Testimony Before the Matrimonial Commission    10/14/04 NYC


                   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 2 am

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

york. It has been argued that the outcomes for children when

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. 


1.  New York State has virtually no statutes, court rules,

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

they need:


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 sexual abuse. California --

after the oj simpson custody case -- now requires that

forensics have domestic violence training. The california

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 visitation in new york, plus the

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)

     family violence


     psychology of victims of crimes & disasters

     psychology of criminal behavior

     interviewing methodology


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

present time.


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

addressing you.


Nancy S. Erickson, Esq.

Legal Services for New York City,

     Brooklyn Branch*

180 Livingston Street, Suite 302

Brooklyn, NY 11201

718-852-8888 x 108                 * for identification


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