May 10, 2010

Calif.: Attack on custody evaluators quashed

The California Assembly's Judiciary Committee has quashed the proposal to strip quasi-judicial immunity from family court evaluators in California that I reported on recently. The bill garnered widespread opposition from judges, attorneys, psychologists, mediators, and other professionals involved with the family courts.

In an insightful analysis, Judiciary Committee counsel Leora Gershenzon wrote about the bill's potential unintended consequences to the courts and to the very children it was ostensibly meant to protect:
Suppose the parents are locked in a bitter custody battle, with one parent raising allegations of child abuse. Today, the court may appoint an expert to look into the allegations. If this bill becomes law, the court may not be able to find an expert to assist the court in gathering information on which to base a decision. Even if the court does find a willing evaluator, the evaluator, if he or she does not have absolute proof that the parent is abusing the child, may be very reluctant to raise such claims … for fear of being sued by the potentially abusive parent. Without this information, the court may unknowingly award custody to the child abuser, the very opposite goal of this legislation....

[Or] consider the situation where one parent has significant sums of money. Suppose this parent has been bullying the other parent, and the children, and dragging on the underlying custody litigation for years. The evaluator appointed in this case, again assuming one can be found, would almost certainly know that if she says anything too negative about the wealthy parent that she will be sued down the road. Assuming the evaluator chooses to continue the evaluation, she may, out of fear of future litigation, simply write a vague report with little information to help the court in making its difficult decision. Without that critical information, the court may award custody to the bullying parent and take the children away from the parent who has been trying to protect them.
The California Judges Association vigorously opposed the bill, stating it would cause significant hardship for the courts. It cited the 1990 opinion of Howard v. Drapkin, which held that quasi-judicial immunity was essential for professionals who help the overburdened judiciary: "Without such immunity, such persons will be reluctant to accept court appointments or provide work product for the courts' use. Additionally, the threat of civil liability may affect the manner in which they perform their jobs." Wrote the Judges Association:
Never has the Howard holding been truer than today. Consider the Los Angeles Superior Court, which conducts the largest alternative dispute resolution (ADR) program in the country. Tens of thousands of mediations, arbitrations, evaluations, and settlement conferences take place each year in LA.... Los Angeles Superior Court is already laying off employees and closing courtrooms to make ends meet. It relies heavily on ADR to administer justice efficiently and effectively while reducing the backlog of cases. Strip neutrals of their quasi-judicial immunity and Los Angeles Superior Court, along with the rest of the Judiciary, is sure to be overburdened by the additional weight of having to try all the cases that would otherwise have been taken care of through ADR.
I am informed that at last week's hearing, the bill's author, Assembly member Jim Beall, agreed to amend the bill to instead establish a framework for a statewide grievance system for parents in the family court system.

Some sort of a quality-control mechanism is essential to protect against shoddy child custody evaluations. This benefits everyone -- parents, the courts, and the majority of hard-working, ethical professionals in the field. However, the need for a brand-new grievance mechanism is less clear, because California law already mandates that each county establish grievance procedures for family court cases. (Here are sample forms from San Diego County and Santa Clara County.)

Unfortunately, local compliance with this law (Rule of Court 1257) is uneven, encouraging parents who are dissatisfied with an evaluator's report or testimony to file complaints with the state Board of Psychology. So, rather than setting up an entirely new system with lots of unknowns, a better solution might be for all of the counties to implement the procedures that are already mandated.

The defeat of Beall's poorly thought out proposal is certainly welcome news. As opponents noted, the consequences could have been catastrophic for both family courts and the families who use them. If professionals were stripped of the legal protections that allow them to feel confident enough to issue ethical and neutral opinions, the most qualified and ethical evaluators -- those who are in high demand and have plenty of other types of work to fall back on -- would have fled this high-conflict arena in droves. This in turn would have left only shoddy practitioners, driven the costs of evaluations beyond the reach of all but the rich, and further overburdened other state services.

However, we still don't know what Beall intends with this grievance procedure. Who will be chosen to evaluate the evaluators? What qualifications and knowledge will they have? How will they be appointed and what will assure their neutrality and expertise? What remedies will exist if fault is found with an evaluation? Will this body have the ability to impose sanctions, thereby driving up the cost of malpractice insurance, a cost which will ultimately be passed along to the consumers? Much remains unknown.

Litigious parents are the wealthy extreme

When I reported on this issue two weeks ago, I unwittingly dipped the tip of my pinkie finger into the lake of vitriol in which high-conflict child custody cases float. I was deluged with comments, most of them unpublishable because they contained slanderous comments about individuals involved in specific litigation.

I guess I should have expected this. After all, the parents who end up in high-conflict custody battles are the angriest and most litigious fraction of divorcing parents. The courts call upon psychologists and other experts to assist in only a tiny minority -- somewhere between 2 and 4 percent -- of the messiest and most complex cases. Many of the parents that psychologists evaluate are so consumed by pathological narcissism that they are incapable of seeing their role in damaging or destroying their own children.

An example of the extremes to which parents with the financial resources may go if unchecked is the case of Segal v. Lynch, in the news today. Moses Segal, a developer whom a court described as "an extraordinarily wealthy man" with a net worth of more than $100 million, sued co-parent Cynthia Lynch for allegedly alienating the couple's two children from him. In a potentially precedent-setting case, a New Jersey appellate court has ruled that a parent may sue for infliction of emotional distress, but only if the other parent's conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Segal did not meet that burden, the court ruled, dismissing the lawsuit under the parens patriae doctrine because of its potential to damage the children. As the New Jersey Law Journal reports:
The court described the case as a novel one, pitting 'the fundamental principles of a child's best interests against the right of a civil claimant to obtain compensation for his or her injuries from a tortfeasor.' The panel found the 'overarching force driving this civil action' was not the best interest of the children, who would be in the middle of a litigation 'tug-of-war' where liability would turn on showing [that] outrageous and malicious acts by Lynch 'severely compromised' Segal's bond with them. As key witnesses, they would be subjected to psychological examination and questions about what their mother and father said and how it made them feel, with their responses used by one parent against the other.
Segal's attorney said the father may appeal the ruling to the state Supreme Court.

In my own brief foray into high-conflict child custody work, I came to regard the professionals who were willing to stick it out with vengeful parents as practically saints. So, it is hard for me to fathom why a public servant such as Assemblyman Beall would want to target these professionals and the overburdened courts that rely on them. As I wrote previously, this is the polar opposite of the trend in other U.S. states, which over the past couple of decades have extended greater statutory protections to custody evaluators who are targeted by frivolous, manipulative and mean-spirited complainants.

Kudos to the Judiciary Committee for its wisdom in rejecting this dangerous proposal.

Recommended reading:

"Tearing the child apart: The contribution of narcissism, envy, and perverse modes of thought to child custody wars," by Michael Donner (a child custody evaluator, special master, and chair of the Ethics Committee of the California Psychological Association, Psychoanalytic Psychology, 2006

Graphics credits: (1) Kungfootv; (2) Oape (Creative Commons license)

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