!afcc %canewsletter! issue#12winter2015! #12 ...do!better.!!to!take!anystep,!we!must!...

AFCC-‐CA Newsletter Issue #12 Winter 2015

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AFCC-‐CA President’s Message

Page 3 Ten Reasons To Be A Member Of AFCC.

Page 4 The Uncertain Future Of Mediation Confidentiality In California

AFCC-‐CA President’s Message AFCC-‐ CA: The Big Tent for Discussing Conflicts about Child Custody

Some feel the Family Law system in the U.S. is broken. Fixing it is hampered not just by limited financial resources for the courts, but also by conflict about policies, laws and procedures. Especially in California, because of the size of the population and court system, any type of reform can seem daunting if not hopeless. We have had attempts such as Family Law 2000 and the Elkins Commission. Still, there are many who have ideas and energy and believe we can do better. To take any step, we must face the conflict of different ideas and interest. I believe AFCC should serve as a big tent for ways to resolve conflict, both within individual families and among the various professional and advocacy groups that are associated with Family Law custody disputes. The 2016 AFCC-‐CA Conference

brings together some of the nations leading minds on new models for Family Law and will tackle some of these conflicts.

The birth of AFCC in the 1970s sprang from the effort to resolve conflict between separating parents in a more sensitive way than contentious litigation. In California we pioneered mandatory mediation of custody disputes through communicating and identifying problems to solve together. The research on custody mediation shows it is possible for even very hurt and angry people with opposing views to come up with solutions that can work for children. Leading figures in AFCC-‐CA also helped develop neutral custody evaluations and Parenting Plan Coordination followed to aid in resolving custody conflicts when mediation did not resolve it. Even with these efforts, there has possibly been an increase in custody litigation over the years.

The conflicts between divorcing couples can get acted out among the professional system working with them. Australian legal scholar and mediator John Wade writes in the October 2014 Family Court Review about unintended consequences of new interventions and family court reforms and how consumer complaints, media sensationalism and the internet have contributed to increasing factions with passionate positions about Family Law issues. The success of mediation for divorcing couples can teach us something. Respectful communication and acknowledging each side’s point of view is vital for getting the various factions concerned about Family Law to work together to improve how families are served in our court system.

Mary Elizabeth Lund, Ph.D. AFCC-‐CA President

Page 5 AFCC-‐CA Annual Conference

Page 9 Endnote Bias: Critical Elements to Consider in Forensic Consulting & Expert Testifying

Co-‐Parenting Classes: What Parents Say They Learn

Page 12 California Legislature Heightens Standards for Admissibility of Child Custody Evaluations

Page 14 California Legislature Heightens Standards for Admissibility of Child Custody Evaluations

Page 16 Mike Kretzmer, Executive Editor AFCC California Newsletter

AFCC-‐CA Newsletter Issue #12, Winter 2015

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By serving as a meeting ground for discourse about highly conflicted views held by researchers, and professional and advocacy groups, AFCC-‐CA conferences do more than provide continuing education credits. They foster the respectful communication that can address the big social problems encountered by families going through separation and divorce. At its most basic, divorce is ground zero for gender wars. There has been conflict about research findings over parenting and importance to children of fathers and mothers, especially for babies and very young children. Joan Kelly gave the last presentation of her distinguished career on the very sensitive topic at the 2014 AFCC-‐CA conference. We have dealt with the struggle to find common ground for discussion of domestic violence and custody issues in our conferences. This year we address the conflict about the fundamental issue of whether family disputes over children should be resolved through litigation model with the same standards of civil litigation or some alternative process.

Probably nothing has more contentious than efforts to address different points of view about physical and legal custody of children when there has been domestic violence in a family. Take, for example, the 2007 Wingspread Conference, when the National Council of Juvenile and Family Court Judges and AFCC brought together a working group of thirty-‐seven experienced practitioners and researchers to identify and explore conceptual and practical tensions that have hampered effective work with families in which domestic violence has been identified or alleged. This led to Janet Johnston and Peter Jaffe presenting together at an AFCC-‐CA conference on a conceptual framework they could jointly endorse for physical and legal custody plans when there has been domestic violence. AFCC is following through on that work with a task force on Guidelines for Evaluators Examining the Effects of Intimate Partner Violence on Families: A

Supplement to the Model Standards of Practice for Child Custody Evaluation. Several members of that Task Force spoke at the 2015 AFCC-‐CA conference, demonstrating how they brought together custody evaluators, researchers, victims advocates, attorneys representing parents, judges, and others on this task. The product that this diverse group has produced has the potential of moving the field forward.

In the 2016 AFCC-‐CA conference we bring together nationally known speakers who address a continuing, underlying conflict in Family Law about whether the resolution of custody disputes should be through the traditional legal process using litigation or whether hybrid or alternative dispute resolution processes should be used. Increasing costs, budget cuts, and public dissatisfaction with the current system demand that we face this difficult issue. Professional identities and ethics of attorneys, mental health professionals and mediators are challenged when questioning a system many have invested years of their lives in. It probably takes someone of the stature of Rebecca Kourlis, a former Colorado Supreme Court Justice and head of the Institute for the Advancement of the American Legal System to ask the hard questions about whether our current system serves separating families.

President’s Message cont. from page 1)

Barbara Babb, one of the best-‐known legal scholars on Family Law court processes challenges the model of traditional adversary process for divorce by advocating “Therapeutic Jurisprudence.” Marsha Klein Pruett will present on an out of court dispute resolution model, which calls attention to whether cases should be resolved in public or private models.

In California, we have conflicts large and small about ways to provide more efficient and accessible resolution to custody disputes while also taking into account parents’ right to privacy and advocacy. California has led the way in trying to make custody evaluations neutral and objective, but that effort may have led to evaluations also becoming too time consuming and expensive for most of the population. With the increasing use of 733 experts to critique evaluations, there often is intense litigation over the evaluation itself resulting in a battle of experts for cases in which there is money to fuel it. In our 2015 conference, judicial officers speaking at a plenary discussed how custody evaluations have become too costly and time consuming. Some judicial officers say that they have stopped ordering evaluations because of the cost and prolonged litigation following them. Judicial officers call for ways to get neutral, behavioral information about a family which can

“They foster the respectful communication that can address the big social problems encountered by families going through separation and divorce. ”


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President’s Message cont. from page 1)

help their decisions, yet the mandate of Family Court Services is to provide mediation, not evaluation, services.

There is continuing conflict in California over whether we should have confidential mediation or Child Custody Recommending Counselors who provide information to the judge. There are passionate positions on each side of the argument. Many argue that protecting the confidentiality of mediation is central to its effectiveness. There is also criticism of using CCRCs from both legal and mental health experts. Input from a Child Custody Recommending Counselor is not held up to the exacting standards of custody evaluations. Future AFCC-‐CA conferences should tackle the thorny issues about getting information to judicial officers in a timely, cost-‐effective manner while also protecting confidentiality and the civil rights of the parents and the best interests of children.

Those of us who attend the 2016 AFCC-‐CA conference will hopefully find something in the discourse to move the field forward in California. AFCC-‐CA, as an independent, non-‐profit organization, is a voice outside of the public court system with no official power or authority to implement change, but we have the power of ideas, which is a first step. Through our conferences we bring to California not only the most creative thinkers in Family Law, but also the big tent for speaking and listening respectfully to each other and working together to make the Family Law system better for the separating families who need our help. ww

AFCC California Chapter has finalized the program for our exciting 2016 annual conference. The conference will be held on February 19-‐21, 2016, at the InterContinental Mark Hopkins on Nob Hill in San Francisco, California. We have been able to put together a terrific program with institutes, workshops and plenaries that will be of compelling interest to all family law professionals. We are especially excited about the four all-‐conference plenary sessions. They include addresses by Barbara Babb of the University of Baltimore Law School talking about Therapeutic Jurisprudence, and Marsha Kline Pruitt, PhD who will speak to attendees about the innovative "Honoring Families" program. In addition, there will be distinguished panels highlighting the newest work on

step-‐up parenting plans for young children, and an interdisciplinary roundtable discussion on addressing best interests of special needs children in the family law arena.

As always, we provide venues for obtaining mandatory continuing education in domestic violence research & law. And there will also be follow-‐up on the evolving mentorship program spearheaded by AFCC-‐CA.

It's going to be an exciting program. Go to our website or pick-‐up a brochure. Take advantage of the early registration discount, and most importantly ........ plan to be there! ww

AFCC CALIFORNIA CONFERENCE February 19-‐21, 2016 San Francisco, California

REGISTER NOW!


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I'm a member off AFCC. Have been for about a quarter century. Can't imagine doing my job well without it. I'm also Secretary of the parent organization. If you're a family court bench officer you should also be a member. Here's why:

1. It's on a mission I think you'd like.

AFCC is an interdisciplinary, international association of professionals dedicated to improving the lives of children and families through the resolution of family conflict. AFCC promotes a collaborative approach to serving the needs of children among those who work in and with family law systems, encouraging education, research and innovation and identifying best practices.

2. You'll get current information about children in context.

What is different about a 12 year old whose parents just separated from one whose parents have not? What's the same? What is the range of "normal" behavior for 12 year old children and when is behavior of s 12 year old s warning sign of a serious problem? These are questions for which you will get real, usable answers at AFCC.

3. You'll get information about resources you need.

When all the evidence shows the need for therapy, where can that therapy be found? What kind of therapy? What's the difference between different types of therapy? Might an unclear or non-‐specific order actually harm a family?

What about parenting classes or co-‐parenting classes? What's the difference? Is an on-‐line class appropriate for a particular family or will only an in-‐person program do? Can this family afford it and can their schedules accommodate it? What is the curriculum for a parenting class?

Nuanced answers to the questions are available through AFCC.

4. No judge is an island.

Because of the ethical prohibition from discussing pending cases, judges may feel somewhat isolated when trying to determine the "best interests of children" in cases before us, a concept only vaguely defined in the law. AFCC offers programs exclusively for family court bench officers to allow them to meet and share ideas and concerns openly with each other.

5. Meet the movers and shakers.

AFCC offers the opportunity for researchers and court program innovators to meet, explain and develop

their work. Have a question about attachment theory or how the MMPI-‐2 relates to parenting? Ask the national and international experts on those things. You'll find them at AFCC meetings and in the membership directory.

6. Be the movers and shakers.

AFCC regularly develops task forces to come up with model standards and guidelines for best practices. These include models for conducting child custody evaluations, engaging in court-‐involved therapy and serving as a parenting plan coordinator. Those task forces include mental health professionals, family law attorneys and family court bench officers so that different perspectives are considered. You can be part of the creation of something important through your participation and contribution to the work of these task forces and similar committees. 7. Cross-‐pollination.

AFCC members come from different disciplines all dealing with the parenting of children: lawyers, judges, researchers, therapists, evaluators, educators, mediators. Seeing the same issue from many perspectives will make you a better decision-‐maker.

8. Learn how to work with challenging personalities.

If you have not yet dealt with parents who have significant mental health issues you are very new to family court. Welcome! If you think people appearing before the court with important issues at stake will be on their best behavior you may be in for a surprise.

AFCC is s place where judges will learn to identify which behaviors do and do not indicate significant mental health issues, which behaviors have been identified to have little or great impact on parenting, and which judicial responses to such behaviors are effective or ineffective. 9. Travel to exotic locations.

It must be said: AFCC conferences are often fun. The California chapter's meetings have been held in San

Ten reasons every family court bench officer should be a member of AFCC.

By Dianna Gould-Saltman


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Upcoming Events!

AFCC-‐CA Annual Conference Intercontinental Mark Hopkins February 19-‐21, 2014 San Francisco, California

THE UNCERTAIN FUTURE OF MEDIATION CONFIDENTIALITY IN CALIFORNIA

Forrest S. Mosten CFLS, Elizabeth Potter Scully CFLS, and Hon. Thomas Trent Lewisii

A principal purpose [of mediation confidentiality] is to assure prospective participants that their interests will not be damaged, first, by attempting this alternative means of resolution, and then, once mediation is chosen, by making and communicating the candid disclosures and assessments that are most likely to produce a fair and reasonable mediation settlement.

-‐-‐Cassel v. Superior Court (2011) 51 Cal.4th 113, 132-‐133.

Confidentiality is a core principle of mediation. Confidentiality, in fact, is expressly identified as the prime concern of the Uniform Mediation Act (“UMA”). The underlying premise is that the effectiveness of mediation depends on the candor of the participants. As the drafters of the UMA put it, “Parties engaged in mediation, as well as non-‐party participants, must be able to speak with full candor for a mediation to be successful and for a settlement to be voluntary.” The UMA’s central rule is that a mediation communication is confidential, and if privileged, is not subject to discovery or admission into evidence in a formal proceeding [see Sec. 5(a).] In proceedings following a mediation, a party may refuse to disclose, and prevent any other person from disclosing, a mediation communication.

California has not adopted the UMA; instead, in 1997 (pursuant to the recommendations of the California Law Revision Commission) the legislature enacted the existing mediation confidentiality scheme,iii which is arguably the world’s most protective and goes far beyond even what the UMA provides. The provisions of California Evidence Code Section 1119 et seq. create an absolute bar to admissibility of covered mediation communications in subsequent civil and administrative actions. Unlike a mere evidentiary privilege, which can be waived, mediation confidentiality operates to preclude admissibility of words exchanged and documents generated for mediation, and even makes agreements made in mediation inadmissible unless specific statutory requirements are met (i.e. the magic

Francisco, Los Angeles, Santa Monica and Sonoma, just to name a few. The parent organization's conferences have recently taken place in New Orleans, Toronto, Orlando, Washington, D.C., and San Antonio. I have found that it's easier to learn in a place I enjoy. 10. Love your job when you feel competent to do your job. Child custody conflicts can be painful for all involved, even the decision-‐maker. Nobody wants to see children in pain or embroiled in conflict and there is great satisfaction in helping families get through the hard times and on to living their lives.

When you feel ill-‐equipt to make such high stakes decisions it can seem like s terrible job. When, however, you feel you have the tools you need to make these decisions it's a job you can look forward to every day knowing that you can be instrumental in bringing some resolution to conflict in the lives of families. AFCC is a place you can find those tools. ww

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Join AFCC Today!

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words are used.)

There are many reasons why protection of confidentiality is so important. Brainstorming options is an essential component of mediation, and the willingness to share new ideas requires a sense of safety. If participants feel as though admissions, positions, and proposals made in mediation can be used against them later, this will chill the kind of free, honest communication which is necessary to feed the mediation process. Interest-‐based negotiations, furthermore, require that participants identify their underlying needs and concerns honestly. Posturing, to the extent it masks interests, runs directly counter to the goals of mediation. In Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928 (2nd Cir., 1979), cert. denied, 444 US 1076, 62 L.Ed.2d 758, 100 S.Ct. 1093 (1980), the court noted, "If participants cannot rely on the confidential treatment of everything that transpires during these sessions then counsel of necessity will feel constrained to conduct themselves in a cautious, tight-‐lipped, non-‐committal manner more suitable to poker players in a high-‐stakes game than to adversaries attempting to arrive at a just resolution of a civil dispute." Id. at 930. Finally, confidentiality implicates the neutrality of the mediator. The specter that the mediator might someday be called as a witness in court on behalf of one party against the other threatens the mediator’s neutrality, and parties might stifle their communication defensively in anticipation of such an eventuality.

One Past Effort To Limit Mediation Confidentiality

Due to the efforts and support of AFCC and others concerned about the welfare of divorcing families, particularly the children, California enacted legislation requiring parties to participate in court-‐connected mediation prior to any

hearing on parenting issues. (Family Section 3177 reads: Each superior court shall make a mediator available. The court is not required to institute a family conciliation court in order to provide mediation services.

The gold standard of mandatory mediation started in Los Angeles Superior Court’s Conciliation Court, through the efforts of Hugh McIsaac (former Director of Family Court Services) and others. The essence of the Conciliation Court was absolute confidentiality, for all of the reason discussed above. Family Law Section 3177 underscores this principle: Mediation proceedings pursuant to this chapter shall be held in private and shall be confidential. All communications, verbal or written, from the parties to the mediator made in the proceeding are official information within the meaning of Section 1040 of the Evidence Code.

In an effort to meet the concerns of judicial officers for increased efficiency and information to assist in deciding contested custody and visitation matters, over half of the counties in California established local rules to permit mediators in court-‐connected mediation to disclose communications made by the parties in mediation and make custody and visitation recommendations to the court. In other words, counties made the mandatory custody and visitation “mediation” non-‐confidential. i

The California Supreme Court has repeatedly and unambiguously reaffirmed mediation confidentiality (Foxgateiv and Casselarev the key decisions). These decisions were inconsistent with the non-‐confidential nature of the mandatory custody and visitation mediation occurring in nearly half the counties in the state. In an effort to keep the recommending aspect applied in so many counties, yet preserve mediation confidentiality

inviolate in accordance with clear statutory and case law, the legislature amended Family Code Section 3183(a) effective January 1, 2012 to provide that if a child custody mediator is authorized to submit a recommendation to the court, the process must be referred to as “child custody recommending counseling” and the mediator who makes those recommendations must be referred to as a “child custody recommending counselor.” The theory being, of course, that if a process is really mediation, it must be confidential, and if it is not confidential, it must be something else.

Recent Rumblings To Limit Mediation Confidentiality

Since Cassel, California has been a beehive of activity for efforts to limit mediation confidentiality. In the family law context, there have been two primary lines of attack.vi First, some argue that the strong public policy in favor of financial disclosure between spouses should trump mediation confidentiality, such that a motion to set-‐aside a mediated marital settlement agreement on grounds of misleading or incomplete financial disclosure (which


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“Parties engaged in mediation, as well as non-‐party participants, must be able to speak with full candor for a mediation to be successful and for a settlement to be voluntary.”

the existing mediation confidentiality scheme renders a practical impossibility) would be viable. Second (and this is not limited to family law), others argue that mediation confidentiality should not shield attorneys from malpractice or disciplinary claims arising from services rendered in the mediation context. The California legislature has directed the California Law Revision Commission to analyze “the relationship under current law between mediation confidentiality and attorney malpractice and other misconduct . . . .”vii

The Court of Appeal addressed the financial disclosure issue in Lappe v. Superior Court (2014) 232 Cal.App.4th 774. In Lappe, the Court of Appeal held that because mandatory financial disclosures statements (Preliminary and Final Declarations of Disclosure) are required in every dissolution of marriage case, regardless of whether the parties mediate, and are therefore not “prepared for the purpose of, in the course of, or pursuant to” mediation within the meaning of Evidence Code Section 1119 (b), they fall outside the scope of mediation confidentiality protection and are admissible in a subsequent action to set aside a mediated agreement. Although the court hastened to note that its ruling

does not represent the elevation of financial disclosure over mediation confidentiality (“we are not crafting an exception to the mediation confidentiality statutes”), the result of this decision does in fact represent a crack in the momentum for absolute mediation confidentiality.

Following Lappe, the San Francisco Bar Association proposed Bar Resolution 09-‐03-‐2015 for consideration at the State Bar Conference in September 2015. This resolution sought to expand Lappe by amending California Evidence Code Section 1120 to create an exception to mediation confidentiality for communications between spouses and Registered Domestic Partners that constitute a fraudulent breach of fiduciary duty. Due in part to vehement opposition by many bar associations and mediator groups, this resolution was withdrawn, but given the strong public policy in favor of full financial disclosure in family law actions, similar resolutions could and likely will be re-‐introduced in the future.

With regard to attorney malpractice and attorney disciplinary proceedings, efforts to limit mediation confidentiality are ongoing. In 2012, AB 2025 was introduced to amend Evidence Code

Section 1120 to permit: “The admissibility in an action for legal malpractice, an action for breach of fiduciary duty, or both, or in a State Bar disciplinary action, of communications directly between the client and his or her attorney during mediation if professional negligence or misconduct forms the basis of the client’s allegations against the attorney.”

This proposed bill was referred to California Law Revision Commission (CLRC), which is currently considering a recommendation to carve out an exception to mediation confidentiality for attorney malpractice or disciplinary proceedings. CLRC has for the moment deferred consideration of additional confidentiality exceptions, e.g. for mediators with California Bar Licenses or for fee disputes between mediation participants and their lawyers and/or mediators with California Bar Licenses. CLRC has also deferred consideration of proposals to eliminate or reduce the quasi-‐judicial immunity for mediators currently provided for in Howard v. Drapkin (1990) 222 Cal. App.3d 843.

Limiting or eliminating mediation confidentiality in any way would undeniably represent a sea change in California family law mediation. As Ron


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References

I. California Counties are free to adopt a non-‐confidential form of counseling where the family court services representative is available as a witness, but under changes in the law these recommending counselors are no longer called mediators for a very important reason-‐ namely avoiding the appearance of confidentiality when it is not.

II. This article is based partly on a seminar conducted in Los Angeles, San Ramon, and Carlsbad by the authors, Making the Most Out of Mediation and Crossover Litigation ( November 2015) produced by California Family Law Report.

III. Simmons v. Ghaderi (2008) 44 Cal.4th 570, 579.

IV. Foxgate Homeowners’ Association v. Bramalea California Inc. (2001) 26 Cal.4th 1 (holding the then-‐new act provides for “no exceptions,” and unqualifiedly bars disclosure of mediation communications, even those implicating bad faith conduct.)

V. Cassel v. Superior Court (2011) 51 Cal.4th 113 (holding that statutory confidentiality protections bar disclosure of communications between a mediation disputant and his own counsel, even if these occur outside the presence of the mediator or other disputants).

VI. This article is not intended to be a comprehensive study of this issue but only an update of some of the key issues and recent developments.

VII. www.clrc.ca.gov/K402.html

VIII. Flyer by Ron Kelly entitled “Do you Want to Protect Mediation Confidentiality?” ([email protected]).

IX. Judge Susan Finlay, October 2, 2015 email to Barbara Gaal.

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Judge Thomas Trent Lewis is the Immediate Past President of the California Chapter of AFCC. He was Assistant Supervising Judge of the Family Law Department of Los Angeles Superior Court from 2011 and currently serves in that court’s long cause handled long cause family law trials. In 2015, Judge Lewis was presented with the Spencer Brandeis Award, the Los Angeles County Bar’s highest honor.

Elizabeth Potter Scully, CFLS, is a partner in the Los Angeles family law firm, Jacobson, Potter, and Shebby and served on the Executive Committee of the Family Law Section of the Beverly Hills Bar Association. She teaches Mediation and Negotiation at UCLA School of Law.

Forrest S. Mosten, CFLS, has been in private mediation practice since 1979. He also serves as a non-‐litigation family lawyer who offers limited scope representation for clients in mediation and self-‐ represented litigants. He is an Adjunct Professor of Law at UCLA School of Law where he teaches Mediation, Family Law Practice: A Non-‐Litigation Approach, and Lawyer as Peacemaker.

Mr. Mosten and Ms. Scully are co-‐authors of the Complete Guide to Mediation, 2nd Edition (2015) and the Lawyer’s Guide to Unbundled Legal Services (forthcoming, 2016) published by the ABA Section on Family Law.

Kelly, an expert advisor to the California Law Revision Commission in the study and drafting of the existing statutory scheme, notes, “Predictable confidentiality will no longer exist.”viii Absence of predictable confidentiality will impact whether mediators, attorneys and clients choose to participate in family law mediation. It will impact the informed consent that must be obtained by parties who do opt to participate. It may impact mediation costs, success rates and, ultimately, court calendars. Some mediation confidentiality proponents go so far as to argue that “Mediation, as we know it, will not survive this change.”ix

It is also apparent that all stakeholders must make their voices heard now. We know that silence or perceived apathy in the face of change can influence judicial and/or legislative action. For example, the California Supreme Court, in its controversial recent ruling on date of separation which drew heavily on an earlier case called Marriage of Norviel, stated: “There appears to have been no reaction from the bench or bar subsequent to the Norviel decision contending that the Norviel majority had introduced a sudden new rule that was legislatively unintended and unworkable. No movement to promote the position of the Norviel dissent seems to have materialized.” Marriage of Davis (2015) 61 Cal.4th 846. One way to be heard is to send comments to Chief Deputy Counsel Barbara Gaal at [email protected]. To obtain background, related documents and ongoing updates, interested parties can also subscribe to the Law Revision Commission’s study at http://www.clrc.ca.gov/K402.html#Subscribe.

Conclusion

We find ourselves at a watershed moment for California mediation confidentiality. California’s confidentiality scheme, which is as longstanding as it is highly protective, is currently being challenged in

fundamental and far-‐reaching ways. Proposed changes would have tremendous consequences for every aspect of California family law mediation. Interested practitioners need to inform themselves about the proposed changes and speak up urgently if they wish to be heard. By the time this article goes to print, there may be considerable new developments in the struggle over the scope of mediation confidentiality. Stay tuned. ww


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In 2013, my colleague and friend, Dr. Robert Simon, and I wrote in our book3 that we believed cognitive biases to be the greatest risk to forensic neutrality and objectivity in child custody and other forensic work. Many parents often feel that the custody evaluator is biased when a report comes in against that parent’s wishes. It is common for litigants and their attorneys to believe that the evaluator did not like the client, did not utilize a neutral process, or reached conclusions that are not supported by the data. Because the outcome is unfavorable, and because the process may have been suspect, the belief is that the evaluator must have reached this unfavorable conclusion because of bias. Evaluators also reach conclusions that are displeasing to a litigant based upon a solid and well integrated piece of work. However, bias is perhaps the greatest threat to the integrity and probative usefulness of forensic work products. Understanding what bias is and is not, understanding

various types of bias and understanding how bias can be detected in child custody evaluations is fundamentally important.

The numerous practice guidelines and Rules of Court that I know of each have an admonition that tells evaluators to avoid the impact of biases in child custody work4. Custody evaluators are not advocates for one party, nor are they advocates for a particular outcome. Evaluators are advocates for a thorough and scientifically supported process that gathers comprehensive data of diverse nature, tests various hypotheses, and reaches conclusions that are supported by the data gathered. In order to accomplish this task, evaluators must avoid letting biases of different kinds enter their reasoning. In this article, I will briefly discuss the concept of bias in child custody work, how it surfaces, and the potential impact in different types of cases. Part 2 will focus on ways to spot this bias in child custody evaluations.

The Risk of Heuristics and Cognitive Bias in Child Custody Work

Although there are many different forms of bias, such as personal biases, e.g., gender bias, or professional bias, e.g., relocation or overnight bias, I’m going to focus on cognitive bias for this article. In recent years, there has been ongoing research related to judgment suggesting that clinicians and others are prone to distortions based on various cognitive biases, attribution effects, and similar heuristics that lead to speeding up the process of reaching conclusions. These types of bias are more subtle, and I believe they are the type most likely to influence the work of child custody evaluators, especially those who often are seen as doing good work and having proper procedures.

Heuristics are defined as simple, efficient rules that describe how people make decisions or reach conclusions when faced with complex problems. Certainly the nature of problems that occur in child custody disputes are complex and the factors that must be considered and weighed in making decisions about the custody of children is highly complex. Kahneman5 identified that people use a variety of heuristics to solve complex problems, often creating a shortcut in logic and reasoning, observing that people tend to use heuristics that are overly simple because of the difficulty of complex heuristics. Some heuristic shortcuts lead us to solve complex problems by focusing on simple issues, or only part of the problem, and others lead us to ignore some of the information we have to reach our solutions.

In addition to heuristics, Chabris and Simons6 observed that humans tend not to see what we aren’t looking for. For example, is communities where pedestrians are more common, there are fewer accidents because drivers are looking out for pedestrians, whereas in communities where pedestrians are less common there are actually more accidents since drivers are not expecting

Bias: Critical Elements to Consider in Forensic Consulting And Expert Testifying1

By Philip M. Stahl, PhD, ABPP (Forensic)2


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to see them. In the same way, child custody evaluators who are focused on one element of the family dynamics, e.g., domestic violence or high conflict, might not even look at dynamics associated with other issues, e.g., quality and history of parenting, Gatekeeping, etc.

There are many examples of how these heuristics and cognitive biases, as well as blind spots, might operate in a child custody case. Potential heuristics or cognitive biases that are most common in child custody work can include:

Anchoring Heuristic �

With anchoring, the evaluator will overly rely on certain information during the evaluation process at the expense of other information. Once the anchor is “set”, there is a risk that other information is interpreted in a way that is consistent with that anchored information. The “Primacy Effect” is an example of a bias that includes the anchoring heuristic. The primacy effect is observed in situations where the data that we gather first affects the way we interpret and gather later data. The early data anchors our understanding of subsequent data.

Availability Heuristic

The Availability heuristic refers to the tendency to focus on what is most available in memory. Things that may increase this availability include data that is more vivid or unusual, or perhaps more emotionally charged. When something is repeated frequently, we tend to remember it more and even believe it more.

Confirmatory Bias

Confirmatory bias is the tendency for a custody evaluator, having formed an opinion or strong impression before completing all of the data

gathering, to start looking for certain data or evidence that supports the opinion or impression that has formed. Then, data that is collected is seen through the evaluator’s pre-‐conceived beliefs and used to support the preconceived opinion rather than the data being fully and neutrally evaluated. Data should be gathered in a systematic manner. When data is gathered in a selective manner or is perceived through a pre-‐fashioned lens, there is greater risk of being influenced by confirmatory bias. Confirmation bias leads to increased confidence in one’s findings, largely because the process of gathering data and data analysis was not scientifically grounded and undertaken in a forensically neutral manner.

Recency Bias

Recency bias is the cognitive bias that exists by focusing on the most recent data one has heard and reaching conclusions based on that data. The opposite of Primacy bias noted above, there is a tendency with Recency bias to de-‐emphasize data gathered earlier in the evaluation process and emphasize the data gathered towards the end of the evaluation process.

Stereotyping

With stereotyping, the evaluator is affected by characteristics of the individual being evaluated rather than by

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the data being collected. For example, when Parent A appears to be histrionic and over-‐reactive, the evaluator simply makes an assumption of Parent A’s claims and allegations are the result of their histrionics and gives little weight to data that appear to support the allegations being made by the parent. This is often consistent with confirmatory bias as well.

Data Gathering Bias

I frequently notice that some evaluators will believe more in some types of data than others and will have greater faith in one part of the process, giving greater weight to information obtained via that procedure. For example, if the evaluator highly believes in his capacity to observe healthy parenting behavior, he may give greater weight to his observations than other collected data. Similarly, some evaluators have great faith in the value of psychological testing to support conclusions about parenting and custody. Finally, other evaluators might believe that they can determine credibility on the basis of their interviews with the parents.

Research Bias

There is a risk that custody evaluators will use research to support a pre-‐conceived opinion. I often see report narratives in which evaluators generically describe that “research suggests” a particular thing when formulating opinions and recommendations at the conclusion of an evaluation. They do so without providing citations to the research being mentioned or without describing research that might support a different outcome. This regularly occurs in relocation-‐related evaluations.

“Truth Lies Somewhere in the Middle” Bias

Many evaluators and judges, in particular those who are at risk for burnout because they have worked in

“Heuristics are defined as simple, efficient rules that describe how people make decisions or reach conclusions when faced with complex problems.”


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the system for so long, have a greater tendency to exhibit this bias. There is a tendency to perceive that parents in conflict over the custody of their children make an equal contribution to that conflict. While that situation is seen in some high conflict situations, there are other instances in which one parent drives most of the conflict and the other parent tends to be more reactive to that conflict. This “truth lies somewhere in the middle” bias prevents evaluators and judges from recognizing the unique contributions of each parent to the conflict. However, these unique contributions to the conflict are likely to be an important and relevant factor to consider in a given case, particularly when determining the specifics of a child-‐sharing plan. Assigning equal blame to both parents is a mistake when the responsibility for different components of the conflict are more likely caused by one parent rather than the other parent.

“For the Move” or “Against the Move” Bias7

From my perspective, many child custody evaluators appear to have one of these two points of view; they either see relocation as something to be avoided at all costs or they tend to be in favor or relocation by a primary custodial parent. Those who tend to be pro-‐relocation take the position that a custodial parent who wishes to move should generally be allowed to move as long as the custodial parent has a legitimate reason for moving and is not attempting to interfere with the access rights of the other parent. Evaluators might bring a unitary approach and conclude that this parent can move with the child if they determine that one or the other parent is “the psychological parent” or primary custodial parent. They may also conclude that the move should be permissible after determining that there is a legitimate reason for moving or that there is no evidence of interference with the other parent’s

(Continued)

access. While the laws relating to parental relocation vary jurisdictionally (there are many states in which case law or statutory law supports such a presumption in favor of moving), there is no evidence in the psychological literature to suggest that it is helpful or appropriate for psychologists to have such a presumptive belief in relocation cases. There is no research suggesting that because a parent is happy following a relocation that the children will automatically be happy and adjust to the move.

Conversely, there are many custody evaluators who perceive that it is a parent’s responsibility to stay near the other parent in order to preserve the child’s access to the other parent and the involvement of both parents in her life. While there is research data to support the belief that children derive a benefit by having both parents’ active involvement in their lives8, extrapolating that data to support a presumption against moves confounds the issue. There are many circumstances in which a move is both legitimate and justified, whether for academic, economic, or other personal/family reasons. In those cases, a parent is going to move, with or without the child. In those� circumstances, it is incumbent on evaluators and judges not to confuse the preference and value for shared co-‐parenting that exists in some of the research and some statutory laws with a presumption that moves will automatically harm children.

Conclusions

This brief article has addressed the many heuristics that potentially impact the work of child custody evaluators. Part 2 will focus on how to review a custody evaluation report and consider whether or not the evaluator might have been blind to critical issues or were affected by one or more heuristics, leading to missing data or an over-‐simplified analysis of the issues. ww

References 1. First of two parts, this article focuses on the nature of cognitive biases and Part 2, which will focus on how to observe if bias has potentially interfered with an evaluation will follow in a future newsletter.

2. Dr. Stahl is a Board Certified Forensic Psychologist, licensed in California, Arizona, Hawaii, and

Michigan. He is a former Board member of AFCC, as well as the CA and AZ chapters and is a regular speaker at AFCC meetings across the country. When not speaking and writing, Dr. Stahl serves as a consultant and expert witness, as well as a court-‐appointed child custody evaluator throughout North America.

3. Excerpted and modified from Chapter 4, Stahl, PM and Simon, RA (2013). Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony, Chicago, IL: Section of Family Law of the American Bar Association. For more information on this topic, please see the entire chapter.

4. See e.g., CA Rule of Court 5.220, APA Guidelines, AFCC Model Standards, AACAP Guidelines

5. See e.g., Kahneman, D., (2011). Thinking Fast and Slow. New York: Farrar, Straus and Giroux, and Tversky, A. & Kahneman, D. (1974). Judgment under Uncertainty: Heuristics and Biases, Science, 185, 1124–1130]

6. See e.g., Chabris, C and Simons, D, The Invisible Gorilla: How our Intuitions Deceive Us, Harmony, 2011

7. See Stahl, PM, “Avoiding Bias in Relocation Cases”, Journal of Child Custody, 3, 3/4, 109-‐124.

8. See e.g., Kelly and Emery, 2003


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Despite a rough start and some uneven experiences over five classes, the results of 66 evaluations from co-‐parents who completed our Parents Together for Children (PTC) program in Pasadena between September 2014 and June 2015 were encouraging. 70% of the parents (46 of 66) endorsed they strongly agreed (31 = 47%) or somewhat agreed (15 = 23%) that their relationships with their co-‐parents would go more smoothly as a result of what they learned in their class. 12 parents (18%) endorsed they neither agreed or disagreed; 2 parents (3%) somewhat disagreed; and 6 parents (9%) strongly disagreed. However, while the number of parents, 12 to 15, in each class was similar, their levels of optimism after they finished classes varied considerably. At the high end, 13 of 14 parents (92%) from one class (71% strongly agreed and 21% somewhat agreed) anticipated their relationships would go more smoothly. At the low end, in another class of 14 parents, 7 parents (50%) anticipated better futures (29% strongly agreed and 21% somewhat agreed).

Our first class in September 2014 had a particularly ominous start. It included 12 parents, 5 sets of child-‐related, heterosexual co-‐parents, and a non-‐related mother and father. Several of the related co-‐parents, as is often the case, strongly resisted being in the same class. One father filed a restraining order against his co-‐parent the week before the class started. Another father contacted DCFS a couple days before the start of class complaining that their daughter was exposed to domestic violence in her mother’s home, and a DCFS CSW showed up at the end of the first class to interview them (the referral was eventually determined to be

unfounded). Per a recent court order, the mother of a third couple was only allowed monitored visitation with their children due to Family Court findings of alienating behavior and non-‐compliance with orders (I had opportunity to read some of the Family Court transcript and it appeared that one of this mother's offenses was that she complied with a DCFS caseworker's recommendations that conflicted with Family Court orders). Though the Family Court ordered both of these parents to take the class together and work earnestly to improve their co-‐parenting, initially, the monitor who supervised mother's visitations, supported by father’s counsel, would not allow the mother to complete homework assignments with their children that were specifically intended to help their children feel less engaged in or impacted by their parents' conflict. Finally, the children of a 4th couple were estranged/alienated from their father and though they complied with the visitation orders they did not speak to or interact with him or his family when they stayed with him.

Like many co-‐parents ordered to classes, this group showed up looking like prisoners of war. Their attorneys had discouraged them from talking to the other parent, and/or their judge ordered them to only communicate by Our Family Wizard. Some came to class informed by their mental health professional that their co-‐parent was personality disordered, narcissistic at least, borderline or psychopathic at worst, and that it was futile at best or even dangerous to communicate directly with each other. Their resistances to engaging each other constructively was often inadvertently intensified by the professional counsel or court orders

they received. However, despite their ominous start:

• 11/12 (92%) parents indicated all of the discussions, videos, class exercises and homework were helpful, mostly very helpful

• Almost all parents indicated that hearing other parents’ conflicts and experiences, discussing the impact of their conflicts on their children, practicing effective language, critiquing their e-‐mail communications with each other, and practicing awareness and rational control of their negative emotions were helpful, mostly very helpful

• More important and more modestly, 7/12 parents (58%) endorsed that things might go more smoothly with their co-‐parent as a result of what they learned in class

• It was also encouraging that two of the four couples that started ominously also anticipated a smoother future with each other (however, the other two did not).

Parent evaluations from this class and the year are not atypical, and are consistent with most client satisfaction surveys and more rigorous outcome studies that have supported the positive impact of divorce and co-‐parent education programs. A recent meta-‐analytic study of 19 court-‐affiliated divorcing parent programs that included treatment and no-‐treatment control groups and independent outcome measures of subsequent co-‐parent behaviors or child welfare found an overall, positive and moderate size effect indicating that “those who participated were about 50% better off in terms of program outcomes

CO-‐PARENTING CLASSES: WHAT PARENTS SAY THEY LEARN

Albert R. Gibbs -‐ Co-‐Parent Solutions


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compared to those who did not participate, similar to positive outcomes for general psycho-‐educational parenting programs and substance abuse prevention programs” (Fackrell, T. A., et al., 2011).

While client satisfaction surveys do not measure actual outcomes and cannot answer the ultimate questions, i.e. did a specific co-‐parenting class actually result in less conflict or healthier co-‐parenting between the participating parents, they can provide useful information regarding what type of focus co-‐parents' endorse as helpful, and insight about what contributes to an effective working or therapeutic alliance with custody litigating parents, which is often more challenging than with non-‐litigating clinical family populations. Over the year, our PTC parents endorsed that the most helpful structured discussions they engaged in were:

• the impact of parental conflict on their children

• encouraging their children to love both parents

• advantages of brief, informative, polite and solution-‐focused co-‐parent communication

• importance of keeping perspective and control of their negative emotions

Practicing and critiquing their e-‐mails were endorsed as the most helpful homework assignments and class exercises, followed closely by a Letting Go of Grievances and Blame class exercise, and positive parent-‐child and co-‐parent communication assignments. Additionally, parents who reported the class helped their relationships did not think they could have benefited as much from an on-‐line program, as they considered their discussions and practice with each other significant to their positive outcomes.

PTC is a private practice, fee-‐for-‐service descendent of the Los Angeles County Conciliation Court's Parenting Without Conflict (PWC) program, an unfortunate

victim of budget cuts that for several years was offered free to parents. While PTC has continued PWC's encouragement of related co-‐parents attending classes together, and emphasis on practicing effective, verbal conflict resolution skills, focus has grown to include practicing e-‐mail communications, affect-‐regulation skills and positive parenting. The program is based on an empirically supported model of healthy co-‐parent functioning, including effective problem-‐solving and communication, consistent role functioning, constructive emotional responsiveness and involvement, and positive parenting and behavior control. The program is highly structured starting with a signed contract about class goals, expectations and rules, and parents are assigned where they sit in class (related co-‐parents are seated a constructive distance from each other). Parents are disposed to venting with each other and blaming, which does not solve problems, and is usually counter-‐productive. In PTC classes, parents are required to discuss their personal concerns through structured exercises and homework assignments. PTC has found that structure is essential for maintaining a safe emotional and physical environment in classes. Structured assignments and exercises are also important for maintaining parents' engagement with each other and class exercises at constructive levels of emotional intensity; too much intensity stimulates regressive anger and defensiveness; however, parents disengage when there is too little intensity.

Nonetheless, as class leaders, structure, curriculum and focus of our PTC classes were rather consistent over the year (there were small variations of class focus responsive to different themes that were more prominent in different classes), it is quite reasonable to speculate that much of the differences in positive and negative class evaluations were a factor of pre-‐existing differences among parents. While they also rated the content of classes very favorably,

evaluation comments by parents who strongly disagreed that the class was helpful emphasized that either their co-‐parent did not make a sincere effort to use the class or had mental health or personality disorders that the class could not or did not influence. We have become impressed that a critical strength of successful co-‐parents and parents who report benefit from the class is their ability when they are frustrated with their co-‐parent to calm themselves, take perspective before acting, and consider compassionate attributions about their co-‐parent and consider multiple and low threat options for handling current problems.

For some parents there were realistic reasons for staying vigilant and/or keeping a safe distance from a toxic co-‐parent, and limited contact and/or parallel parenting plans may remain the best interest custody plan for their children. However, some parents capable of healthier co-‐parenting appear to resist because of apprehension about losing perceived advantages in a "high-‐conflict" relationship, i.e., a parent who does not want to risk losing primary physical custody. There may also be significantly different dynamics involved in sharing children among couples who were never married or committed when their children were conceived, a question future parent survey may shed light on. Nonetheless, while more research including control group designs is definitely needed, available evidence indicates that court ordered classes remain one of the most cost/effective, evidence-‐based interventions for this population. For more information about Parents Together For Children, visit our website, www.coparentsolutions.com.

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* Fackrell, T. A., et al., How Effective Are Court-‐Affiliated Divorcing Parents Education Programs? A Meta-‐Analytic Study. Family Court Review, Vol. 49, January 2011 107–119

http://www.coparentsolutions.com


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California Legislature Heightens Standards for Admissibility of Child Custody Evaluations Leslie Ellen Shear, CFLS, CALS*, IAML** custodymatters.com californiafamilylawappeals.com

*Certified Specialist in Family Law and in Appellate Law, State Bar of CA Board of Legal Specialization. ** Fellow, International Academy of Matrimonial Lawyers

Child custody evaluators who fail to fully comply with California Rules of Court, rules 5.220, 5.225, 5.230, 5.235 and 5.250 may find their work product excluded from evidence when new legislation comes into effect in 2016. Under In re the Marriage of Laurenti (2007) 154 Cal.App.4th 395, trial courts have the authority to require evaluators to refund the fees and costs advanced to child custody evaluators by the parties. Thus evaluators whose work product is excluded from evidence are likely to face Laurenti motions. Evaluations that are now in progress may face unexpectedly rigorous scrutiny when reports or testimony are offered into evidence next year. In light of the new legislation, evaluators, lawyers, reviewing experts, and judges are taking a closer look at the CRC requirements, and anticipating more challenges to child custody evaluations.

Child custody evaluations have been under increasing scrutiny and challenges in California for the past decade. The newly-‐enacted amendment to Family Code §3111 (SB 594, effective January 1, 2016, will require exclusion of some flawed evaluations from evidence. The new language reads,

A child custody evaluation, investigation, or assessment, and any resulting report, may be considered by the court only if it is conducted in

accordance with the requirements set forth in the standards adopted by the Judicial Council pursuant to Section 3117; however, this does not preclude the consideration of a child custody evaluation report that contains nonsubstantive or inconsequential errors or both.

California’s appellate courts have addressed cumulative and prejudicial errors by child custody evaluators in four published decisions -‐-‐ In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116; In re Marriage of Laurenti, supra; In re Marriage of Adams and Jack A. (2012) 209 Cal.App.4th 1543; and Leslie O. v. Superior Court (2014) 231 Cal.App.4th 1191. Seagondollar protected the right of a custody litigant to present the testimony of a reviewing expert, charged judicial officers with defining the purpose and scope of an evaluation, and required exclusion of an evaluation where the evaluator and minors’ counsel had material ex parte communications. Laurenti also charged family law courts with defining the purpose and scope of an evaluation in an appointment order, supervision of evaluators, and of the fees payable to a disqualified child custody evaluator. Adams and Leslie O. address exclusion of the evaluator’s report and testimony due to evaluator bias, and prejudicial errors by the evaluators under California Rules of Court, Rule 5.220.

Senate Bill 594 was introduced following the decision in In re the Marriage of Winternitz (2015) 235 Cal.App.4th 644 affirming a family court ruling that flaws in the evaluation process went to the weight and sufficiency of the evaluation, rather than admissibility. The Association of Certified Family Law Specialists (ACFLS) successfully sought publication of Winternitz. As co-‐chair (with Steve Temko, CALS, CFLS) of the ACFLS amicus committee, I explained the importance of the decision to in the publication request letter,

Just as there are no perfect trials, there are no perfect child custody evaluations. In most cases, evidence of deviations from best practices should go to the weight and sufficiency of the report and testimony, not to the admissibility. But Winternitz would be the first published case to affirm a trial court that admitted and weighed the child custody evaluation report and testimony together with the rest of the evidence presented. Most flaws in the procedures are not fatal – the Court does not consider the fact-‐finding and analysis of the evaluator in a vacuum. The parties present additional evidence, authority and argument that help shape the judge's consideration of the evaluation and the underlying case.

California has no published opinions addressing when flaws in a child custody evaluation go to the weight and sufficiency of the evaluator's report and testimony rather than to admissibility. Publication of the Winternitz decision will prevent the issue from being relitigated in California trial courts without guidance from the Court of Appeal. Challenges to the admissibility of child custody evaluation reports and testimony often cause delay in resolution of time-‐urgent issues affecting children, great expense for the adult litigants (often including the cost and delay of re-‐evaluation), and strain the limited resources of family law courtrooms.


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It is important for judges, lawyers and litigants to know that while the most egregious errors by custody evaluators call for exclusion of the evaluation evidence, most errors are addressed in the Court's consideration of the weight and sufficiency of the evaluation. Publication will promote wiser decisionmaking about which errors or omissions cause true prejudice to the litigants, and which can be considered with other evidence without "throwing the baby out with the bathwater." Consequently, the holding meets the publication criteria of rule 8.1105(c).

The Senate Floor Analysis sets forth the background for the new standard for admissibility of child custody evaluations,

In a contested child custody or visitation proceeding, the court may appoint a child custody evaluator to conduct a child custody evaluation if the court determines it is in the best interests of the child. Evaluations contain highly personal, sensitive, and confidential information. In most cases, an evaluation will consist of several interviews and may include psychological testing. Interviews are conducted with all adults involved with the child, including parents, stepparents, and sometimes other relatives who have a significant role in the child's life. Psychological testing provides an additional source of information that cannot be obtained through interviews alone. The testing may further demonstrate the family dynamics and expose any potential mental health or parenting problems. These reports can take six to nine months to complete and are generally paid for by the parties.

Although the evaluation may be delegated to a number of different types of experts, impartial objectivity is a non-‐negotiable requirement and

(Continued)

courts are required to make an inquiry if the facts reveal that an evaluator may be biased against one party. (See Marriage of Adams & Jack A. (2012) 209 Cal. 4th 1543, 1563.) In addition, because custody evaluators are not judicial officers, they cannot make binding factual determinations or decisions on a custody or visitation issue. At best, the evaluator's report is probative of relevant facts the court must consider and weigh along with all other evidence in the case. However, recognizing that evaluations are generally given great weight by the judge in deciding custody and visitation issues, the Judicial Council has adopted Rules of Court establishing uniform standards of practice for court-‐ordered custody evaluations. Additional standards regarding evaluator qualifications and testimony are prescribed by statute. (See Fam. Code Secs. 3110.5, 3115.) This bill seeks to ensure that evaluator reports are complete by prohibiting the court from considering a report that does not comply with minimum requirements under the law.

The public will benefit from this new legislation if it motivates evaluators to review their evaluation protocols, and bring greater rigor and scientific method to their evaluation work. Evaluators must regularly review the CRC requirements at intervals during each evaluation — together with their appointment orders and procedures statements. Similarly, lawyers, judges and evaluators are going to have to consider whether and when limited scope evaluations are sufficiently reliable to address the complexities of families and their life circumstances. That decision requires us to compare that limited reliability with the reliability of the evidence and analysis offered by lawyers and self-‐represented litigants without an evaluation. Lawyers, evaluators, and judges must develop stronger, clearer appointment orders

and procedure statements that provide a clear road map for all participants. This heightened level of care is apt to increase the time required, and hence the cost of evaluations. And the new standard for admissibility is a potentially powerful tool for litigants to challenge custody evaluations.

The legislation does not use the term “minimum requirements,” nor define “nonsubstantive or inconsequential errors,” leaving room for judicial discretion when ruling on motions in limine to exclude child custody evaluations. But the legislation sends a clear message to family courts that they are charged with a significant gatekeeping role. The phrase “nonsubstantive or inconsequential errors” should be read in harmony with the California Constitution’s requirement that only “prejudicial” judicial errors warrant reversal. Where the error by the evaluator is not likely to change the outcome of the underlying case, it should fall into the category of “nonsubstantive or inconsequential errors.”

Evaluators and reviewing experts are going to be asked to address whether errors in the evaluation process are sufficiently serious that they are apt to change the outcome of the case. In many cases, the report contains data and analysis that is useful to the Court’s independent fact-‐finding and judgment when considered with other evidence and analyses. Clearly the Legislature wants to remind judges not to just outsource custody decisions to child custody evaluators. But the testimony of the evaluator (as we see in Winternitz) and of testifying experts can assist the trial court in deciding what, if anything, in the evaluation can contribute meaningfully to the court’s understanding of the risks and benefits of alternate parenting plans. No one likes being the subject of peer scrutiny — including evaluators. However, it is important to bear in mind that in many


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cases, the reviewing expert advises counsel and party that the evaluator did an adequate job, and that a challenge to the evaluation is not a wise option. Those reviews are often invisible to the evaluators whose work product is reviewed.

This heightened standard for admissibility presents many challenges. CRC rule 5.220 is far from a model of drafting clarity. For example, the provision that evaluators “Strive to maintain the confidential relationship between the child who is the subject of an evaluation and his or her treating psychotherapist,” is problematical. Because due process requires that the parties, lawyers, experts, and judge can understand and challenge all of the data considered by the evaluator, this provision could be read to preclude consideration of the child’s therapy records or interview of the child’s treating therapists. Perhaps the best

(Continued)

practice is to inform the parties and counsel (including minors’ counsel) that waiver of the child’s confidentiality and privilege rights for purposes of the evaluation will result in the parents, lawyers, retained experts and court having access to that information. Moreover, since the Family Code does not extend the restrictions on distribution of child custody evaluation reports to transcripts, file material, quotations from evaluation reports or testimony in pleadings, etc., this information may end up exposed to the public or the press.

Exclusion from evidence presents a whole host of challenges. What happens to the family when an evaluation is excluded from evidence? Should the court appoint a new evaluator or decide the case based on the evidence and arguments without an evaluation? Is a Laurenti fee refund order necessary to fund a second evaluation? If the

evaluation is excluded, the parties and counsel are going to need time for more formal discovery, and to marshal evidence and arguments for presentation without the evaluation. Should that evaluator have access to the data and analysis of the first evaluation?

Few family law bench officers are familiar with the extensive child custody evaluation literature — or the standards and guidelines for evaluations promulgated by professional organizations. They are going to need the assistance of expert testimony to determine the materiality of deviations from the CRC. In truth, few litigants can afford to try custody cases post-‐evaluation, and even fewer can afford evaluator testimony and retained experts. Thus, like all aspects of child custody litigation, there will be a significant economic disparity in the impact of this legislation on California’s families. ww

AFCC-‐CA MENTORING PROGRAM: PREPARING TO LAUNCH Robert L. Kaufman, PhD, ABPP

At the 2015 Annual Conference in Costa Mesa, a significant part of our general membership meeting was devoted discussing how to encourage and support individuals who are new to family law but want to be more deeply involved. Of particular concern to many of us is that it is increasingly difficult for mental health professionals to fulfill the requirements to become court-‐approved custody evaluators and then to become known to and trusted by attorneys and bench officers. Speaking to these needs, and drawing on the cogent input of members in attendance, AFCC-‐CA is in the process of developing

a Mentoring Program. The Board of Directors has made the program a formal part of its agenda and formed a committee to propel the program forward. The committee currently includes Board members Bob Kaufman, PhD, ABPP (Chair) and Merlyn Hernandez, Esq. as well as non-‐Board members Nancy Olesen, PhD, Rhonda Barovsky, LCSW and Frank Davis, PhD.

The committee will very soon be seeking the ideas and active participation of our broad reaching membership. Expect a survey to arrive in your inbox, and please, complete it and consider how you can contribute. Thus far, we looking at several areas:

• Assessing and analyzing problems members experience and/or see in career advancement for professionals earlier in their family law careers; • Looking at ways for professionals to gain knowledge, experience and insight from more seasoned professionals;

• Addressing the need for mental health professionals to connect with potential supervisors to assist gaining approval to conduct court-‐appointed work and especially custody evaluations; • Establish liaisons with local courts and other professional groups to enhance training and development for mental health professionals starting to conduct custody evaluations: • Explore ways that AFCC-‐CA can influence rules and regulations regarding evaluator training and experience. Our plan is to present results of the membership survey, as well as ideas for next steps to formalize aspects of the Mentoring Program at the 2016 conference in San Francisco. We on the committee are excited about following up on what our members have identified as clear needs in our profession.

We are in a position to make an impact. Let’s do it! ww


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AFCC-‐CA Proposed Bylaw Revisions

1.Executive Summary

To assure geographic diversity of representation on the Board, the bylaws provide for at large members and regional members of the Board. The proposed revisions eliminate the requirement of geographic diversity as a requirement for the polity of the Board while maintaining that geographic representation and general diversity are stated goals of the organization. At the July 25, 2015 meeting, the AFCC-‐CA Board adopted a resolution approving the proposed revision for presentation at the Annual Meeting in 2016.

2. Current Bylaws

Originally incorporated on May 15, 1987, The Association of Family and Conciliation Courts California Chapter (AFCC-‐CA) the incorporators simultaneously adopted the Bylaws of the organization (the Bylaws).

Article III, Section 2 of the bylaws specifies that there shall be five officers, three directors from each geographic region of the state, four at large directors, and the immediate past president. The Board consists of the five (5) officers and a total of thirteen (13) directors for a total of eighteen (18). Board members are elected by the general membership at the first general meeting of each even-‐numbered year for a two-‐year term (The Bylaws Article III Section 3B) unless it becomes necessary to fill a vacancy because a Board member resigns or is removed. Under the Bylaws, California is divided into three geographic regions (Article III Section 5) generally described as:

• The Northern Region • The Central region • The Southern region Any specific county court, organization or individual member may present to

the Board of Directors a request for adjustment of regional membership (The Bylaws Article III Section 5A(4)).

The President of AFCC-‐CA shall appoint a Nominating Committee consisting of at least one member from each geographic region (The Bylaws Article III Section 6).

The Bylaws may be amended by a majority of the Board subject to ratification by the membership at the next general meeting (The Bylaws Article IV).

3. Proposed Revisions

The Board of AFCC-‐CA proposes revisions of the Bylaws in accordance with Article IV so that the geographic requirement of the board membership is eliminated (Article III Section 5 of the Bylaws) including the geographic diversity requirement of the Bylaws (Article III Section 6 of the Bylaws). In place and instead, the Bylaws shall state a preference for geographic diversity of board membership as well as a stated goal for seeking diversity of membership to assure a balanced membership of the Board taking into account geographic location, professional disciplines, diversity of race, gender, sexual orientation or preference. No person shall be denied consideration for membership on the Board based upon his or her race, ethnicity, religion, marital status, physical handicap, familial status, gender, sexual orientation or preference, or geographic location. The Board shall strive to assure that its membership reflects the broad diversity of the State of California. There shall be no requirement that a Board member be located in any specific region of California. When feasible, the Board shall maintain diversity of its Board taking into account the geographic regions of the State.

4. Proposed Resolution

RESOLVED, in accordance with Article IV of the Bylaws of the Association of Family and Conciliation Courts California Chapter adopted on May 15, 1987 the Bylaws are hereby amended as follows:

• Article III Section 2 is amended to strike the language requiring 3 directors from each of the geographic regions of the State. • Article III Section 2 shall now read: “The Board of Directors shall consist of nineteen members: the five (5) officers and fourteen directors (14).

• Article III Section 5 establishing Guideline for Election of Directors is stricken and shall be replaced as follows.

• Article III Section 5 shall be titled: “Section 5: Guidelines for Election of Directors”

• The text of Article III Section 5 shall read as follows:

“In electing Directors to the Board, the Board shall assure a balanced membership of the Board taking into account geographic location, professional discipline, and diversity of race, gender, sexual orientation or preference of its Board Members. No person shall be denied consideration for membership on the Board based upon his or her race, ethnicity, religion, marital status, physical handicap, familial status, gender, sexual orientation or preference or geographic location. The Board shall strive to assure that its membership reflects the broad diversity of the State of California. There shall be no requirement for a Board member to be located in any specific region of California. When feasible and consistent with the best interests of the Chapter, the Board shall maintain diversity of its Board members, including taking into account the geographic regions of the State.

• Article II Section 6A shall be amended to delete the requirement that the Nominating Committee consist of at least one member from each geographic region.

• If approved by the Board of Directors, these Amendments to the Bylaws shall be presented for adoption or rejection at the General Membership Meeting in accordance with Article IV of the Bylaws.

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President Mary Elizabeth Lund, Ph.D. President-‐Elect Michael J. Kretzmer, Esq. Vice President Michele B. Brown, Esq. Treasurer Diane E. Wasznicky, Esq. Secretary Robert Kaufman, Ph.D. Immediate Past President Judge Thomas Trent Lewis

Northern Region Judge Mary Ann Grilli Charlotte Keeley, Esq. Lorie Nachlis, Esq. Mathew J. Sullivan, Ph.D. Commissioner Marjorie Slabach Jorge Akagi, LCSW Shane R. Ford, Esq. Southern Region Judge Harvey Silberman Leslie Drozd, Ph. D. Judith Forman, Esq. Albert Gibbs, Ph. D. Merlyn N. Hernandez, Esq. Commissioner Michael Gassner

Historian Sherrie Kibler-‐Sanchez, LCSW Chapter Exeuctive Director Merry Gladchun

Our Board of Directors

Except where otherwise indicated, the articles in the AFCC-‐CA Newsletter represent the opinions and views of the authors and do not necessarily represent the opinion of AFCC, of AFCC-‐CA or

of the officers of either organization.

!afcc %canewsletter! issue#12winter2015! #12 ...do!better.!!to!take!anystep,!we!must!...

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