Court Ordered Forensic Evaluations and Existing Autism Diagnosis

At one point in every custody battle, the judge will order forensic evaluations on the parents and all children from the case.  When a child has a diagnosis of autism, the parents enter the court system with an existing diagnosis from a doctor that they went to in the past.  Parents most likely have been feuding about the needs of the child, and usually the father will dispute everything the mother wants as far as therapeutic services, vitamins, special diets, and medications.

The judges will disregard the autism diagnosis and order forensics on everybody. If the warring parents already have the custody order temporarily awarded to the father, then the father will have to take the child to the evaluations.  Small surprise if the evaluator report “nothing wrong with the child” to the courts.

The autism diagnosis is based heavily on early childhood development. If daddy was out working all the time will little jimmy was home and severely delayed with many developmental milestones, do you think daddy will tell the forensic evaluator? Does daddy even remember how Jimmy used to stim with hand flapping at 11 months but then switched to vocal stims at 14 months? I bet daddy won’t tell the evaluator any of that.

And that’s how custody cases get settled. He said, she said. What an outrage.

NY Times – For Arbiters in Custody Battles, Wide Power and Little Scrutiny
Published: May 23, 2004

When warring parents head to court to fight over child custody in New York, their lawyers often let them in on a little secret: The most powerful person in the process is not the judge. It is not the other parent, not one of the lawyers, not even a child.

No, the most important person in determining who gets custody, and on what terms, is frequently a court-appointed forensic evaluator. Forensics, as they are often called, can be psychiatrists, psychologists or social workers; they interview the families and usually make detailed recommendations to judges, right down to who gets the children on Wednesdays and alternate weekends.

And the judges usually go along.

Forensic reports, which the parents pay for, can cost as much as $40,000 or even more. There are no standards for who can be an evaluator or what should go into an assessment. The court system does not track who gets these lucrative appointments, much less whether evaluators tend to favor fathers or mothers or joint custody.

Some lawyers and parents suspect that cronyism plays a big role in some appointments, but given the secrecy surrounding matrimonial cases, that is hard to prove, or disprove. Others say there is nowhere to lodge complaints about mistreatment. And many — including some forensics — question whether there is any scientific basis to justify the evaluators’ recommendations.

In Suffolk County, judges repeatedly appointed a psychologist who was not licensed to practice in New York State. In Manhattan, an evaluator remained on a case even though there was evidence that he had had business dealings with one spouse’s lawyer. In Westchester County, an expert charged parents $57,000 for a report that the judge found extremely biased toward the father.

Though they have been around for years, court-appointed forensics have become increasingly commonplace — and controversial — in New York, which may be the high-conflict custody capital of the nation. But similar debates about custody evaluators are going on across the country, experts say, as divorce rates continue to rise and courts try to cope with the needs of children caught up in a contentious process.

“It’s boiling over everywhere,” said Peter Salem, executive director of the Association of Family and Conciliation Courts, based in Madison, Wis.

In Arizona, the governor recently signed a law changing the state’s process for investigating complaints about psychologists, in part because of controversy over forensic evaluations. In Louisiana, a committee of the state board governing social workers is considering creating standards for evaluations.

And over the last few years, California has adopted a series of court rules that require training for forensics, set standards for evaluations and provide mechanisms for filing grievances against evaluators, said Philip M. Stahl, a psychologist and frequent lecturer on custody evaluations. “It’s the only state where the rules are very specific,” he said.

In New York, forensics’ roles are being debated at judicial conferences, psychiatric conventions and impromptu meetings of disgruntled parents. Even the court system has decided to take another look at them, through a commission appointed in February by the state’s chief judge.

Forensics “have really become arbiters of what happens in a case,” Raoul L. Felder, the divorce lawyer, said disapprovingly. “I just think somehow they’ve seeped into the judicial process.”

Some people think that is as it should be. “With some exceptions, I didn’t try a contested custody case without a forensic assessment,” said Philip C. Segal, a former Family Court judge now in private practice. “They were extremely helpful, even critical.”

Custody cases are difficult and emotionally fraught, he said, adding that judges need help “analyzing the family dynamics, analyzing the parents’ respective abilities.” Judges must decide custody cases based on the best interest of the child in question, and they can appoint a “neutral expert” whenever they think it would be helpful in making that decision.
Some judges ask the parties’ lawyers to agree on a forensic or to provide a list of candidates; others simply name an evaluator. Some judges have very specific questions they want addressed; others just call for an evaluation. Many, though not all, want detailed recommendations.

The American Psychological Association’s guidelines state that while evaluators may determine whether either parent has severe psychological problems, that is not their main goal. Rather, evaluators are supposed to judge the parties’ “parenting capacity” and how that fits the psychological needs of the child.

Forensics themselves do not agree on how to conduct a proper examination. Some order psychological tests, while others avoid them; some interview baby sitters and teachers, while others do not.

In the end, the evaluator gives the court a report that usually makes detailed recommendations about custody arrangements. The parents are not generally given copies; in some cases, they are not even allowed to read the reports.

At that point, the parents usually settle, “which we would much prefer, for the parties’ sake,” said Justice Jacqueline W. Silbermann, the administrative judge for matrimonial matters in New York State. The reports’ usefulness in encouraging settlements is one reason judges order them, she said.

But what pleases the judges sticks in the craw of some litigants, who say they feel bludgeoned into settling by a report that does not favor them, even when they believe that the report is deeply flawed. Some lawyers contend that the evaluations actually discourage settlements in certain cases because the favored party feels no need to compromise.

The only way to challenge a forensic report is to go through a full trial and then cross-examine the evaluator; parties can also hire their own experts to critique the court-appointed forensic, but generally cannot have the family evaluated by someone else.

In the meantime, judges are reading evaluators’ reports and making decisions based on them, with no way to know whether the observations and conclusions are correct, said William S. Beslow, a prominent matrimonial lawyer in Manhattan.

“In eight years, I have not participated in a case with a forensic report that was not substantially erroneous in one of its major conclusions,” Mr. Beslow said. “And some are so wrong that they have disastrous consequences for families.”

Underlying all the concerns about forensic evaluators is the question of whether they are offering the court scientific expertise or unsubstantiated opinions.

Jeffrey P. Wittmann, a forensic who has done hundreds of evaluations, says that his colleagues have been giving the courts both, and that they should stick to the scientific evidence. Dr. Wittmann, co-director of the Center for Forensic Psychology in Albany, said he stopped making specific recommendations to judges six years ago, and has urged colleagues to do the same.

The reason, he said, is that forensics do not really know, with any degree of certainty, what is in a child’s best interest. Little scientific research on the subject exists.

Forensics do provide courts with useful information, he said, but drawing conclusions about the child’s best interest and making recommendations on custody and on visiting is inappropriate, even unethical. “We have become like mini-judges,” he added, “and it’s a big mistake.”

Among psychiatrists and psychologists, Dr. Wittmann’s argument is far from the most extreme. William O’Donohue, a psychology professor at the University of Nevada, Reno, is calling for a moratorium on forensic evaluations until more research is done.

“Psychologists don’t have the knowledge to do what they attempt to do when they do custody evaluations,” he said.

Many custody decisions, he said, involve not scientific findings, but competing values, like a father’s wish that his child excel in sports versus the mother’s emphasis on studying.

While mental health experts have been debating these issues for several years, the legal world has been slower to recognize them, at least in New York.

Enter Timothy M. Tippins, an Albany lawyer who increasingly specializes in cross-examining forensic experts. For almost a year, Mr. Tippins has been writing articles in The New York Law Journal questioning the role and expertise of forensic evaluators in custody cases. He has teamed up with Dr. Wittmann to write a paper titled “Empirical and Ethical Problems With Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance.”

Among its recommendations is a call for judges to “begin to help the psychology discipline rein in itself” by not demanding or accepting specific custody plans.

In March and April, the two presented their arguments to conferences of New York State judges; later this year, they will speak to judges at the state’s appellate level.

Some judges have welcomed his arguments, Mr. Tippins said. “I think they had on their antennae that something was amiss with these reports.”

In part as a response to Mr. Tippins, Dr. Alex Weintrob organized a symposium on the scientific basis of expert testimony in matrimonial disputes at the American Psychiatric Association’s annual meeting this month in Manhattan.

Dr. Weintrob, a well-known child psychiatrist who does evaluations, said later that “there is more science than some people give us credit for.” On the other hand, he added, “it is important that we be aware of our limitations,” citing as an example the lack of follow-up studies to see if forensics’ predictions worked out. “We all know it and are a little embarrassed by it.”

Even proponents of forensic evaluations are troubled by the secrecy that envelops the business, and the large sums of money that change hands, by order of the court.

“It’s an industry, and it’s unregulated, and it affects precious family rights,” said Andrew I. Schepard, director of the Center for Children, Families and the Law at Hofstra University. “It would be lots better if this process were more transparent.”

The secrecy alone raises questions in the minds of some parents. One woman, a Manhattan financial analyst who spoke on the condition that her name not be used because her court case is continuing, said she had heard from other parents that the evaluator in her case had a history of recommending that custody go to fathers. But, she complained, there is no way to know for sure.

In Kaye v. Kaye, an extremely bitter divorce case in Manhattan, the mother discovered that her court-appointed forensic had participated in a business venture with four other people involved in her case, including her ex-husband’s lawyer.

This gave her grave doubts about how neutral he truly was, she said, speaking on the condition that her first name not appear in print. Judges are required to disclose their ties, she said, “and the same should be true of neutral officers of the court.”

Justice Judith J. Gische denied the woman’s request for a mistrial, ruling that the business — a limited partnership with a divorce-related Web site called, now defunct — was a for-profit educational venture, and that the lawyers, forensics and others involved were not “in business” together. An appeal of that decision is pending.

But the conflict-of-interest allegations about SoftSplit, which were reported by The New York Post last year, are still stirring up such hard feelings among lawyers and forensics that Donald Frank, the lawyer for the mother, refused to discuss the case.

Few parents are willing to talk publicly about their experiences for fear of seeing painful family matters aired in the press, or of being dragged by into court by the other parent. They also say they are often dismissed as disgruntled litigants who are angry that the evaluator did not favor them (which, of course, they often are).

The American Psychological Association’s ethics committee reports that a rising percentage of the complaints it receives involve forensic evaluations. And Dr. Spencer Eth, a member of the ethics committee of the American Psychiatric Association, said local branches of his group also investigate many complaints about forensic evaluations. While such complaints seldom result in a psychiatrist’s being suspended or removed from the association, he said, doctors are sometimes reprimanded or educated about the proper way to conduct evaluations.

The association takes on this role in part, he said, because state licensing boards tend to be ill-equipped to deal with problems that crop up in psychiatric practices, including some that are almost etiquette issues: a doctor’s rudeness, for example, or his failure to return telephone calls.

New York’s court system does not have a formal mechanism for receiving complaints about forensics, and because they are officers of the court, they cannot be sued for malpractice.

The rules governing matrimonial matters are being re-examined by a commission appointed by the state’s chief judge, Judith S. Kaye.

The commission will examine the role and use of forensic examiners, said Justice Sondra Miller, the appellate division judge who is leading the group. After holding public hearings, she said, it will make recommendations to Judge Kaye, probably in about a year.

In the meantime, however, some lawyers say they believe that judges are becoming more skeptical about forensic reports, and may use them a little less. One such lawyer is Norman M. Sheresky, who represented a mother who prevailed in a Manhattan court despite an evaluator’s recommendation in favor of the father. The judge tossed out the report’s findings as biased, he said.

“I think that will happen more and more,” Mr. Sheresky said. “I think the judges are getting wise.”

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3 Responses to Court Ordered Forensic Evaluations and Existing Autism Diagnosis

  1. judith englard says:

    Reading this blog, I was overcome with emotion so strong, that I can not describe it without tears.
    It is TRUE! Clinicians need to be hyper-vigilant after an abused woman leaves her spouse, because that’s when the revenge/ retaliation sets in. The abuser is in withdrawal with no punching bag to blame for his/ her misery so he revs up his/ her abuse.

    Many abusers use the ACS system to rack up brownie points. They can call in an abuse case anonymously against their spouse, and even if it is completely falsified, it must be taken seriously. The first one to accuse is considered the non guilty party. I have a friend with 14 concurrent ACS cases that are open. Every time she doesn’t answer the phone for her ex, he calls Acs , AND SAYS HE FEARS FOR THE KIDS SAFTEY since the Mom is not home, because she is not answering the phone. CONTROL and ABUSE are the hallmark of an abusive relashionship. The strong arm of the law is another tool the abusers harness to control. Since ACS is anonymous, NO CONSEQUENCES FOR FALSE REPORTING ARE DOLED OUT TO THE ABUSER!!!

    I agree wholeheartedly with this posting. Courts and clinicians with limited or NO knowledge of the child’s emotional state or situation have ABSOLUTE POWER TO MISINTERPRET and ruin childrens lives. I am a child of divorce and have been through the courts. In addition and I am a single mom. My ex abused street and prescription drugs. I left for my family’s safety.

    I don’t know who first said this, but it is so true: “The road to hell is paved with good intentions”. My mom like all those with “good intentions” called ACS presuming that they would test my ex and take away all visitation from him. INSTEAD ACS child services arrived with a police escort to my home at 11 pm one evening. They tested me for drugs AND INSPECTED MY HOME.They asked my children sexually inappropriate questions at the age of 3, 5, and 7 and woke them up from sleep to inspect them for abuse. The emotional trauma on a child inflicted by such an event is indescribable. They arrived at random hours and instilled fear in my children’s hearts. They were afraid of being taken away if they said the wrong comment to the wrong person. I felt like I was living in RUSSIA under the KGB.

    They informed my childrens’ school that I was under investigation. I eventually had to change my childrens’ school, for the administration started looking with a critical eye at every move I made. In fact the school social worker labeled my childs’ dyslexia, and the fact that she did not read simple words in UPK as neglect on my part. When my child was asked Does your mom do HW with you? She was terrified to say yes and look “stupid”, like she doesn’t know her work.Therefore, she said “no, my Mom never does HW with me”. The well intentioned social worker actually called ACS on me for not doing HW with a 5 year old! The accusation was neglect to do HW and possible further neglect. Needless to say, since everything was unfounded the charges were dropped. The of HELL OF WAITING until it was dropped can not be adequately described.

    In the world of child welfare, YOU ARE NOT GIVEN ANY RIGHTS, you are presumed GUILTY UNTILL PROVEN INNOCENT! The sick thing is the system abuses while protecting the true abusers.

    ACS did not test my drug addicted husband, because I am the caretaker of the children, and he “only” has visitation. I am alone for 8 years. I purposely am staying separated and not seeking divorce, for I fear the emotional damage the court system will wreck on my children’s psyche.

    KEEP THE FAITH! Please!
    Your children have you as their ONLY source of sanity in all the insanity and accusations swirling
    around them.

    With all this going on, my children still are top of their class friendly individuals who excel.
    They were damaged by the system, yet remain survivors.
    Our faith is strong. We try. We cry. We choose life.

    HOPE, Belief: Keep on at it.

    Some of you may be familiar with this quote referring to those who cling to hope while following the righteous path:
    “Eitz chaim he lamachazikim boh” loosely translated “IT IS A TREE OF LIFE FOR ALL THOSE WHO GRIP ON TO IT”

    • Karma Maya Rohmer says:

      In tears all I can say is Thank You for what you said my 2 boys are in similar situation and I cannot describe the grief we feel, We try, We cry n cry… Its so hard to stay positive but for my boys and my rights as human, we shall fight on…

  2. Justice 4 Kids says:

    The government is out to use children as pawns to make a profit. For every child that is declared a victim of child abuse, the US federal government will pay a local government agency money. There is no effective mechanism for oversight. Local governments have a very strong incentive to lie about parents, steal their children, and rake in the profits from doing so. Unless the US federal government steps in and puts in severe penalties (prison time for CPS social workers who perjure, restitution to be paid for by local governments, Federal takeover of local government agencies that violate the laws) and investigative mechanisms for curbing these abuses, there is no way for parents to be safe with their children anywhere in the United States. All it takes to lose your kids is a malicious person lying about you well enough to convince the typically abusive CPS social worker who hears the lies. This is often an ex, but sometimes is another party such as a neighbor. Such people manipulate the government to attack you by using your children as pawns.

    Parents who have faced these lies and abuses sometimes think it is a gender issue. Although there is undeniably a lot of sexism, usually the more serious problem is systematic violations of the law by the CPS social workers, police, and courts. The appearance of sexism gets moms and dads fighting and distracts from the more deep-seated problems.

    Psychological evaluations are a big part of this problem. Even though this article talks about California having many rules, the fact is that these rules are routinely violated and the courts aid and abet in the violations.

    Jury trials requiring criminal evidentiary standards and with the state being forced to provide competent legal counsel to parents and children must be required. There is too much power given to one person to determine the future of an entire family in today’s system.

    Today in the United States, a single person (typically a family law judge or commissioner or a juvenile court judge) has the power to ban children from seeing a parent for months, years, or even until adulthood without any substantive evidence or due process. “Evidence” often consists of perjury by CPS social workers, police, and psychologists who have a self-interested profit-making agenda or simply endeavor to cover up after their mistakes by scapegoating the victimized parent.

    In today’s system, children are often taken from parents who either did not do anything wrong or could have been helped to improve substantially and are then handed over to foster care people who abuse them far worse. This is done even when there are other relatives such as grandparents who try very hard to get their grandchildren back into the family. And what often happens is that CPS then retaliates against the grandparents for “interfering” even when there has been a clearly horrible outcome such as the death of a child in a foster care home.

    The story of murdered little Serenity Gandara who died due to Bakersfield, California CPS social workers and the abuse of a family by the government shows just how sick and twisted a nation the United States is.

    Serenity Gandara’s Grandmother Speaks Out Against CPS and Foster Parent Abuses, Advocates Grandparents’ Rights

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