tell the evaluator about specific instances and behaviors that demonstrate their parenting abilities. Conclusionary statements such as, “I do what is in the best interests of the child,” or “I love my child more than anything” are not usually compelling. Actions often speak louder than words.
11. Factors the Evaluator Looks for If a Custody Change is Requested.
(a) One of the adult parties is acting in a way which endangers or is directly injurious to the minor;
(b) The party having custody, or anticipated to have custody, is not currently or will not or cannot provide adequately for the minor’s physical or emotional needs;
(c) The minor is not in some way adjusting or developing adequately;
(d) The party not having custody appears able to provide care which will be significantly better than that being provided to the minor, although the current situation is minimally adequate; or
(e) The established plan of visitation is not in the minor’s best interest or is unfair to one or the other parent and may be modified without adversely affecting the child.
(f) The evaluator may also look at the parents’ inability to reach agreement regarding custody and visitation.
(g) The child with special emotional conflicts and/or physical limitations making special demands on each parent may require consideration in determining which parent can better meet the child’s best interests.
12. Tell Your Client What Questions Will be Asked.
(a) One evaluator describes the attitude of the evaluator as follows: Typically, a child custody evaluator must determine whether and how each parent meets the child’s physical, social and emotional needs. To the extent a parent knows what will be asked, his or her answers will be more thoughtful and to the point and, thus, more valuable to the process. This does not mean that an attorney should give a parent answers, but rather, a client should be armed with the questions to be considered and assisted in organizing responses which accurately reflect the true picture of child’s life.
(b) The client will be asked to compare and contrast his or her style of parenting to that of the other parent, including the amount and nature of time actually spent with the child, now and in the past. The client must articulate his or her usual methods of conflict resolution and discipline used with the child and be able to demonstrate an awareness and realistic appraisal of his or her personal strengths and weaknesses as a parent. It is important that the client project stability and emotional maturity to the investigator.
(c) The parent must be able to demonstrate how well he has tended the child’s physical needs through providing a good home that is safe, comfortable and age-appropriate for the child. He should detail the every day care of the child, as this provides a healthy basis from which the child can develop and grow. Parents must also be able to highlight to the evaluator attention given to the child’s hygiene, health care needs and diet.
(d) The client must be able to evidence knowledge and sensitivity to the unique, separate and individual needs of the child. This would include an awareness of the child’s likes and dislikes and an open and positive communication style between parent and child. Optimally, the parent should be a positive role model for the child who can encourage and help the child maintain positive interpersonal relationships. Some examples of this might be the child’s involvement in sports, youth groups or other age-appropriate personal enrichment activities. Also moral and ethical development of the child.
(e) The evaluator will attempt to corroborate their impression of the parent with interviews of the other parent, third parties, such as other therapists, friends and through a home visit. A therapist must support his conclusions where possible with secondary sources.
(f) The love, affection and emotional ties existing between the competing parties and the child;
(g) The capacity and disposition of the competing parties to give the child love, affection, and guidance in the educating and raising of the child in his or her religion or creed.
(h) Counsel client not to attempt to influence the children. The evaluator will ask the child what their parents have told them about the process in a way that will elicit from them whether the parents have attempted to tell the children what to say. An indication that the parent attempted to manipulate the child will be looked upon unfavorably.
(i) It is difficult and unethical to deceive or mislead the evaluator. It is virtually impossible to make up for years of negligent parenting by a few parenting classes and some all night study. If the client has been a part time parent or if have been a poor parent, probably the best approach is to advise them to responsibility for their flaws and demonstrate to the evaluator their efforts to improve their parenting skills or, better yet, advise them not to attempt to change custody. The evaluator knows that it often takes a major event like divorce for people to change their lifestyle.
13. When You Have an Adverse Evaluation
Although judges will follow a child custody evaluation most of the time, the recommendation of the evaluator can be overturned. The report should be reviewed by another forensic psychologist. The second evaluator may recommend that further psychological testing be done to confirm that the results were accurate in prior testing. If the first evaluator relied on comments of the children involved or on collaterals, they may be interviewed a second time.
Custody evaluations are complicated and the time pressures to produce a report are often extreme. Mistakes do happen because of the nature of the process. Request that the evaluator turns over his notes in order to compare them to the final report. The notes are helpful in determining what factors the evaluator used in making his recommendation.
Examine the expert on the methods he used in interviewing the children. A therapist may start or end a session by asking a child to “make three wishes” or to “pick the person who you would like to be with you on a desert island.” Of course, the answer to this question may depend on many factors such as who the child was with recently, which parent disciplined the children, or which parent is in favor at that moment. Did the evaluator do a home visit? What were the circumstances surrounding the home visit?
Review articles the expert has written and determine if the evaluator has followed his own advice. On occasion, an expert will have a personal philosophy which impacts their credibility. In one case, the psychiatrist was a strict Freudian – a point of view that the judge did not buy. In another matter, the expert had a large tattoo on his arm. This resulted in some interesting cross-examination on the meaning of the tattoo which successfully impeached the expert.
An excellent starting place for learning how to attack the report are the books Coping with Psychiatric and Psychological Testimony, Jay Ziskin, PhD, LL.B., Law and Psychology Press, 1975 and Interstate Child Custody Litigation, Tools, Techniques, and Strategies, Mark S. Guralnick, Section of Family Law, American Bar Association, 1993.
D. Structuring the Information to be Presented to the Court.
Although custody cases are not supposed to be “reiflerized”, often time constraints require the courts to accept declarations. Be sure that all important information to be provided to the court is submitted by way of declaration. However do not assume the case will be “reiflerized”, and have your witnesses available (on call) in the event they need to testify.
Prepare your client for his/her testimony. Do not repeat what is in your client’s declaration if the declaration was admitted into evidence and you know the court has read it. Counsel your client on the appropriate demeanor and dress for court. Practice with your client so that your client is comfortable responding in a direct, non-defensive manner.
Have all necessary documentation subpoenaed to court with the accompanying affidavits of the custodian of records.
Be careful in your selection of witnesses. Chose witnesses which have seen the interaction between your client and the child on frequent and recent occasions. Avoid being repetitious.
Attempt to have the important witnesses go first. Judges are extremely time conscious. Call experts, doctors, teachers are independent witnesses first. Remember that your client is available for you to call at any time, whereas these other witnesses may not be.
E. Evidentiary Considerations — Making Your Case
Any expert appointed by the court under Evidence Code § 730 may be called and examined by the court or by any party to the action. Evidence Code § 732. Evidence Code § 733 states that neither party is precluded from presenting other expert evidence, although in custody proceedings the credible witness has seen both parties.
A mental examination of a party may be ordered when their mental condition is in dispute pursuant to Code of Civil Procedure § 2032.
The psychotherapist-patient privilege applied to communications between a patient and psychotherapist. Pursuant to Evidence Code § 1010 the privilege applies to licensed psychiatrists, psychologists, clinical social workers, registered nurses with master’s degrees in psychiatric mental health nursing, school psychologists, and marriage and family counselors, mental health treatment or counseling services, and marriage, family, and child counseling corporations, along with therapists employed by these corporations.
If the custody of the child is in dispute, the mental condition of each parent is relevant to his or her ability to act as a proper custodian. Most courts will require a strong finding that the mental condition of the parties is the principal issue in the case and will not waive the patient-therapist privilege. In Simek v. Superior Court (1981) 117 Cal. App. 3d 169 it was held that a party seeking visitation does not automatically “tender” the mental health issue. Koshman v. Superior Court (1980) 111 Cal. App. 3d 294 held that the privilege is not waived in a contested custody case unless the patient-parent raises the issue of his or her own mental health. One party cannot force the other party to waive the privilege by alleging that they are unfit as a parent or mentally unstable.
In People v Superior Court (Broderick) (1991) 231 Cal. App. 3d 584 it was held that a trial court must make an independent inquiry of every mental health professional from whom records are sought to determine whether a defendant has waived the psychotherapist-patient privilege as to that professional.
Evidence Code § 703.5 provides that arbitrators, mediators and persons presiding at judicial or quasi-judicial proceedings may not be called to testify regarding any statement, conduct, decision, or ruling occurring at or in conjunction with the proceeding unless that conduct could give rise to criminal or civil contempt, constitute a crime, etc.
2. Hearsay Rule
An excellent treatise on the Use of Hearsay in Child-Custody Cases is set forth in California Family Law Practice, Adams and Sevitch, (Tenth Edition, 1995), at T.90. See also California Family Law Trial Guide, Denner – Rothscild – Johnson, (Matthew Bender, 1995) at § 20.60.
California Family Law Trial Guide, Denner – Rothschild – Johnson, (Matthew Bender, 1995) at § 20.60 provides sample questions and chapters a chapter on how to introduce evidence (§ 20.20).
(a) Documentary Evidence — Photos, Video, and Tape Recordings. The use of documentary evidence in custody cases is described in Interstate Child Custody Litigation: Tools, Techniques, and Strategies by Mark S. Guralnick, (American Bar Association, 1993) The books’ title is deceptive as the book describes in detail how to prepare a custody case, whether intrastate or interstate. The chapter on demonstrative evidence is excellent in specifically describing the use of photographs and slides, videotapes and film reenactments, audio tape recordings, posters and enlargements, medical, orthopedic, prosthetic and pharmaceutical evidence, toys and personal belongings, personal writings, treasures, and collections, unique objects, and symbolic items.
The process of entering these items into evidence is described in the Family Law Trial Guide, Denner – Rothschild – Johnson, (Matthew Bender, 1995). In the chapter entitled Selected Evidence Issues in Marital Dissolution Proceedings (Division III, Unit 20), by Kathryn Kirkland, there is a chart at § 20.14, on Evidence Commonly Used to Prove Family Law Issues and at § 20.15 a Documentary Evidence Issue checklist which together describe what evidence is used to prove a particular issue and the evidentiary problems associated with the proof of those issues. The procedure for introducing documentary evidence is set forth at § 20.20
(b) Discovery — Depositions, Investigators and Documents.
Taking the depositions of the parties in a custody proceeding is the best way of determining the strengths and weaknesses of the other sides case. It may be useful to take the depositions of experts and other witnesses, although this is expensive and not usually done. It would be very unusual to take the deposition of a child in a case. In chapter 9 of Interstate Child Custody Litigation is a useful outline for questioning both parties and witnesses. There are sample questions for deposing the parties, the child, family members, friends, teachers, babysitters, and custody experts. There are also good lists of questions in Child Custody Evaluations: A Practical Guide, Diane Skafte, (Sage Publications, 1985).
Direct and Cross-Examination of Witnesses.
A good basic guide can found in Chapter 31 of Custody and Visitation, California Family Law Trial Guide (Nordin F. Blacker, chapter author). The same questions used in depositions can be adapted for trial.
Preparing for Trial.
Chapter 31 of Custody and Visitation, California Family Law Trial Guide (Nordin F. Blacker, chapter author)
F. In Camera Attorney Interviews of Children — When or Why Not.
Evidence Code §700 provides that “every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify as to any manner”.
Family Code §3042 provides “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody”.
Evidence Code §765, provides for special care to be given to protect a child-witness from harassment, embarrassment or from being asked questions that the child does not understand or are inappropriate for the child’s age.
If the trial court refuses to allow a child’s testimony, the judge must state the reasons if requested to do so by one of the parties. People v. Ford (1964) 60 Cal.2d 772, 36 Cal. Rptr. 620.
Family Code §§7890 et. seq. which are applicable in proceedings to free a minor from parental custody and control provides guidelines for allowing the child to testify in chambers outside of the presence of the child’s parents.
Although the above statutes provide the right to have a child testify, the fact remains that many judicial officers refuse to have a child testify, whether on the stand or in chambers. You must weigh the potential that the judge will determine that your client is not “child-centered” if you insist that the child testify. Find out in advance whether the Judge ever interviews a child and in what circumstances. There is no sense in raising the ire of the Judge if there is no way the child is going to be allowed to testify. Beware of having the judge interview the child in chambers without your being present. You will have no way to cross-examine the child. You may want to consider providing the Judge with written questions for the child. Obviously, one way for the Judge to avoid questioning the minor is to have an evaluation, wherein the evaluator interviews the child.