Experts (Part 1)
Use of Experts
During the course of custody litigation, experts often become involved for purposes of evaluation. In fact, the trend in child custody litigation shows an explosion in the use of expert witnesses since 1920. A prominent study has shown that experts were rarely used in such cases in the first half of this century. By 1995, however, the percentage of divorces where experts are used had risen to 38%. It has probably increased since, and now as many as half of all divorces utilize an expert in some capacity. Furthermore, surveys of judges have demonstrated that judges regard expert testimony as very influential in their ultimate decision, particularly where the court appoints the expert.
A professional expert involved for evaluation purposes is someone who is not a “treating” professional. It is generally agreed that a treating professional, such as a counselor whom the parties may have been seeing, cannot evaluate objectively. In fact, the ethical principles of psychologists and a Code of Conduct of the American Psychological Association expressly disapprove of such a dual role. Your evaluation may be performed by an “expert,” who may hold any these occupations:
Counselor — This is a very broad term, like investment advisor. In most states, counselors are licensed, though a license may not be required. Most states do not require counselors to have attained an undergraduate college degree. As a result, a “counselor” could be anything from a highly qualified professional to a transient and inept opportunist.
Social Worker — typically has attained a master’s degree in social work. Social workers usually work for governmental entities and many county judicial systems have a corps of social workers available for use in custody and other family conflicts. Social workers typically have an educational background in sociology and learn more about how groups of people behave than about individuals, especially children. In my experience, they tend to be liberal and inexorably confident in the power of government (legislature or judicial) to solve people’s problems. At the risk of generalizing unfairly, my experience has been that conservative assertive males do not relate warmly to social workers.
Psychologist (not to be confused with psychiatrist)— is a mental health care professional with a Ph.D. in psychology. Psychologists are far and away the most commonly utilized experts in custody litigation. Psychologists have completed hundreds of hours of undergraduate and graduate study in the field of psychology and are accredited by the American Psychological Association. There are five areas of practice: counseling, school, industrial, experimental, and clinical. Of these, only clinical psychologists are properly trained to perform custody evaluations. Unfortunately, it is common for psychologists to practice in several fields, though they have no specialized training in all of them. According to a leading child custody psychologist, to be an effective custody evaluator, a psychologist should have a degree at the doctoral level in psychology, at least several years of hands on experience as a clinician post doctoral, a solid base of experience and knowledge relating to child, adolescent and adult development, including both normal and abnormal psychology, and a full understanding of family dynamics including the effects of divorce. Additionally, a good custody evaluator will be current on the latest research and studies in the field. To be effective, the evaluator must also understand the ethical canons of the profession relating to custody evaluations.
Psychiatrist — is a medical doctor who has chosen to specialize in psychiatry. Psychiatrists, while lagging far behind psychologists in usage, are nonetheless the second most commonly used experts in custody litigation. Unfortunately, psychiatrists are not very well trained to do intensive patient evaluations or extensive talk therapy. They typically have an undergraduate major in science. Thereafter, they spend 8 years in medical school, including residency. Only after their residency is complete, do they receive specialized mental health training, which is condensed into a two-year residency. Much of this period, however, is devoted to biological and psychopharmacological issues. In fact, many psychiatrists will readily concede that little opportunity exists to study clinical and counseling issues. Psychiatrists focus primarily on diagnosis of mental illness, prescription of medication and regulation of the medication.
Obviously, a psychiatrist is not normally your expert of choice in a custody battle. Aside from being notoriously expensive, they are also frequently unavailable to testify at trial and, as other doctors, have to submit a record of deposition testimony to the court. Clearly, a dry transcript is usually not as persuasive as a witness testifying in person.
This online custody guide is adapted with permission from “Civil War: A Dad’s Guide to Custody” (266 pages, softcover) – available in our online store.