August 8, 2014 by Robert Franklin, Esq.
“(1) That E. received extensive — over 50 hours — of preparation for her forensic interview with Dr. Herman from a fellow expert, Dr. Jonathan Gould.”
That’s a quotation from the New York case of E.V. vs. R.V. that I wrote about on Thursday. And it leads to the revelation of an entire sub-genre of services provided by mental health professionals (MHPs) — “pro-litigant preparation.” What is “pro-litigant preparation?” It’s the employment by a litigant (often in child custody cases) of a mental health professional for the purpose of preparing the litigant for the evaluation to be conducted by another MHP, often appointed by the court.
When a court wants to ascertain which parent is better fit to have primary or sole custody, it often will appoint a custody evaluator. That person will then administer certain psychological tests, interview the parent, observe their interaction with the child, consider other information like previous medical or psychological records, etc. Obviously, the psychological testing and the interviews with the evaluator make up a big part of his/her evaluation. It is therefore in the interest of the litigant to “ace the test,” i.e. perform as well as possible for the evaluator. Much hangs in the balance.
So, when there’s sufficient money available, lawyers and litigant parents often conclude that employing an MHP to help the parent in his/her interactions with the court-appointed evaluator can give the parent an advantage. The better the parent performs, the better the chance the evaluator will recommend custody for that parent and therefore the better the chance the judge will order same. Whatever the reality, such is the theory on the part of lawyers and their well-heeled clients. And, more and more, MHPs are taking that theory straight to the bank.
Now, some will read the above and find nothing amiss. After all, would-be doctors and lawyers take preparatory courses to help them pass the MCAT or LSAT. So what’s the problem with an MHP’s assisting a parent in making a good impression on an evaluator?
There are several. Pre-test prep courses offer only the most general and vague ideas of what the actual test will be like. They analyze previous tests in an effort to figure out what will be asked, but the organizations that create the tests know that and attempt to administer a test that doesn’t conform to previous ones. Not so the psychological testing performed by the evaluator. There are certain possibilities, such as the MMPI and others. These are known to the “pro-litigant preparer” and he/she can advise the parent on how to answer the questions to best enhance the possibility of custody.
Likewise, the preparer has a good idea of what questions the evaluator will ask the parent and can give fairly accurate instructions on what and how to answer. Indeed, the preparer can even conduct simulated interview sessions so the parent can practice and receive feedback on word choice, body language, content of answers and the like. When we see in the case of E.V. vs. R.V. that the preparer spent an astonishing 50 + hours preparing the mother, we begin to suspect that those simulated sessions must have been part of what he and the mother were doing.
Of course, what goes on behind closed doors is known only to the people in the room. And since the preparer likely establishes a confidential relationship with the parent, we likely never will know. But it doesn’t take much imagination to realize the enormous potential for misuse and abuse of the system of child custody decision-making posed by the practice of litigant preparation by MHPs. Court-appointed custody evaluators rely on the parents they evaluate to be who they are, not what they’re trained to be by a professional. Naturally, those evaluators aren’t babes in the woods. They have experience in seeing when someone is performing a role as opposed to being him/herself. At the same time, MHPs have been fooled before many times and will be again. And they’ve been fooled by people who didn’t have the benefit of MHP training beforehand.
Put simply, when an MHP is paid handsomely to prepare a litigant for his/her sessions with a custody evaluator, the temptation on the parts of both the MHP and the litigant to try to fix the outcome becomes great. The tendency to lie about who the parent is and what his/her parenting practices are is undeniable.
Now, technically, what the preparer may be doing doesn’t qualify as subornation of perjury because he/she is not encouraging the parent to lie under oath, only to lie to the evaluator. But what both the preparer and the parent know is that the whole purpose is to obtain a favorable report to the court, and that report is very likely to be supported by testimony by the evaluator that is under oath. Likewise, the parent may well testify under oath and, educated ahead of time in what to say and how to say it by the MHP, that testimony may well constitute perjury and the MHP become a suborner thereof.
I suspect that’s exactly what was on Judge John Colangelo’s mind when he spelled out Number (1) above. Recall that Number (1) was the first of seven facts the judge found to be “salient” and relied on for discounting and ultimately rejecting the recommendation of the custody evaluator in the case of E.V. vs. R.V. The evaluator, Dr. Stephen Herman, recommended that the mother, E., retain primary custody of the child. But Herman conducted his evaluation of E. ignorant of those seven facts, so Judge Colangelo rejected his recommendation. And the very first fact the judge relied on in doing so was the fact that E. had spent over 50 hours with an MHP preparing herself for that evaluation. Clearly the judge concluded that preparation tainted the evaluation, and I strongly suspect he was right.
Judge Colangelo and I are not alone. A short paper written for the February 2010 edition of Law Journal Newsletters by Dr. David Martindale (for which I unfortunately cannot provide a link) spells out in considerable detail the problem of litigant preparation by MHPs. While acknowledging that we don’t really know how common the practice is, Martindale sees clearly that it can come very close to suborning perjury and a violation of various ethical canons for MHPs.
Though empirical data are not available, many who work in the family law field have come to a disturbing conclusion: Mental health professionals (MHPs) are engaging in activities, the objective of which is to assist litigants in presenting themselves to evaluators in deceptive ways. Acting as consultants to attorneys, the MHPs are doing this with increasing frequency. Such activities include providing litigants with information that would facilitate efforts on their part to dissimulate either in response to test items or in response to interview questions.
Martindale points out that courts have found that the purpose of custody evaluators is twofold — “information gathering and opinion formulation.” And if the information gathered is tainted by the preparation process, then necessarily the opinion formulated by the evaluator becomes suspect. In short, pre-evaluation litigant preparation strikes at the very heart of the process of child custody decision-making.
Nor is Martindale convinced by the argument that preparers don’t actually suborn perjury simply because the litigant is speaking to the evaluator and not directly to the judge.
It is reasonable to presume that the purpose of laws forbidding perjury is to prevent material information known by witnesses to be false from being offered in testimony by those witnesses. Mental health professionals who assist custody litigants in efforts to deceive evaluators are aiding those litigants in their attempts to put before the court false information and false impressions of themselves. Though the initial objective is to deceive the evaluator, when cases proceed to trial, the fakery must now be re-played under oath.
Of course many cases don’t proceed to trial. But, when an MHP encourages a parent, whom he/she knows to be involved in a court case, to lie to an evaluator whose opinion he/she knows will come before a court of law, the fact that the parent lies only to the evaluator and not to the judge and therefore cannot be called perjury, verges on a distinction without a difference. Beyond that, though, Martindale is unquestionably correct that a coached witness in court may be one who commits perjury with the full knowledge and encouragement of the MHP. And that is a violation of both criminal law and the canons of ethics for MHPs.
If the mental health professionals are not actually suborning perjury, they are engaging in acts that are the functional equivalent of suborning perjury. Mental health professionals who encourage custody litigants knowingly to offer false information are offering this advice precisely because, acting as consultants to the litigants’ attorneys, the mental health professionals have set "victory" (however that might be defined by the litigants and their attorneys) as the goal and have concluded that the probability of securing victory will be increased if the litigants offer false information instead of factually accurate information.
Martindale knows that the mere act of discussing the evaluation process with a litigant is not per se a violation of any code or law.
There are litigants for whom the evaluative context generates a form of anxiety that interferes with their ability to be themselves and to respond in a reasonably articulate manner to questions. Mental health professionals who assist such litigants in dealing more effectively with their anxiety make it easier for evaluators to obtain accurate information and to witness more natural behavior when parent-child interactions are observed. Mental health professionals who help litigants to be themselves are not the problem.
In those cases, the MHP can provide a service that benefits all, including the system of deciding custody. But when large sums of money can be made by being less than scrupulous about precisely what an MHP does and why, fine distinctions between helping litigants “be themselves” and helping them cheat on the test, often fly out the window. And of course, if a preparer proves him/herself to be particularly adept at getting the “right” result, attorneys can be counted on to take notice and refer clients to the MHP again and again, ensuring a steady flow of income, while further encouraging those distinctions to be ignored.
In all cases in which the parents have sufficient funds to hire experts like these, lawyers should be on the lookout for coaching by them. The father’s attorneys in E.V. vs. R.V. clearly were vigilant for the problem and brought the matter to the judge’s attention. And to his credit, Judge Colangelo took notice and duly downgraded the recommendation of Dr. Herman who relied on E. to “be herself,” when she probably wasn’t.
My last post about the case of E.V. vs. R.V. discussed the well-known ways in which unscrupulous MHPs abet parental alienation for the purpose of achieving sole or primary custody for the alienator and removing the other parent from the child’s life. Doing so of course damages the child, the target parent and the system of justice whereby decisions are supposed to be made in “the best interests of the child.”
Unfortunately, that sort of MHP is all too common in family court. Less well known is the MHP — the “pre-evaluation litigant preparer” - who acts behind the scenes to bring about a result that otherwise would be unwarranted. Like those who abet parental alienation (in the case of E.V. vs. R.V., he did both), MHPs who prepare parents for evaluation, often do so to the detriment of all and, into the bargain, often cross the line between the legal and the criminal, the ethical and the unethical.
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