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
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.
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
lawyer must consider the child’s
The child’s various needs and
interests may be in conflict
and must be weighed against each
The child’s developmental level,
including his or her sense of time,
is relevant to an assessment of
The lawyer may seek the advice and
consultation of experts
and other knowledgeable people
in determining and weighing such
needs and interests"
Bar Association (read more here)
Several examples of successful
consultation to divorce and post-divorce
litigation are provided below
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),
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:
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:
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.
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.
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
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
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
“Evaluators shall consider the stated
wishes and concerns
of each child as these relate to the
parental rights and responsibilities if the child is of sufficient
to independently express informed
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:
Convention on the Rights of the Child
United States’ Uniform
Marriage and Divorce Act (UMDA)
Alienation and related systemic confounds
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
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
Read more here:
Benjamin D. (2011). Parental
alienation and the dynamics of the
enmeshed dyad: Adultification,
parentification and infantilization. Family
Court Review, 49(2), 322-335.
B. (2007). Conceptualizing visitation
resistance and refusal in the context
of parental conflict, separation and
Court Review, (4)1, 588-599.
Benjamin D. (2004). Parental
alienation in light of attachment
theory: Consideration of the broader
implications for child development,
clinical practice and forensic
of Child Custody, 1(4), 49-76.
Should your expert and your client meet?
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.
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.
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
Read more here:
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
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
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
their presentation in interview.
fact is that some "professionals" feed
on this need. Some professionals will
coach and direct and script and
otherwise undermine the validity of
evaluation and testimony. This practice
is unethical. It risks distorting
evaluation data, evaluator
recommendations, final judgments and
-ultimately- it risks harming children.
role is never disclosed, these
professionals remain behind the scenes,
invisible to all but the most savvy
evaluators and expert consultants.
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.
consultants retained for the
preparing a parent for a
are often viewed as somewhat
These consultants are not
generally known to the
and are not present in court,
thus they are immune
from the safeguards of
which may guard against
Barth, 2011 (p.
Read more here
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:
Retaining an expert, privilege
and discovery issues
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
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.
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.
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
"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 regarding expert
communications and privilege:
(2015). Work Product Protection for Draft
Expert Reports abd Attorney-Expert
Communications. Available online here:
Dr. Garber provides
numerous clinical, forensic and consulting
For a description of
these other services, please visit
For a sample Service
Agreement detailing how expert cnsultation
works, read more here
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
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.
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.
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.
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),
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,
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
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),
The myth of the "Parental
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.
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.
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.
National Council of Juvenile
and Family Court Judges
has since taken a definitive
position, stating in relevant part
"... the NCJFCJ
disputes Parental Alienation
as admissible evidence.
Discredited by the scientific
any reference to PAS in custody
should be stricken under the
standards established in Daubert
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
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.
child's "voice," "mature minor"
statutes, and the child's competency to be
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.
Haberman v. Haberman
(Saskatchewan Queen's Bench, 2011; see item
87 page 16)
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
Birnbaum & Bala (2009), “The Child’s
Perspective on Legal
Representation: Young Adults
Report on Their Experiences with
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
of Law, Policy and the Family.
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
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
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.
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
to counsel, evaluation critique, and
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.
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.
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
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
their policies, procedures, and fees.
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
Because you believe
that family law is about understanding and
serving the needs of children, not
dividing the child like so much furniture.
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