Testimony Before the Matrimonial Commission
Nancy S. Erickson, Esq.
Good morning. I thank the commission for inviting me here
today to testify on the subject of forensic evaluations in
custody cases, especially those involving domestic violence.
I've been an attorney for over 20 years -- over 10 as a law
professor. Currently I am a senior family law attorney at
legal services in brooklyn, representing low-income clients,
primarily women, in matrimonial and family court cases. I
represent many battered women in custody cases.
I wish I had time to give testimony on issues other than
forensic evaluations. Most importantly, there is a critical
need for counsel for low-income clients, which could be
provided either by court-ordered counsel fees from the
monied spouse or by appointment of assigned counsel.
I would also like to urge this commission to question the
need for no-fault divorce at this time. There are other
needs that are far more urgent and should be addressed prior
to no-fault. My low-income clients have no need for no-
fault divorce -- they almost always have grounds -- namely
cruelty or abandonment. They need reforms in laws regarding
attorney fees, maintenance for dependent spouses, health
insurance after divorce, domestic violence, custody, and
many other areas far more than they need no-fault. No fault
would just give the monied spouse another advantage over the
non-monied spouse, so the playing field would be more uneven
than it is now.
Turning to forensics, I should mention that next spring I
expect to receive my master's degree in forensic psychology.
You may wonder, why would a middle-aged attorney who has had
a long career in family law want to stay up until
studying forensic psychology after she's been in court all
The answer is that I was baffled and concerned about the
number of cc evaluators in my practice and my colleagues'
practices, who seemed to know little about domestic violence
and often paid little attention to it when they conducted
their evaluations. For example, some evaluators held joint
meetings of the battered woman and her batterer, which
further traumatized the battered woman. Some evaluators
misdiagnosed battered women as having serious psychopatholo-
gy, when the women were simply showing symptoms of the
trauma they suffered at the hands of their abusers.
The evaluators often were critical of battered women who
were reluctant to agree to joint custody or unsupervised
visitation to the abusers -- the evaluators labeled these
mothers as "unfriendly parents" and even recommended custody
or joint custody to the abuser. For example, just recently a
forensic recommended joint custody when the abuser-father
had a criminal conviction for abusing the mother. In what
other situation would the law put a crime victim on the same
level as the criminal and require her to have unnecessary
contact with the criminal? This is one of many reasons why a
presumption of joint custody would not be beneficial in new
their parents have joint custody is superior to the outcomes
for children when there is a traditional custody/visitation
situation, but the empirical research does not back up this
Judges often follow the recommendations of the custody
evaluators, even when based on faulty procedures and faulty
I wanted to understand how this could happen. Custody or
joint custody to an abuser is virtually never in the best
interests of a child.
After three years of studying forensic psychology, I think I
know some of the reasons why.
or caselaw regarding forensics, and practices differ tremen-
dously from county to county, court to court, and judge to
2. Child custody evaluators rarely have solid training in
how to conduct evaluations and in the dynamics of domestic
violence and the effects of domestic violence on battered
women and on children.
Before I go further, I want to state loud and clear that I
respect the mental health professionals who are conducting
evaluations for our courts -- they are usually well inten-
tioned, hard working, and well trained as clinicians in
their fields: psychology, psychiatry, and social work.
They are also often underpaid, especially if they accept
government fees. I did not come here today to criticize
them. Indeed, I'll soon have the training to be one of
I am here to say that they are valiantly trying to do an
extremely difficult job without some of the basic tools that
1. Specific forensic training, which is virtually never
included in their graduated programs. For example, the
american psychological association has guidelines for foren-
sic evaluators and for child custody evaluations, in addi-
tion to the broader ethics rules that govern their practice.
I have cited these in the bibliography I provided to the
commission. A course devoted to these guidelines and rules
would be a basic building block of a solid forensics train-
2. Second, custody evaluators need specific training in
domestic violence and other types of family violence, such
as child abuse, including child
after the oj simpson custody case -- now requires that
forensics have domestic violence
rules are also in my bibliography. Without such training,
the evaluator is likely to accept the same myths and biases
about domestic violence and battered women held by many
laypeople -- including me, until I studied and practiced
family law. I, like most people, was very naive.
3. Third, custody evaluators need specific training in the
laws governing custody and
rules of evidence and procedure that apply to expert wit-
nesses generally. The apa rules for forensics make this
clear -- forensics must know the law!
The role of an expert witness is to assist the court. Yet
many custody evaluators are not conversant with ny custody
law. Ny custody law provides, for example, that domestic
violence is the only factor the court is mandated by statute
to consider when making a custody decision.
If the custody evaluator does not know the law and has no
expertise in domestic violence, how can the evaluator possi-
bly assist the court in a domestic violence case? And we can
expect that 1/3 to 1/2 of contested custody cases will
involve domestic violence.
The role of a forensic evaluator is a different role -- a
different job -- than the role the mental health profession-
al trained for in graduate school, which is the role of a
clinician, a therapist, trained to diagnose and treat pa-
Reasonable persons can differ on whether the courts should
use forensic evaluators at all in custody cases. Tim Tip-
pins and others have raised that issue. But if our courts
are going to use them, their role will be that of an expert
witness, providing assistance to the court for the purpose
of a legal determination.
Therefore, the mental health professional taking on that
role will have to step out of his or her usual role and take
on the role of an expert witness.
The APA rules view this role as the role of a detective with
special expertise in areas of psychology relating to chil-
dren and families. The Second Department, in Wissink, set
forth guidelines for the kind of detective work the court
believes would be necessary for a comprehensive child custo-
dy evaluation. Such a role would require specialized train-
ing. To obtain such training, I have taken, or will take,
courses such as
developmental psychology (child psychology)
psychology of victims of crimes & disasters
psychology of criminal behavior
I also did an independent study on how to do child custody
evaluations -- procedure. Even though my program is in
forensic psychology, it offers no course on child custody
evaluations. This is not unusual. Most forensic psychology
programs are geared toward criminal issues, such as the
insanity defense, not civil cases.
I have also taken courses in psychological testing -- spe-
cifically the MMPI and the Rorschach. But those courses did
not discuss the fact, for example, that such tests often
result in misdiagnosis of battered women. Research shows
that battered women given the MMPI test can look like they
have borderline personality disorder, when they really are
suffering from post-traumatic stress disorder, which was
caused by the abuser. Currently, I am writing my thesis on
the MMPI and battered women.
In conclusion, my recommendations are:
1. The 1st and 2d departments should continue their recent-
ly inaugurated training sessions for child custody evalua-
tors and law guardians. I applaud Harriet Weinberger at the
2d Dept for her hard work in this regard -- her third pro-
gram is coming up soon. I have given her the curriculum I
designed to train mental health professionals to do foren-
sics, and I know she has consulted others as well.
2. All mental health professionals who wish to conduct
child custody evaluations should be required to register
with the appellate divisions -- it is not mandatory at the
3. A committee should be set up to consider legislation
and/or court rules on child custody evaluators. The commit-
tee should be interdisciplinary -- lawyers, psychologists,
psychiatrists, and social workers -- and should include
advocates for battered women, abused children, low-income
custody litigants, and other important stakeholders.
The committee should start with basic questions:
-- should the courts be using custody evaluators at all?
-- If so, in what cases, and what should their role be?
-- What training should be required of them? For example, I
would suggest that sensitivity to ethnic and cultural dif-
ferences in our society is extremely important.
-- Should they be rendering opinions as to which parent
should have custody -- which is the ultimate issue in the
case, and is for the judge to decide -- or only opinions on
lower-level questions such as the parenting strengths and
weaknesses of each parent? The "ultimate issue" questions is
hotly debated among forensic mental health professionals.
Additionally, some basic procedures need to be worked out.
Some examples are:
a. How is the evaluator to be chosen? Some judges let
the law guardian chose -- is that proper? Some judges
appoint evaluators they like -- is that proper?
B. Who should be allowed to get a copy of the
evaluator's report? Some divorce judges prohibit even the
attorneys from getting copies of the reports -- the attor-
neys are only permitted to read the reports in the court-
house and take notes. This is a serious violation of due
process -- it makes it impossible to prepare for trial
C. Should there be guidelines the courts must follow
in deciding whether a party can afford to pay part or all of
the costs of the evaluator? There are currently no guide-
lines. Low-income individuals are often ordered to pay when
they clearly can't afford to.
There are many other subjects the committee should review. I
will end now and thank this commission for the privilege of
Nancy S. Erickson, Esq.
Legal Services for
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