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?

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 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" will help you to create a parenting plan 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.

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.

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 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.

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.
  

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 will be 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 other services, please visit www.HealthyParent.com

• For a sample Service Agreement detailing how expert cnsultation 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.

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"

Three grade school aged girls 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 to make the case.

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 thier 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 was 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 consult to counsel, evaluation critique, and testamentary expert:

The court ordered that parties complete a "custody evaluation" to be conducted by 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 that had occurred 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.