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Testifying in Contested Custody Litigation

By: Dr. Anasseril E. Daniel
Tel: (573) 443-6930
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Testifying in court or at deposition is a challenging and at times, disconcerting experience even for the seasoned expert. For beginners, it is intimidating, daunting and often humiliating. The expert's knowledge is questioned and challenged under cross - examination, as the judicial system is inherently adversarial in nature (Poynter, 1997). Testifying in child custody hearings is relatively less traumatic if appearing for the court or for the Guardian Ad Litem (GAL) though the expert will be vigorously cross examined by attorneys for the petitioner and the respondent. One-sided experts may find it a bit more intimidating.

In child custody cases, there is a great need to be decisive as to the best interests of the child; however, this may generate strong feelings in one of the litigants. Schetky and Colbach (1988) identified numerous positive and negative counter transference issues confronting a forensic expert. Once the expert becomes aware of the issues such as strong feelings about authority; personal feelings about sexuality and aggression; and the diagnostic, predictive and therapeutic limits and uncertainty of psychiatry, the task becomes bit easier. Nevertheless, most child psychiatrists and child psychologists abhor testifying and avoid court appearances. On the other hand, it can be a highly rewarding experience for the not so meek, both professionally and personally.

As a child custody expert, the primary purpose of the testimony is to educate, inform and teach the court matters pertaining to the evaluation of the participants in child custody. The expert has to be persuasive and credible. Credibility depends on the expert's appearance, language command, background, experience, education and body language and how the material is presented. The expert has to be knowledgeable about his/her own background and specific credentials. The expert who is able to accurately portray him/herself appears to be more credible and wins points with the fact finder.

The expert must be impartial or neutral and present materials with integrity. Leaders of the forensic field have questioned the fallacy of the impartial expert since all experts are somehow biased due their own personal, psychological, educational and cultural background and training. Yet, ethical guidelines of organizations such as the American Academy of Psychiatry and the Law implore forensic practitioners to strive for objectivity and neutrality (Katz, 1992). Diamond (1973) declared after many years of observing the court that "There is no such thing as an impartial expert witness; the objectivity of the expert witness is largely a myth." The experts should be committed to "honesty and to informing fact finders about the extent and limits of their scientific knowledge, the facts on which their opinions are based, as well as the scientific and value assumptions that underlie their testimony" (Katz, 1992).

Conduct and preparation of the expert

It is important to be professional and show respect to the court because the proceedings are serious in nature. Always maintain eye contact with the attorney asking questions and direct your responses to the judge. Maintain the appearance of relaxed confidence. Be conversational in your reply, but do not ramble. Express your ideas clearly and succinctly. It is not uncommon for the expert to carry an air of superiority but such demeanor is not conducive to effective and persuasive testifying.

The expert is expected to dress conservatively, look dignified and well groomed with no flashy jewelry. No fashion statements, miniskirt or unconventional attire is allowable. Do not take anything personally as each court officer is doing his/her job.

It is important to be professional and show respect to the court because the proceedings are serious in nature. Always maintain eye contact with the attorney asking questions and direct your responses to the judge. Maintain the appearance of relaxed confidence. Be conversational in your reply, but do not ramble. Express your ideas clearly and succinctly. It is not uncommon for the expert to carry an air of superiority but such demeanor is not conducive to effective and persuasive testifying.

The expert is expected to dress conservatively, look dignified and well groomed with no flashy jewelry. No fashion statements, miniskirt or unconventional attire is allowable. Do not take anything personally as each court officer is doing his/her job.

The key to being a successful and effective child custody expert is thorough preparation. Preparation involves familiarization and understanding the purpose and key issues pertaining to the hearing. The issue before the court can be modification of visitation, full custody hearing, termination of parental rights, relocation, grandparent's rights or a dispositional hearing regarding an abuse complaint. It is always important to have a full understanding of the relevant statutory guidelines.

Prepare in advance by meeting with the attorney who is requesting your appearance. Often, the custody report is very detailed and lengthy and therefore it is important to review the report the previous night and re - familiarize with the findings and recommendations. Be knowledgeable about the recent developments in the case because there is usually considerable delay between when you submit your report and the hearing. During the interim, there may be new developments such as fresh allegations of abuse, Ex - Parte orders, temporary change in placement, hospitalization of the child involved and change of therapist or other unexpected developments.

Technical knowledge on various topics relevant to child custody is crucial. This involves a thorough knowledge of theories of attachment, parental alienation, enmeshment, child development, normal developmental and behavioral variation, and normal psychosexual development. Reliance on outdated research and techniques may undermine the credibility of the expert.

The usual dictum for the expert in criminal and civil litigation is to refrain from volunteering any information. However, in child custody hearings, the evaluator should raise any crucial points (e.g., the dynamics of the individuals) that were not elicited by the attorneys' questioning. Always tell the truth, the whole truth and nothing but the truth because integrity is the only thing going for the expert.

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Dr. Anasseril E. Daniel, specializes in Forensic Psychiatry. Dr. Daniel applies his clinical expertise to issues involving civil, criminal, and correctional matters. Board Certified in Adult, Child and Forensic Psychiatry.

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