For
counsel, lawyers, attorneys, solicitors
and pro se litigants
If the idea of
lawyer-psychologist collaboration
in family law matters is new to you, start
here
Expert consultation
Lawyers
know the law, litigation strategy, and
courthouse procedure, but seldom know
more about child development and
family dynamics than what they observe
in their own homes after work. You
wouldn't argue a complex property
settlement without consulting forensic
accountants, tax and inheritance
experts. You wouldn't argue torts
without first soliciting expert
medical opinions. Why then would you
enter a courtroom on behalf of an
aggrieved parent without the benefit
of working with an expert consultant
in childhood, families and parenting?
Working
in family law means abandoning the
medical model of individual diagnosis
in favor of an ecological or systemic
understanding of relationships. Dr.
Garber's 2022 American Bar Association
publication with co-authors Dana
Prescott, J.D., Ph.D., and Chris
Mulcahy, Ph.D., is the field guide to
high conflict family dynamics that
every professional needs to read.
Family Law Consulting, PLLC and Dr. Ben Garber
can provide that expertise.
Family
Law Consulting, PLLC will provide you with
research-based, Daubert- and Frye-qualified
empirical insights into child development and
special needs parenting, the dynamics of the
high conflict family, and a comprehensive
knowledge of divorce and custody litigation.
This is precisely the expertise recommended by
the American Bar Association's Model Standards
of Practice for Lawyers Involved in Child
Custody Matters:
"The
lawyer must consider the child’s
individual needs.
The child’s various needs and
interests may be in conflict
and must be weighed against each
other.
The child’s developmental level,
including his or her sense of time,
is relevant to an assessment of
needs.
The lawyer may seek the advice and
consultation of experts
and other knowledgeable people
in determining and weighing such
needs and interests"
American
Bar Association (read more here)
Several examples of successful
consultation to divorce and post-divorce
litigation are provided below
Read more:
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.
Child development
Height and
weight are each singular, quantifiable and
obvious measures. It's easy to line up a bunch
of children from tallest to shortest. But
development and maturity are none of these,
and yet the law depends on them.
Family
Law Consulting PLLC can help you to define
development and maturity, determine each
specific child's developmental status, and
assure that the GAL, evaluators, and the court
recognize and respond to each child's unique
developmental needs.
How we
determine the best future schedule of child
care -the parenting plan- depends in part on
how we understand the child's present needs
and likely future course of development. Far
too many parenting plans fail to recognize
that the schedule of care that works today,
may not work next year, thereby condemning the
parents to engage in revolving-door
litigation. Parenting plans must, instead,
anticipate and adjust to the child's
expectable and growing needs and abilities.
Dr.
Garber's "Roadmap to the Parenting
Plan Worksheet"
can help you step-by-step to create a
parenting plan suited to each family's
unique strengths
that grows along with the child.
A "mature minor"? International
treaties, many nations' laws and many
jurisdictions within the United States grant
the "mature minor" the privilege of being
heard in matters concerning his or her future
welfare. For example, the Association for
Family and Conciliation Courts has taken the
position that,
“Evaluators
shall consider the stated wishes and
concerns
of each child as these relate to the
allocation of
parental rights and responsibilities
if the child is of sufficient
developmental maturity
to independently express informed
views.”
Read more here
Unfortunately,
the concept of the "mature minor" is never
defined either in psychology or the law. How
might a child's maturity be defined and
assessed? How should that child's voice be
solicited? What weight should it be given
among the UMDA or jurisdiction-specific
criteria? These are among the many questions
that Family Law Consulting PLLC routinely
helps parents, counsel, guardians,
evaluators and the courts address.
Find additional resources here:
United Nations
Convention on the Rights of the Child
United States’ Uniform
Marriage and Divorce Act (UMDA)
Alienation and related systemic
confounds
Once upon
a time, custody was determined exclusively
based on the parent's gender. There was a time
when children were considered the father's
property like the cows and the barn. Later,
children were presumed to remain in their
mother's care at least through their "tender
years."
The
twentieth century taught us to look at the
"fit" between each parent and child.
Abandoning generic, gender-based heuristics
opened the door for consideration of each
family's unique needs and the concept of the
custody evaluation. Then, in the 1970s and
80s, we began to recognize that the quality of
a parent-child relationship could be corrupted
by pressures outside of the relationship
itself. One of these "systemic confounds" is
commonly known as parental alienation.
Dr. Garber is a nationally recognized
expert in parental alienation and
related systemic confounds. He has
consulted and testified and taught
professional audiences around the
world for more than fifteen years how
best to understand and respond to
these dynamics. He has been
instrumental is determining that
alienation does not constitute a
"syndrome" and in recognizing that it
seldom occurs alone.
Garber, B. D.
(2011). Parental alienation and the
dynamics of the enmeshed parent–child
dyad: Adultification, parentification,
and infantilization.FamilyCourt Review,49(2),
322-335.
Garber,
B.D. (2007). Conceptualizing
visitation resistance and refusal in
the context of parental conflict,
separation and divorce. Family Court
Review, (4)1, 588-599.
Garber,
B.D. (2019). Sherlock Holmes and the
case of resist/refuse dynamics:
Confirmatory bias and abductive
inference in family law. Family Court
Review, 58 (2), 386-402
Garber, B.D.
(2004). Parental alienation in light of
attachment theory: Consideration of the
broader implications for child
development, clinical practice and
forensic process. Journal of Child
Custody, 1(4), 49-76
Garber,
B.D. and Prescott, D.E. (2020). On the
value of Teddy bears and Barbie dolls:
The place of children's transitional
objects in family law. Southwestern Law
Review, 49.
Find more of Dr. Garber's publications here
A very large but unknown percentage of
post-divorce family litigation is
sparked by a child's resistance or
refusal to comply with scheduled
contacts with one parent. The rejected
parent claims alienation. The preferred
parent claims abuse or neglect or simply
defers to the child's mature
preferences. Only an expert in child and
family development with nationally
recognized qualifications can adequately
assist the court to make these difficult
distinctions and to recommend
child-centered remedies.
Dr.
Garber's book,
"Mending Fences: A
collaborative, cognitive-behavioral
“reunification”
protocol serving the best interests of
the post-divorce, polarized child"
(UnhookedMedia,
2021)
is the first comprehensive,
empirically-based protocol for
understanding and responding to
"resist/refuse dynamics."
"Mending Fences" builds on the
cognitive-behavioral protocol Dr. Garber
first introduced in his 2015 publication
cited below and available at right:
Garber,
B.D. (2015). Cognitive-behavioral
methods in high conflict divorce:
Systematic desensitization adapted
to parent-child reunification
interventions. Family Court
Review, 53(1), 96-112.
Read more here:
Garber,
Benjamin D. (2011). Parental
alienation and the dynamics of the
enmeshed dyad: Adultification,
parentification and infantilization.
Family Court Review, 49(2),
322-335.
Garber,
B. (2007). Conceptualizing
visitation resistance and refusal in
the context of parental conflict,
separation and divorce. Family
Court Review, (4)1, 588-599.
Garber,
Benjamin D. (2004). Parental
alienation in light of attachment
theory: Consideration of the broader
implications for child development,
clinical practice and forensic
process. Journal of Child Custody,
1(4), 49-76.
Should your expert and your
client meet?
The
consulting family law expert works in the
employ of counsel (or occasionally directly
for the court or the Guardian ad litem)
. In this way, the expert's work-product is a
protected subsidiary to the lawyer's
work-product unless and until the expert is
revealed to opposing counsel.
A non-testamentary
expert -that is, an expert who will
work exclusively behind the scenes, under the
umbrella of the employing lawyer's protection
and who will never be disclosed to opposing
counsel- can and perhaps should meet the
client. In this capacity, the expert's
familiarity with the client can help to direct
the consultative process to inform a critique
of records and assist with deposition,
examination, and cross-examination. This
familiarity often also reassures and helps to
focus the client.
A
testamentary expert -that is, an expert
who will be disclosed to opposing counsel, who
is likely to be deposed and to testify- should
not meet your client. Although this artificial
compartmentalization may be socially awkward
for the client who reasonably wants to meet
his or her expert, it's often important. To
proceed otherwise is to risk compromising
impartiality and to leave the testamentary
expert vulnerable on cross-examination. Why
has the expert met one parent but not the
other? What are the expert's professional
impressions of the client? Even a brief and
polite introduction can become grist for the
mill - grounds to try to draw out the expert's
professional impressions of the client as a
distraction, if not an actual assault on that
client's standing and that expert's
neutrality.
Read more here:
Brodsky, Stanley
L. and Gutheil, Thomas G. (2016).
Boundaries between expert witness roles
and trial consultation. The expert expert
witness: More maxims and guidelines for
testifying in court (2nd ed.).Washington,
DC, US: American Psychological
Association.
Gould, J.,
Martindale, D., Tippins, T., &
Wittmann, J. (2011). Testifying experts
and non-testifying trial consultants:
Appreciating the differences. Journal of
Child Custody: Research, Issues, and
Practices, 8(1-2), 32-46.
Expert consultation - NOT
client coaching
The
fact is that some litigants approach
litigation and evaluation the same way
that they approached the SATs back in
school. They research specific testing
instruments on the internet. They hire
coaches who claim to be able to improve
their performance on standardized
psychological tests like the MMPI and
help to polish their presentation in
interview.
The
fact is that some "professionals" feed
on this need. Some professionals will
coach and direct and script and
otherwise undermine the validity of
evaluation, deposition, and testimony.
This practice is unethical. It risks
distorting evaluation data, evaluator
recommendations, final judgments and
-ultimately- it risks harming children.
Because their
role is never disclosed, these
professionals remain behind the scenes,
invisible to all but the most savvy
evaluators and expert consultants.
Read more:
Barth, L. (2011),
CONSULTANT CONDUCT IN ANTICIPATION
OF A CHILD CUSTODY EVALUATION:
ETHICAL AND SOCIAL DILEMMAS AND THE
NEED FOR NEUTRAL PARENT EDUCATION.
Family Court Review, 49: 155-169.
Association of
Family and Conciliation Courts ,
Child Custody Consultant Task Force
(2011), MENTAL HEALTH CONSULTANTS
AND CHILD CUSTODY EVALUATIONS: A
DISCUSSION PAPER. Family Court
Review, 49: 723-736.
Expert
consultation is not -and must never
be- litigant coaching. As expert
consultant, Dr. Garber and Family Law
Consulting, PLLC, will work with you
from case inception through final
judgment to assure that the litigation
process is well-informed, empirically-
and ethically-sound and child-centered.
Practice
tip: Ask whether the GAL or
custody evaluator inquired whether
either party was coached at any time
prior to or during the course of the
evaluation? If so, determine the nature
and extent of the coaching, consider
deposing the coach and impugning the
recommendations as tainted fruit.
Read more here:
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.
Retaining an expert, privilege
and discovery issues
Occasionally
a litigating client will call Family Law
Consulting PLLC to inquire about retaining
expert services. These callers are typically
well-meaning, strong self-advocates, and eager
to save legal costs by doing some of the
legwork for his or her lawyer. This kind of
assertive, proactive and well-informed effort
is to be applauded and reflects well on that
parent's willingness and ability to advocate
for his or her child, but these callers are
gently re-directed: The consulting family
law expert needs to be retained by counsel
rather than the litigant him- or herself.
As the attorney's employee, the expert's work
product is protected by privilege from
discovery unless and until that expert's role
is disclosed before the court.
Protecting the expert from discovery also
requires that the expert's fees are paid by
the attorney, rather than the litigant. Direct
payment from client to expert can be construed
as undermining the expert's role and
invalidating privilege. These same precautions
also dictate a socially awkward but legally
necessary separation between expert and
client, particularly when the expert is asked
to testify
Uncertain
whether you'll need your consulting expert
to testify? It is commonly the case
that a foresightful lawyer wishes to retain an
expert early in the case for document review,
critique of the custody evaluator's work and
the Guardian's recommendations, but can't
predict whether it'll be necessary for the
consulting expert to testify months (or
sometimes years) later. In this situation, Dr.
Garber will ask to be treated as a
testamentary expert -thereby preserving
privilege as long as possible- until the
decision can be made.
Once
Dr. Garber is disclosed as a
testamentary expert (or as necessary
at any time in the course of the
consulting relationship), you will be
provided a current copy of his
curriculum vita, an annotated partial
history of case consultations, and all
other documentation relevant to his
role and anticipated testimony.
Practice
pointer: Lawyers differ dramatically on
the subject of whether electronic
communications with an expert are acceptable
and/or subject to discovery. These differences
often reflect differences in various courts.
Certainly the opportunity to email
(particularly using encrypted platforms)
facilitates consultation, but at what cost?
Family Law Consulting, PLLC, will work with
you to establish privileged, effective and
timely means of communications early in the
consultative process.
"Lawyers have
engaged in extraordinary measures
to control the flow of information
between lawyers and experts and to
eliminate the creation of 'draft'
expert reports because of the rule
of thumb taught to every first
year associate: 'whatever you say
to an expert will be
discoverable.' Shouldn’t we have a
rule that lawyers’ communications
with retained experts and the
draft reports of those retained
experts are work-product protected
from production under most
circumstances? The Civil Rules
Advisory Committee answered this
question, 'yes,' with its December
1, 2010 change to Fed. R. Civ. P.
26."
Read more here
Read more regarding expert
communications and privilege:
Barkett, J.M
(2015). Work Product Protection for Draft
Expert Reports abd Attorney-Expert
Communications. Available online here:
Expert
consultation examples
Dr. Garber provides
numerous clinical, forensic and consulting
services
For a description of
these and other services, please visit
www.HealthyParent.com
For a sample Service
Agreement detailing how expert consultation
works, read more here
Family
Law Consulting PLLC is the business entity
under which Dr. Garber provides expert
consultation to family law litigation in the
best interests of the child. Following are
recent examples of these services:
Document or "Work
Product" Review:
At the
time of divorce, Mrs. Smith agreed to drop
domestic violence charges if Mr. Smith
agreed to supervised contact with his
children.That was eight years ago. Interim
efforts to decrease supervision, to benefit
from "reunification" therapy and
otherwise to normalize the father's
relationship with his children all failed.
Father's lawyer hired Dr. Garber to consult
in consideration of his argument that mother
was subtly undermining the process.
The
volume of documentation to be reviewed was
prodigious. Supervision notes had been
produced twice and sometimes three times a
week. Psychological evaluations of all
involved had been conducted. The
reunification therapists and the children's
therapists had all been deposed. Hearing
transcripts were measured in pounds, rather
than pages. The question was whether the
accumulated documentation supported a claim
that mother was alienating.
It did
and she was. Father's aloof and demanding
behavior was also relevant, as was
step-father's denigrating posture toward and
about the children's father. As testamentary
expert, Dr. Garber digested and indexed the
complex and voluminous data, cataloging
incidents and requesting receipt of
additional collateral information.
Depositions and testimony ensued. Hearing
this testimony, the court endorsed a plan to
gradually remove father's supervisors and
establish safeguards that helped father and
children (re-)establish healthy
relationships.
Read More:
Clawar 's
1984 article is dated but still
provides essential perspective
on the basics of work product review.
The article is available in full here
More recent and relevant:
Austin, W. G.,
Kirkpatrick, H. D., & 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(4),
737-749
Austin, W. G.,
Dale, M. D., Kirkpatrick, H. D., &
Flens, J. R. (2011). ). Forensic
expert roles and services in child
custody litigation: Work product
review and case consultation. Journal
of Child Custody: Research, Issues,
and Practices,8(1).
Kirkpatrick,
H. D., Austin, W. G., & Flens, J.
R. (2011). Psychological and legal
considerations in reviewing the work
product of a colleague in child
custody evaluation. Journal of Child
Custody: Research, Issues, and
Practices, 8(1).
Gould, J. W.,
Kirkpatrick, H. D., Austin, W. G.,
& Martindale, D. (2004). A
Framework and Protocol for Providing a
Forensic Work Product Review:
Application to Child Custody
Evaluations. Journal of Child Custody:
Research, Issues, and Practices, 1(3),
37-64.
The myth of the "Parental
Alienation Syndrome"
Resist/refuse
dynamics?
The children resided
with their mother and refused to
see their father. Father's counsel
argued that the children had
"parental alienation syndrome."
Mother's counsel argued that,
independent of the facts of the
case, "PAS" did not meet the
Daubert standard for
admissibility. Dr. Garber was
hired as testamentary expert in a
Daubert hearing to determine
whether "PAS" was admissible.
In fact, this particular case won
national attention and is
documented in the article at
right. From that article:
"Dr. Garber
testified regarding the lack
of reliable basis for PAS
theory, including the theory’s
lack of falsifiability;
difficulties in determining an
error rate for testing the
theory; the attribution of
unilateral blame on one
parent; and lack of general
acceptance. After noting the
“overwhelming legal and
scientific precedents
and objections to the
scientific validity” of PAS
theory, the Mastrangelo court
found that because the
allegations at bar related to
the so-called favored parent
and the children, and not only
the children, the theory did
not meet the relevant
standards for admissibility."
Joyce, K.
(2019). Under the
Microscope: The
Admissibility of Parental
Alienation Syndrome. 32 J. Am.
Acad. Matrimonial Law.
53.
There's
no question that alienation does not
constitute a syndrome. More than just
grammatical nitpicking, the issue bears on
who must be treated and how in order to
begin to repair the girls' broken
relationship with their father. The "PAS"
construct lacks the support of the
scientific community and has no known
error rate. In fact, PAS as described by
its promoters is a circular construct that
cannot be disproven.
Dr.
Garber is prepared on the stand to speak
to each of these points, to cite studies
broadly supported by the scientific
community describing alienation as one
among a number of family system dynamics,
and to convince the court that the PAS
argument must not be allowed.
The National
Council of Juvenile and Family
Court Judges (2015)
has since taken a definitive
position, stating in relevant part
that,
"... the NCJFCJ
disputes Parental Alienation
Syndrome (PAS)
as admissible evidence.
Discredited by the scientific
community,
any reference to PAS in custody
evaluations
should be stricken under the
standards established in Daubert
and Frye."
Read more here
Read more here:
Bruch, C. S.
(2001). Parental alienation syndrome
and parental alienation: Getting it
wrong in child custody cases. Family
Law Quarterly, 35, 527–552.
Walker, L. E.,
& Shapiro, D. L. (2010). Parental
alienation disorder: Why label
children
with a mental diagnosis? Journal of
Child Custody, 7, 266–286.
Baker, A. J.
L. (2007). Adult children of parental
alienation syndrome: Breaking the
ties that bind. New York, NY: W. W.
Norton.
The
child's "voice," "mature minor"
statutes, and the child's competency to be
heard:
This may
someday be known as the "voice of the child"
decade. Courts across North America are ever
more inclined to solicit the child's opinion
or "voice" with regard to his or her future
care. Judges in Quebec are required to
invite children to be heard. Elsewhere
across Canada, "voice of the child"
evaluations are more and more commonly
accepted as quick and cheap substitutes for
custody evaluations. Courts in the United
States are beginning to follow suit.
For example:
Haberman v. Haberman
(Saskatchewan Queen's Bench, 2011; see item
87 page 16)
The
emerging literature suggests that children
should be given "voice, not choice."
Children who feel that their thoughts and
feelings have been heard as part of family
litigation are more likely to comply with
the court's eventual orders, regardless
whether those orders are congruent with the
child's wishes.
Read more:
Birnbaum & Bala (2009), “The Child’s
Perspective on Legal
Representation: Young Adults
Report on Their Experiences with
Child Lawyers,”Canadian
Journal
of Family Law, 25(1), 11- 71.
Birnbaum & Bala (2010) , “Judicial
Interviews With Children In
Custody And Access Cases:
Comparing Experiences In
Ontario And Ohio,” International
Journal
of Law, Policy and the Family.
The
American Bar Association opines that,
"Competency to testify involves the
abilities to perceive and relate. If
necessary and appropriate, the lawyer should
present expert testimony to establish
competency or reliability or to rehabilitate
any impeachment of the child on those
bases." Read more here
Family
Law Consulting, PLLC, works with counsel,
guardians, evaluators, and courts to
recommend when and how the child's voice
might be solicited and, once obtained, how
to weigh the child's words within the larger
context of his or her needs and within the
best interests formula. Critical to this
process is the ability to identify the many
systemic confounds that can corrupt the
child's voice.
Hired
after the fact, Family Law Consulting, PLLC,
is positioned to prompt counsel to cross
examine the evaluator or Guardian ad
litem, carefully taking into account
the systemic confounds and procedural
variables that can corrupt the child's
voice.
Serving
as a testamentary expert, Dr. Garber has the
established expertise, training,
publications, case history, and gravitas on
the stand to educate the court about the
concept of "the mature minor," the variables
that can corrupt the child's voice, and the
weight to assign the many variables that
together determine the best interests of the
child.
Contemporaneous
consultation to counsel, evaluation
critique, and testamentary expert:
The court
ordered that parties complete a "custody
evaluation" to be conducted by either Dr.
Garber or Dr. X.
Dr. X was
selected. Mother's lawyer immediately
retained Dr. Garber as her expert consultant
to guide her through the evaluation process,
to critique the final report, and to testify
regarding its adequacy and validity.
Retaining
counsel and Dr. Garber agreed that this was
NOT client coaching. The client would
participate in the evaluation openly and in
good faith, keeping her lawyer abreast each
step along the way. The lawyer and Dr.
Garber consulted as the process unfolded,
collecting observations and researching
methods without alerting the client, the
evaluator, or opposing counsel until much
later, after the evaluation was complete.
Upon receipt of the evaluator's final
report, retaining counsel was already
well-versed in the procedural pluses and
minuses of the process and could weigh the
evaluator's inferences and recommendations
against this information.
For
example: Mother alerted her lawyer that she
had been invited to participate in an
initial interview with the evaluator despite
the fact that she had never seen or endorsed
a specific service agreement. Dr. Garber
alerted counsel to the relevant APA and AFCC
guidelines calling for evaluators to
establish terms in writing in advance of
evaluation. Counsel used this as one among
numerous other procedural errors to impugn
the final report which disfavored her
client. Dr. Garber testified to proper
procedure, citing guidelines and common
practice.
"4.1 WRITTEN
INFORMATION TO LITIGANTS
Child custody evaluators shall
provide each litigant with written
information outlining the
evaluator’s policies, procedures and
fees.
(a) Even when litigants are
submitting to an evaluation in
response
to a directive from the court,
evaluators shall provide
detailed written information
concerning
their policies, procedures, and
fees. ..."
AFCC
Custody Standards (2006)
Why hire Family Law Consulting,
PLLC?
Because
you're a fine litigator with an
excellent reputation. You were Law
Review editor and are respected in your
field, but you're not a child
psychologist.
Because you're an
ethical professional who strives to
balance zealous advocacy with a
child-centered approach.
Because you
believe that family law is about
understanding and serving the needs of
children, not dividing the child like so
much furniture.
Because you
recognize that each family is unique,
that each child has distinct strengths
and weaknesses, and that there can be no
cookie-cutter, one-size-fits-all
answers.
And
because you recognize that Dr. Ben
Garber and Family Law Consulting PLLC
represent the epitome of conscientious,
empirically-driven, child-centered,
responsible and responsive expert
forensic family psychological services.