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Expert Opinion in Family Law

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What is expert opinion?
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
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"... 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 Read more

"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.

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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.

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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.

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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.

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