Mental
health professionals can be invited to
contribute specialized knowledge to family
litigation in the role of expert.
An expert
is an impartial professional with no prior
involvement with the parties to the particular
matter. By contrast, a professional who is or
has been involved with one or more family
members (e.g., as child therapist,
co-parenting counselor) may have tremendous
expertise, but would participate in litigation
as a fact witness.
A qualified mental health professional can
serve as one of two types of experts.
(1) A testifying or testamentary expert will
be called to the stand to educate the court in
matters relevant to the particular litigation.
This can be a purely abstract lesson in
psychology (e.g., what is healthy child
development? What is enmeshment? What is
alienation?). It can include answers to
hypotheticals (e.g., "If a 6-year-old wets the
bed, what could that mean?"). It could offer
an opinion based on a review of specific
documents
"... the testifying expert
or reviewer can consult with the
attorney to facilitate the efficient
delivery of the expert’s own direct
testimony, but should be cautious in
providing more extensive case
consultation on trial strategy or for
the testifying reviewer expert to
participate in a litigation team with
other experts."
Austin,
W. G. (2016). Child Custody
Evaluation and Relocation: Part
III ot III:
Forensic
Consultation Services and Common
Errors by Evaluators. American
Journal of Family Law,
30(1), 1-14.
Please note: Serving
as testifying expert, Dr. Garber will not
interview, assess, or observe any individual
including the hiring litigant. The
testifying expert works in the employ of
counsel to provide an impartial,
child-centered and systemically-informed
opinion. The testifying expert's job is to
review documentation, infer a fact pattern,
and opine based on that fact pattern.
Although the artificial boundary separating
testifying expert from litigant may feel
awkward , it is necessary to protect
privilege, to avoid being asked on
cross-examination to opine about the
litigant, and to minimize the risk of bias
associated with any such interaction.
(2) A non-testifying expert
or "trial consultant" will not be called
to testify. Instead, this mental health
professional works with counsel and one litigant
to prepare for examination and
cross-examination. A non-testifying expert can
meet with parties, review documentation, and
critique other professionals' work. Read more
here
"Retained experts may limit their
services (by agreement with the
retaining attorney) to strictly
trial consultation and not as a
testifying expert. The trial
consultant expert may assist with the
development of trial strategy in
developing a theory of the case;
assist in the preparation of areas of
inquiry and questions for direct and
cross-examination of experts; educate
the attorney about relevant
professional literature and research;
and assist in the acquisition of
relevant documents. The trial
consultant expert often would be
present in the courtroom during the
trial to advise the family law trial
attorney."
Austin,
W. G. (2016). Child Custody
Evaluation and Relocation: Part III
ot III:
Forensic Consultation Services
and Common Errors by Evaluators. American Journal of Family Law,
30(1), 1-14.
"Attorneys can ask that the
reviewer function as a forensic
consultant. In the consultant role,
the reviewer often can operate
completely behind the scenes. When
this is done, the review itself is
ordinarily protected from disclosure
by work product privilege. The trial
consultant can prepare questions
for cross examination or
otherwise assist without even being
named. In this role, the reviewer
remains as anonymous as any staff
member in the attorney’s office would
be. The consultant can also assist at
trial, in which case the expert’s
identity becomes known, but the review
and other writings remain protected
from disclosure."
Martindale,
D. A. (2007). Forensic
consultation in litigated
custody disputes. Journal of
Psychiatry and Law, 35(3),
281-298.
Dr. Garber brings almost four
decades of experience as a psychologist
providing therapies and evaluations to
children and families across the full spectrum
of experience.
How
much does this service cost?
Dr. Garber's work
as either a testifying or non-testifying
expert is charged by the hour inclusive of all
activities, e.g., reviewing documents,
conferring with counsel, travel.
Dr. Garber will specify the per hour charge
and the necessary initial retainer in an
initial Statement of Understanding delivered
upon request. Total hours (and thereby costs)
will vary based on the nature of the work such
that working as a testifying expert educating
the court without document review is likely to
be less expensive than working as a
non-testifying expert working with counsel to
prepare for trial.
As
an expert, who does Dr. Garber work for?
Dr. Garber is
employed by a lawyer in this role. The lawyer
represents a litigating party (parent).
Nevertheless, Dr. Garber retains the
discretion to work in the best interests of
the children.
In the interest of retaining impartiality and
privilege, as a testifying expert Dr. Garber
strongly prefers that payment is delivered
from retaining counsel's office rather than
from that lawyer's client.
I
want to learn more.
Read more here:
Lee, S. M.,
& Nachlis, L. S. (2011). Consulting
with attorneys: An alternative hybrid
model. Journal of Child Custody:
Research, Issues, and Practices, 8(1-2),
84-102.
Austin, W. G.,
Kirkpatrick, H. D. and Flens, J. R.
(2011), The emerging forensic role for
work product review and case analysis in
child access and parenting plan
disputes. Family Court Review, 49:
737–749.
Association of
Family and Conciliation Courts and Child
Custody Consultant Task Force (2011),
Mental health consultants and child
custody evaluations: A Discussion paper.
Family Court Review, 49: 723–736.
Bow, J. N.,
Gottlieb, M. C., Gould-Saltman, Hon. D.
J. and Hendershot, L. (2011). Partners
in the process: How attorneys prepare
their clients for custody evaluations
and litigation.Family Court Review, 49:
750–759.
Mermelstein, H.,
Rosen, J. A. and Reinach Wolf, C.
(2016), Best Interests of the Special
Needs Child: Mandating Consideration of
the Child's Mental Health. Family Court
Review, 54: 68–80.
