HOW to TRY a CUSTODY CASE October 8Th and 9Th, 2013

NYCLA-CLE I n s t i t u t e toward certification inciviltriallaw, criminaltriallaw, workerscompensation lawand/ormatrimonial law. hours oftotalCLE credit.Ofthese,2qualify ashoursofcreditforEthics/Professionalism, and0qualify ashoursofcredit This programhas beenapprovedbytheBoard ofContinuingLegalEducation oftheSupremeCourt NewJerseyfor16 Board foramaximumof16 Transitional &Non-Transitional credithours:2Ethics;7Skills;PP This coursehasbeenapproved inaccordancewiththerequirementsofNew Cavallo, LLP; Frederic P. Schneider, Hon. Harold Beeler, Briana Denney, Elliot J. Wiener,Elliot Dr. JonathanGould, Prepared inconnectionwithaContinuingLegalEducationcoursepresented NYCLA MatrimonialLawSection: The NY Women’s Bar Association at New York CountyLawyers’ Association, 14 Vesey Street, New York, NY 16 JamieL. Weiss, TRANSITIONAL &NON-TRANSITIONAL C H presented on Wednesday & Thursday, October 9&102013. Newman &Denney, P.C.; The New York CollegeofMatrimonialLaw Trial Attorneys ustody Phillips Nizer, LLP; Law OfficeofHarold B.Beeler; ow Ballon StollBader&Nadler, P.C.; Benjamin N.CardozoSchoolofLaw author The Art andScienceofChildCustodyEvaluations Teitler &Teitler, LLP; P o r P o r G

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Information Regarding CLE Credits and Certification How to Try a Child Custody Case October 9th and 10th, 2013; 9:00 AM to 5:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

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iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

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New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

How to Try a Child Custody Case October 9th and 10th, 2013 9:00AM to 5:00PM

Presented By: The New York College of Matrimonial Law Trial Attorneys www.nytrialcollege.com

Sponsored By: The New York County Lawyers’ Association The Benjamin N. Cardozo School of Law New York Women’s Bar Association

Location: The Benjamin N. Cardozo School of Law, New York, New York

AGENDA Day One

9:00 AM - 9:10 AM Introductory Remarks Dror Bikel

9:10 AM – 9:25 AM The Facts of Our Case Jaime L. Weiss

9:25 AM – 9:45 AM The Law of Child Custody Sandra L. Schpoont

9:45 AM – 10:05 AM Developing Trial Themes Frederic P. Schneider

10:05 AM – 10:10 AM BREAK

10:10 AM to 10:55 AM The Fundamentals of Direct-Examination Elliot J. Wiener

10:55 AM – 11:00 AM BREAK

11:00 AM – 11:45 AM The Fundamentals of Cross-Examination Dror Bikel

11:45 AM – 12:15 PM Questions and Answers

12:15 PM – 1:15 PM LUNCH

1:15 PM - 2:05 PM Demonstration of Direct-Examination of Party Witness • Presiding Justice: Hon. Saralee Evans/ Hon. Harold B. Beeler • Examining Attorney: Elliot J. Wiener • Opposing Attorney: Dror Bikel • Facilitator: Judith E. White

2:05 PM- 2:15 PM BREAK

2:15 PM – 3:05 PM Demonstration of Cross-Examination of Party Witness • Presiding Justice: Hon. Saralee Evans/Hon. Harold B. Beeler • Examining Attorney: Dror Bikel • Opposing Attorney: Elliot J. Wiener • Facilitator: Judith E. White

3:05 PM – 3:35 PM Questions and Answers

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

How to Try a Child Custody Case October 9th and 10th, 2013 9:00AM to 5:00PM

Presented By: The New York College of Matrimonial Law Trial Attorneys www.nytrialcollege.com

Sponsored By: The New York County Lawyers’ Association The Benjamin N. Cardozo School of Law New York Women’s Bar Association

Location: The Benjamin N. Cardozo School of Law, New York, New York

AGENDA Day Two

9:00 AM – 9: 20 AM Preparing Clients for a Forensic-Custody Evaluation Andrea R. Ziegelman

9: 20 AM – 9: 35 AM Evidentiary Issues Relating to Custody-Expert Reports and Testimony Briana Denney

9:35 AM – 9: 45 AM BREAK

9:45 AM - 11:45 AM The Methodology of Child-Custody Evaluations Jonathan Gould, Ph.D.

11:45 AM – 12:15 PM Questions and Answers

12:15 PM – 1:15 PM LUNCH

1:15 PM – 1:55 PM Demonstration of Direct-Examination of Expert Witness Presiding Justice: Hon. Saralee Evans/Hon. Harold B. Beeler • Examining Attorney: Elliot J. Wiener • Opposing Attorney: Dror Bikel • Expert Witness: Jonathan Gould, Ph.D. • Facilitator: Judith E. White

1:55 PM – 2:05 PM BREAK

2:05 PM – 2:45 PM Demonstration of Cross-Examination of Expert Witness Presiding Justice: Hon. Saralee Evans/ Hon. Harold B. Beeler • Examining Attorney: Dror Bikel • Opposing Attorney: Elliot J. Wiener • Expert Witness: Jonathan Gould, Ph.D. • Facilitator: Judith E. White

2:45 PM – 2:50 PM BREAK

2:50 PM – 3:15 PM Remarks from the Bench Hon. Saralee Evans/Hon. Harold B. Beeler

3:15 PM – 3:45 PM Questions and Answers

NEW YORK COLLEGE OF MATRIMONIAL TRIAL ATTORNEYS

HOW TO TRY A CUSTODY CASE October 8th and 9th, 2013

Sponsored by: The Benjamin N. Cardozo School of Law The New York County Lawyers’ Association The New York Women’s Bar Association

CONFIDENTIAL PSYCHOLOGICAL EVALUATION OF JON MORGAN, PhD

Re: Hilary Jones v Jeffrey Jones, Index#:1234/2012

Hon. John Delaney 18 Supreme Court Street New York, New York, 10001

Dear Judge Delaney:

Pursuant to the court’s order, I undertook a forensic study in the above-captioned matter.

Ms. Jones was seen on December 20, 2011 for an hour and a quarter, on December 27, 2011 for one hour, on December 29, 2011 for three quarters of an hour, on January 8, 2012 for one hour, on January 10, 2012 for three-quarters of an hour. We met again on February 23, 2012 for three- quarters of an hour.

Mr. Jones was seen on November 21, 2011 for one hour, on December 8, 2011 for fifty minutes, and on February 2, 2012, for one hour.

Laura Jones was seen on February 23, 2012 for one half hour.

A joint observational interview of Laura and her mother was held on January 20, 2012 and lasted forty minutes. I met briefly with Laura following the joint interview.

A joint observational interview of Laura and her father was held on March 2, 2012 and lasted forty minutes. I met briefly with Laura following the joint meeting.

Ms. Jones’ psychiatrist, Dr. Karl Semper was interviewed on March 18, 2012

Laura Jones’ neuropsychologist, Dr. Emily Goldstein was interviewed on March 19, 2012.

Laura Jones’ sixth grade class room teacher, Ellen Speaks was interviewed on March 20, 2012.

SUMMARY AND COMMENT

In directing this forensic study the court sought information to assist in its deliberations regarding custody, access and decision-making for Laura Jones (date of birth, June 22, 2000) should her parents not reach agreement. The court also sought my opinion with regard to which party should have custody, and what access arrangement is most suitable for Laura.

Laura Jones is an intelligent and exuberant twelve year old who currently attends sixth grade at Public School 13. As a result of performing very poorly in school, in 2009 she was referred to Dr. Emily Goldstein, a child psychologist, for neuropsychological evaluation. Laura was subsequently diagnosed with Attention Deficit Hyperactivity Disorder, and prescribed Concerta, which she currently takes on a daily basis.

For her part, Ms. Jones has engaged in a very troubling pattern of interference with Mr. Jones parenting time, and is a very real risk for engaging in parental alienation. Ms. Jones has a long history of bi-polar disorder for which she was hospitalized on several occasions.

Mr. Jones presents as a very engaged father, but there are also several very concerning issues regarding his parenting as well. He believes that Concerta is addictive, and states that he will refuse to administer the medication to Laura should he have custody. He has a 30-year history of daily Marijuana use, although he states that he does not use Marijuana while he is with Laura. He also does not believe in psychotherapy, and refuses to let Ms. Jones find a therapist for Laura.

The parties have resided apart exclusively since about the end of 2010. Laura has continued to reside primarily with her mother, and has seen her father pursuant to an access schedule.

Throughout the course of this evaluation Ms. Jones has sought to have Laura continue to reside primarily with her. Ms. Jones’ view of Laura’s contact with her father is that their time together should be at the sole and exclusive discretion of Laura; Laura can see her father “if she wants.” If Laura says she does not want to see her father, she should not be forced to. Laura should have a relationship with her father if he is “not harming her.” It is stressful for Ms. Jones, she reports, when Laura “rebels” against seeing her father because, according to Ms. Jones, “Mr. Jones is clearly an abusive man.” Ms. Jones told me that she has no problem with stating that Mr. Jones is abusive when she is with Laura on the days when Laura is scheduled to see her father. She stated that sometimes Laura needs “to be reminded of this fact”.

As to whether it may not be difficult for Laura to tell Ms. Jones that she wants to see and spend time with her father given that Ms. Jones has made it very clear to Laura that she is not happy if Laura wants to stay with her father, Ms. Jones responds that Mr. Jones is not nice to Laura. She adds that she does not know why Laura tells her that if it is not true. Any “rational human being” would know it is not good for a child to see that or be abused. This situation is a “no-brainer.”

In support of her wish to have Laura remain in primary residence with her, Ms. Jones tells me that she does not use drugs or drink excessively, and that she is the more stable and more committed parent. In addition, she references “what I went through to have that child.” She also states that Laura has been “doing much better as a result of taking Concerta”, and that, as evidence of Mr. Jones’ abusive behavior, he stated that to the court that he does not agree to give Laura the ADHD medication (Concerta) as he believes that it causes someone to become “a drug addict”.

It is difficult for Ms. Jones to specify a schedule on which Laura should see her father. He has always seen her around his work schedule, and weekends are difficult as he works. She fears she will be seen as agreeing too much to any schedule. Mr. Jones is abusive to Laura and does not treat her like a person. It is difficult for Ms. Jones to say anything about a schedule until he “gets his act together”.

Regarding how decisions will be made for Laura in the major spheres (medical, educational, religious, and extracurricular) going forward, Ms. Jones tells me that she will make all decisions, or she will make them in consultation with Laura. She will be paying because Mr. Jones will not. Ms. Jones is the better equipped parent to make decisions by dint of her education and the fact that her brother works in a hospital. Mr. Jones wants to make decisions not taking Laura’s wishes into account. Ms Jones is unimpressed by Mr. Jones’ medical decision for himself. She tells me that he passed out three times, and has signed himself out against medical advice. Mr. Jones always left decision-making to Ms. Jones “until money was involved”. All decisions regarding Laura have been made by Ms. Jones. There are no significant differences regarding medical care between herself and Mr. Jones, but Mr. Jones felt that Laura was traumatized when Ms. Jones took her to the emergency room after receiving a rug burn while in his care. Ms. Jones did all the legwork regarding educational decisions and Mr. Jones went along with them. Mr. Jones does not care about religion. Ms. Jones was raised Presbyterian and Mr. Jones is, or was, Jewish or Buddhist. Laura identifies with her mother. Laura said that she does not want to be Jewish when Ms. Jones asked if she wanted to go to Hebrew School. Ms. Jones will expose Laura to both religious traditions and Laura will decide when she is older. Ms. Jones made her own decisions at age eleven. Joint decision-making regarding Laura is not workable because Mr. Jones is abusive to Ms. Jones and to Laura.

Ms. Jones states that she has had periods of suffering from major depression. She has been hospitalized on 3 or 4 occasions over the last 20 years, the most recent being in 2007 when she was admitted to Belllevue Hospital for 2 weeks. She takes Lithium and Welbutrin daily, and reports as having “no issue with my mental state”.

Mr. Jones tells me that he is “happy to co-parent.” In his “Plan A,” if custody is awarded to him he will work days and take care of Laura at night. He will “give” Ms. Jones liberal visitation with Laura, probably on weekends. Under his “Plan B”, if he is not awarded custody, he would like the same visitation schedule he previously had, from Sunday morning to Wednesday morning. He prefers Plan A because he is the more emotionally stable parent. Ms. Jones yells and screams.

According to Mr. Jones, Laura is scared of her mother and acts in certain ways so as not to offend her mother, around whom she walks on eggshells. Mr. Jones describes himself as better organized that Ms. Jones, with a neater home. There is a routine in his home regarding bedtime, tooth brushing, and homework completion. He instills greater stability in his daughter than does her mother. He would be flexible about visitation. Ms. Jones will not co-parent, and does not adhere to the court ordered visitation. She does not allow overnight visitation and has interfered with visitation. Although at this point there is to be nightly phone contact for Mr. Jones with Laura, his daughter will not talk because her mother listens in. He would share holidays with Ms. Jones. A fifty-fifty division of Laura’s time would be fair to him and to Ms. Jones. In addition, Laura enjoys her time with him and often does not want to leave. Laura’s mother has threatened her with abandonment if she spends too much time with her father, and Laura is frightened of that. Ms. Jones is less accepting of Laura and wants to curb Laura’s excitement and enthusiasm. Laura knows that he loves her unconditionally, whereas her mother’s love is predicated on pleasing Ms. Jones.

Of significance, Mr. Jones stated that he does not believe that Laura “needs that ADD medication”. He does not believe that Laura has ADHD, and does not support her treatment with Concerta. He has not gone to the trouble of speaking with Dr. Goldstein, Laura’s neuropsychologist. He stated that he would not prescribe the medication should he be awarded custody.

Ms. Jones currently makes decisions for Laura without consulting Mr. Jones. Mr. Jones told me initially that he sought sole decision making for Laura. In general, he and Ms. Jones had been in agreement regarding decisions but he wanted to be able to work collaboratively, whereas she works unilaterally. At the end of the evaluation Mr. Jones advised me that the issue of decision- making going forward for Laura is a “tough question.” He continued to frame his differences with Ms. Jones regarding decision-making as having more to do with the day-to-day matters than the larger spheres generally considered by the court. In addition, communication, which earlier was a nine or ten (on a scale where ten is the worst), is now a seven or eight, in his view. He is willing to work with Ms. Jones and he hopes that at some point she will be willing to do so as well. If not, there should be spheres of decision-making. Either parent is capable of making decisions in any sphere for Laura. On discussion, however, he has certain concerns. He would not be agreeable to Ms. Jones having decision- making across all spheres; Ms. Jones might take advantage of that by making decisions which are not in Laura’s best interest. That is more likely in some areas than others. Accordingly Mr. Jones would want authority in the area of extracurricular decisions for Laura. Although he approves of the extracurricular decisions which Ms. Jones has made for Laura, he is concerned that Ms. Jones might not continue to make such good decisions for their daughter.

In brief, Ms. Jones recounts that although Mr. Jones was “a little bossy,” they generally got along from the time they met in 1985 until they married in 1988. He was not supportive when she had an early miscarriage and at some point told her she needed antidepressant medication, which she started to take. Mr. Jones had not been eager to become a father, but agreed. In return, Ms. Jones felt that as he had given her “my baby” she would give him his music studio. Mr. Jones became jealous of the time she spent with Laura. When he got “sloshed” and insisted on driving with Laura, Ms. Jones began to worry about Laura in her father’s care. She felt she was doing everything, working, taking care of Laura, and paying. She and Mr. Jones argued about money. When she broke her elbow when Laura was in kindergarten, her husband demanded sex, threatening that he would get a girlfriend if she did not provide it. After 2009 their arguments switched from exclusively verbal to sometimes physical; she was pushed down in the kitchen and in the bathroom and her arm bruised by Mr. Jones. Eventually he was physical with her in front of Laura. There had been a separation in 2007 when she told him not to come home after a physical incident. He came back after a few months. Mr. Jones left permanently at Christmas 2011. When he started to see Laura in his apartment he began to be abusive to her, dragging her off the bed by the feet, resulting in a rug burn. There have been court directed visitation schedules, but Laura does not want to go at times. Mr. Jones will not stop tickling Laura even when she asked, and has left marks on her arm. ACS investigated his taking her to a bar. According to Ms. Jones, Laura has told her, “You can’t protect me…daddy said he can do what he wants.”

For Mr. Jones, Ms. Jones was and “probably still is,” in some way, the love of his life. He charmed her when they first met. She wanted marriage. The relationship was wonderful because “she took good care of me,” was companionable, and they shared a sense of humor. Ms. Jones is very intelligent. He did not necessarily want parenthood when they married, but wanted to give her what she wanted. There were age-related fertility issues. As soon as Laura was born he fell in love with her, and has remained in love with her. Mr. Jones sees Laura’s birth as the beginning of the end of the relationship. Once Ms. Jones had a child she was “done with” him; she was the mother and in charge. Ms. Jones had originally presented herself to Mr. Jones as a helpmate. That reversed itself after Laura’s birth. Ms. Jones depression was a constant problem, and she “checked out” on several occasions, requiring extended hospitalizations. She can also become very scattered, rambled, and was increasingly belligerent when she is depressed. While he does not know if her depression impacted on her ability to take care of Laura, Mr. Jones can say that she was not a confident or natural mother. She had to read books and consult her own mother. He never worried about her taking care of Laura though. There were verbal arguments but no police involvement until the end of the relationship. Ms. Jones alleged that Mr. Jones pushed her. She threatened him with a knife, and threatened to scream abuse if he left. She was trying to set him up for spousal abuse.

Once he had his own place, Mr. Jones began seeing Laura there. In March 2011 Ms. Jones claimed there was a problem. He is playful with Laura, whereas Ms. Jones has never been. He did pretend play with Laura and physical horseplay, which Laura enjoyed. This "infuriated" Ms. Jones who feared that Laura would be hurt. After Ms. Jones alleged "child abuse" his access was changed. One day, in the hope of getting a laugh out of his daughter he dragged her around, something she usually enjoyed. Her shirt slid up and she got a small carpet burn. Ms. Jones sought an order of protection, and an ACS investigation was launched. The case then moved to Supreme Court and a parenting schedule was arranged. That schedule began to have serious difficulties in September 2011. Ms. Jones was frequently late in bringing Laura for the transfer and tried to reduce Mr. Jones’ access time. Sometimes she did not appear. Laura began to stay home from school when it was his day to pick her up. She did not adhere to the court order. Nightly phone contact does not work well. Laura has told him that when she tells her mother that she had a good time with Mr. Jones, Ms. Jones says that if she had a good time maybe she should stay with him forever and Ms. Jones will move to Florida. He stated that he is vehemently opposed to Laura taking ADHD medication. He believes that Laura has “no issues”, and does not need a therapist or medication. Be believes that all of this “hoopla” is an attempt by Ms. Jones to further control Laura and keep her away from him. Each of Laura's parents possesses sufficient intelligence to adequately parent her. Laura appears to have developed a meaningful bond of mutual caring and craving with each parent. Mr. Jones presents with a mental status examination devoid of signs of major mental illness. Ms. Jones presents with bi-polar disorder, for which she is administered Lithium and Welbutrin. Both of Laura's parents have a history of providing income for her upkeep (although they appear to have been under long-term financial stress). The ongoing acrimony between her parents is a burden to Laura, and threatens to interfere with her healthy psychological development. Mr. Jones and Ms. Jones each see Laura's burden as the fault of the other. Largely unable to appreciate their own contribution, their acrimony and finger-pointing continues, and Laura remains disserved. Laura's circumstances include a history of ACS investigation, police involvement, multiple domestic incident reports, and having to participate in this forensic evaluation. Laura remains caught between her parents' divergent and negative views of each other. For reasons which will be discussed below, she is not fully able to express herself with either parent. At one point Laura was evaluated for thoughts of self-harm/suicidal ideation. All of this is compounded by Laura’s ADHD diagnosis, although the Concerta treatment appears to be helpful.

Laura is also affected by the family financial stresses. She is clearly distressed about the idea of having to move again.

Ms. Jones presents, according to her psychiatrist Dr. Kemper, with a long-term history of chronic anxiety. She carries a diagnosis of Bi-Polar Disorder and Major Depressive Disorder, and receives psychiatric mediation, for which she has been hospitalized on multiple occasions. In the above context, Ms. Jones appears to have continued to provide concerned and satisfactory care for Laura.

It is highly problematic for Laura that Ms. Jones has communicated to her that her father is abusive to her and does not take responsibility for her. Ms. Jones insists that when she talks to her daughter about Mr. Jones' behavior, what she is doing is confirming Laura's reality for her. For example, by her own acknowledgment Ms. Jones has discussed with Laura that Mr. Jones does not pay child support. Ms. Jones tells me that this is so that Laura will know that her father is not meeting his responsibility towards Laura. On discussion, Ms. Jones appears unable to appreciate the impact of that on Laura. Even if it is the case that Mr. Jones is not meeting his financial responsibility, to have Laura believe that her father is not concerned to take care of her is not helpful to her daughter at this point. Further, a part of Ms. Jones’ motivation appears to be connected with how she wants to be seen by Laura. That is, when she cannot provide something for Laura due to her financial situation, she does not want to be viewed negatively by her daughter. In confirming Mr. Jones' failure in providing financially for Laura, she can also shift blame in Laura's mind, and be seen more positively by her daughter.

Ms. Jones acknowledges that she told Laura that if she wants to be (live) with Mr. Jones she could do so. This leaves Laura anxious about abandonment by her mother if she wants to spend time with her father. (Laura reports that her mother tells her that if she wants to stay with her father overnight, for example, she can simply remain with him, and that if her mother has to deal with her father, she and Laura will not stay together.) It is also my clear impression that when Laura is with her father, she is anxious about not being with her mother in order to help and support her mother.

According to school records, Ms. Jones interfered with Mr. Jones' contact with Laura and the police had to be called to the school twice. Ms. Jones reported that she thought Laura's contact with her father was up to Laura.

Additionally, she reports, Laura said that she would not go to school on the days her father was going to pick her up. Accordingly Ms. Jones "had to" promise to appear at the school. Ms. Jones asserts that she encouraged Laura to go with her father by saying "Maybe it will be okay today." This is a mixed bag implying or confirming for Laura that things were not okay on other days and holding out the possibility that they might not be okay today either. If Ms. Jones were more truly invested in Laura spending time with her father it is likely that she would have been more effective in supporting and encouraging Laura to go to school. (Ms. Jones was clear and firm with Laura about going to school after our joint meeting, when Laura was resistant).

Mr. Jones has consistently worked to maintain contact with Laura in the face of difficulties imposed in part by Ms. Jones.

Mr. Jones does indeed have a playful side, which Laura seems to enjoy up to a point.

Mr. Jones reports a history of daily marijuana use from age sixteen to date. He discontinued that use, he reports, when he was told he would not be able to see his daughter if he did not stop. He states that he does not use Marijuana when he is with Laura. He has a history of LSD and mescaline use in his late teens on a limited basis, and of cocaine use briefly in his early twenties. He used pills ("ups and downs") from his mid to late teens. Although ACS recommended substance abuse treatment, Mr. Jones feels he does not need it and has no money for it.

Long-term marijuana abuse is often associated with delays or arrests in emotional maturity, especially when it begins as early as Mr. Jones' did. Mr. Jones' current alcohol intake is moderate he says, a couple of drinks with dinner a couple of times a week.

Mr. Jones has current financial and employment challenges which impact Laura. He acknowledges having discussed the idea of killing himself with Ms. Jones in connection with an order for him to pay child support. He says that his intent was to indicate to Ms. Jones that if he killed himself there would be no child support. Such a communication is inflammatory and clearly less than mature, with a derivatively negative impact on Laura.

Laura Jones was born healthy. Developmental milestones were within normal limits, and there is no significant medical history. According to Ms. Jones, Laura began preschool full-time at age three, and it took her two weeks to separate, after which she did fine. According to Mr. Jones, Laura's first separation from the home was at age four or five to go to preschool and there were no separation problems. Ms. Jones reports that at pre-kindergarten at age four Laura was like a "little assistant teacher who could read and had fine behavior and no social problems." She was there for three years through the end of the first grade. Mr. Jones recalls that that school was a failing ghetto school. Laura was moved to PS 13 for second grade and is now in the sixth grade there. She initially did not perform well, but the Concerta has apparently helped. Mr. Jones reports that Laura does well academically, behaviorally, and socially, and has help for math. Ms. Jones reports that Laura is above level, but her academics had been down in fourth and fifth grade. Her latenesses and absences increased, and she was distracted and found it hard to focus. Mr. Jones complained that he cannot help Laura with her homework as her mother does not permit overnights. Ms. Jones reports that Laura's relationship with her father was okay when the family was united, but that Laura did not like his rough play. Ms. Jones had to intervene a good bit even then. Mr. Jones was a disciplinarian and criticized Ms. Jones for being too easy. Laura loves her father "but not what he does." This is because Laura got hurt playing with her father. While Ms. Jones acknowledges that she no longer sees the interaction between Laura and her father, Laura gets hurt playing with him. Ms. Jones’s own relationship with Laura is the same as ever. Laura is precious to Ms. Jones, which increases Ms. Jones' feelings of protectiveness, she reports. Laura is a person and not property, and Ms. Jones supports Laura's likes and interests. Mr. Jones tells me that Laura is comfortable with him, but feels disloyal to her mother for that. Her mother says that Laura does not want to see him. Laura is occasionally angry. Her mother is not playful; Laura sees her mother as "for work" and Mr. Jones as "for fun". Mr. Jones assesses that Ms. Jones is jealous that he and Laura play together. He sees Ms. Jones as having given in to Laura "to be popular," whereas he was a parent who insisted on vegetables and the like. In his view, Laura presents as clingy and fearful with her mother. Mr. Jones sees himself as structured and firm. Punishments administered by Mr. Jones include loss of privileges. He recalls that Ms. Jones yelled, and slapped Laura on the wrist a couple of times when frustrated. Mr. Jones finds it harder to get Laura to trust him now because of what her mother has said about him. Laura has asked him if he has a girlfriend and if he sends support checks. Laura fears her mother's abandonment, but is otherwise well adjusted. School information received about Laura (PS 13, grade six, from Ms. Speaks, Laura's teacher) indicates that Laura is in an average class. She was absent 7 times and late nineteen times. There was a notation that Ms. Jones and Laura live far away; a pattern of lateness has been addressed. Laura is said to feel a lot of stress, anxiety, and guilt about her family, which contributes to her daydreaming and missing the content of some lessons. Laura has "low self-esteem in math" and not many friends, although she does have a couple of close ones. She is a strong reader with excellent vocabulary and comprehension. She is described as smart, sweet, and kind. There are no problems with teachers and either no problems or mild problems with peers. Laura daydreams and is somewhat unaccepted by the group and lacks leadership. She is not a problem overall. There is frequent contact with Ms. Jones and appropriate as-needed contact with Mr. Jones. Laura reported that her mother threatens to leave her when she says that she would like to see her father. Ms. Jones has "interfered with and undermined" Laura's weekday visits. The New York City Police have been called twice to mediate transfers at the school. As a follow-up to written records of Laura's mental health treatment Dr. Emily Goldstein, who diagnosed Laura with ADHD, believes that it is highly problematic that Mr. Jones does not administer the Concerta to Laura, since Laura would essentially fail out of school without it. Dr. Goldstein told me that Laura reportedly "flipflops" about her wishes (about her parents) depending on who she is with at the moment. She is said to think that her mother wants to hear that Laura does not want to go with her father. Laura presents as anxious about her mother saying that Laura can stay with her father if she goes with him. (Ms. Smith notes that Ms. Jones has been able to tell Laura she is not going to leave her). Laura has been forced to choose between her parents when both showed up at school to collect her, and the police were called. Ms. Jones thinks that Mr. Jones is a manipulator and abusive, including being abusive to Laura. She has said this in front of Laura. Laura has said that her father is rude and interrupts her, and that her friends do not want to have play dates with her because of him. Sometimes Laura has expressed feeling unsafe with her father. He reportedly pulled her in the rain when she did not want to walk. There is a history of her having a rug burn. Laura has felt that her father does not give her enough privacy, either closing the door or walking into the bathroom. She feels unsafe in her father's neighborhood. Mr. Jones has reported that Ms. Jones is emotionally abusive to Laura. Ms. Jones presents as highly overly emotional at times and better organized at others. In joint session Mr. Jones has been "pushy," and has talked over Laura. Laura has been able to say "You are interrupting me," resulting in Mr. Jones desisting. According to Dr. Goldstein, neither parent fully appreciates the distress they cause Laura. Laura is improving academically now as a result of her medication. Laura is in a loyalty bind. Previously she had thoughts of self-harm. It is still unclear how Laura and her father will have regular therapy sessions. Laura expresses warmth and affection to both parents. Ms. Jones sees Mr. Jones' horseplay and tickling as abusive to Laura, and Laura says she does not like it. When brought to meet me by her mother, Laura separates easily to join me in the office. She is twelve years old and tells me that her understanding of why she has come to see me today is to "figure out who I am going to live with for the rest of my life." Her mother told her this. (On later discussion, Ms. Jones tells me that she told Laura that I would make recommendations to the judge). Laura talks about her school, and advises me that her teacher is "one of the nicest teachers I ever met." She is doing well in and improving in math, and there are no complaints about her behavior. Laura confides that she gets emotional and sad at times, cries and tears up, and asks for private conversations with her teacher. Laura sees herself as having friends. She has play dates and sleepovers at her mother's only, because her friends do not know or do not like her father. Sometimes he scares them because he is tall and loud. Laura told me then that she was "not really seeing" her father because he wants her to stay over. She added that she does not want to do that or that her mother would get "mad." Laura's mother would worry that her father will not get her to school on time or treat her nicely. In addition, her mother yells if she stays over. It is "scary" when Laura's mother tells her that if she stays over at her father's house she can remain with him forever, and that they will not stay together if her mother has to deal with him. Laura has "no idea" why her mother does not want her to spend time with her father. Her mother does not like her father anymore. It would be fine with Laura to spend all scheduled time with her father if her mother were okay with it. Laura's father wants her to play with him. The two homes are far apart and it is a long drive. What was positive about the family being united was Laura's contact with her father. Her parents, however, always fought and hit each other, and her father gave her mother a bruise. Laura will not discuss this further. In addition, Laura's father's family is nasty to her mother and tells lies about her. They hate her mother. Laura found an email. When Mr. Jones later brought Laura to meet me individually, she advised me that she was seeing him more often. Before, she confided, "I didn't see him the way I was supposed to." Laura had "no idea" how her mother was doing with this increased contact, but she allowed it. Typically Laura does not receive punishment. Sometimes either parent might take away her electronics. Laura's mother is nice, caring, and has a lot of friends. When Laura is alone with her mother and her mother trips or falls, her mother curses and it is annoying. Laura says that her mother "taught me not educational curse words." Laura's father is "pretty nice." Laura tells me that she knows that she is "not supposed to talk about this ... but I know he doesn't pay child support." She knows this because her mother goes to the mailbox and there is no money. Laura's father likes to buy things for people, which is nice. He allows Laura to play with people. Her father was upset when Laura did not tell him that she took drum lessons from his former band partner (with whom he had fallen out). The best thing about her father is that he likes to play and makes friends. When asked what she would like to change about her father, Laura says that she is sometimes sad. Her father pulled her out of bed and she got a rug burn. He did not pull her out of bed out of anger; he thought she would like to play but he should not play so rough. Here Laura tells me that her mother "asked me to say what my dad is doing to hurt me by accident." When I inquired why her mother wanted her to tell that to me, Laura responded, "She really wants custody of me." Although Laura's father said that Laura did not see her parents fighting, that is not so, and he bruised her mother. Her father does not like her mother, and says that her mother is mean to him. Her mother does not like it when her father does not pay support; her mother cannot pay the rent. Laura emphatically tells me that she "cannot move again," and that things of hers were broken in the last move. It would improve Laura's life if her parents did not fight, if her mother did not curse, and if her father stops roughhousing. Separate joint observational interviews were held with Laura with each parent. When seen with her mother, there is easy discussion and play between them. Laura hugs and kisses her mother, and they talk about after school activities. Laura sits in her mother's lap. Laura tickles her mother who pronounces it "too much" and wants Laura to stop. (There is a striking parallel here with what Laura says that her father does to her). When seen with her father, there was immediate easy laughter. Laura played with her father's hair and twisted his ear. He creatively limit set her by telling her that what she was doing will hurt him and "You have my ear." Father and daughter sat close to each other and looked at each other. They made a game of it and there was good humor. Mr. Jones tickled Laura and when she said "quit it" he agreed. Interestingly, she then moved closer to him. He squeezed her leg and she smacked his hand. Of note also is that Laura initiates physical contact with her father. She gives a mixed message about this play. While children at times crave attention from their parents, aspects of the attention Laura Jones gets from each of her parents is not helpful to her. In addition, to the extent that Ms. Jones and Mr. Jones continue to misperceive or misinterpret the effect of each other's behavior on Laura and communicate their negative view of each other to Laura, their daughter's healthy psychological development and adjustment will remain at risk. Laura will continue to be compelled to use a portion of her energies to assure herself that she and both her parents are all right, and to attempt to keep each of them happy with her. These are energies that she should be using to help master her normal developmental tasks. Laura's economic circumstances have been made more difficult by her parents' separation. This is not atypical, and it is another stressor on Laura. To the extent that her parents are able to successfully generate income, it will be helpful to their daughter. The energies they have invested in this custody battle might better be used to that end. With the caveats discussed above, Laura appears well taken care of in her mother's home. Laura has relied on her mother over the course of her lifetime to make significant decisions for her, and those decisions are essentially not called into question by Mr. Jones. She appears generally well cared for in her father's home, as well, although his stated refusal to give Laura her medication is highly problematic. The court will want to safeguard Laura's relationship with both parents by insuring that she has significant regular time to spend with both of them. Laura has indicated that she would be fine with all time she is supposed to spend with her father (including overnight time) if it were not for her mother's anxieties and worries about it. That is a factor which must be more seriously taken into consideration and appreciated by Ms. Jones. In spite of what her daughter may have reported to her, Laura does not feel that she needs her mother to protect her from her father, or that she cannot spend overnight time with him. If Laura were to be separated from her mother now by being in primary residence with her father, her anxiety about and for her mother would likely increase substantially. This would put additional stress on her relationship with her father. Ms. Jones’ distress about Laura under such circumstances would also be expected to increase, also resulting in further pressure and distress for Laura. If Laura remains in residence with her mother, a secure access schedule for time with her father, including overnight visits, is important for Laura. If Ms. Jones wishes to truly assist Laura, she will need to find a way to reconceptualize and support such contact between Laura and her father. Laura Jones is a bright, engaging, resilient youngster who has the good fortune of having been able to contend, better than many might, with the familial difficulties with which she has been faced. In her relationship with her mother, Laura is burdened by Ms. Jones’ anxieties and worries, in particular about Laura's father and Laura's relationship with him. With her father, Laura has been burdened by his own need to be playful and his failure, at times, to respond quickly or adequately enough to her need for physical distance or privacy. Laura should continue in her current therapy. It also may be useful for Laura to have some sessions jointly with her father and some sessions jointly with her mother, even if those need to be with a therapist other than her own. I am not fully convinced that Laura has completely expressed what changes she would like from her father, in terms of physical space and privacy, and perhaps other matters. It is clear that Laura has not been able to fully express her concerns about what her mother says and does about her father, and her concerns about her mother, to Ms. Jones. Ms. Jones needs continued support to assist her in reframing parts of how she sees her daughter's relationship with her father. This will likely require a fresh look at that relationship in the context of Ms. Jones' own family history, and in the context of her anxiety. Ms. Jones also requires support to understand and appreciate the extent to which Laura worries about her and feels the need to please and care for her, which is burdensome to Laura. Mr. Jones should enroll in a course of treatment to assist him in understanding the role of his long-term substance use on his own development, outlook, and life circumstances. Such work would accrue to Laura's benefit and would likely contribute to more satisfying relationships for Mr. Jones himself in the future. If he is continuing to use/abuse substances he will require treatment for that. He also needs to understand how refusing to administer Laura Concerta may seriously affect her adversely in school and in her life generally. As long as Ms. Jones sees herself as victim of abuse by Mr. Jones, it appears unlikely that she will be independently willing or able to work cooperatively with him regarding decisions to be made for Laura. In this connection, it is indicated that the services of a neutral third party such as a parenting coordinator be available to help resolve differences between the parties, even if they are not making decisions jointly for their daughter. This might assist in improving communication between them and decrease the likelihood of future litigation. Given the context set forth in this report, I recommend that Ms. Jones be awarded custody of Laura. While her interference with Mr. Jones’ parenting time remains an ongoing problem, and indeed may result in Laura being alienated from her father, Mr. Jones’ refusal to administer Concerta is even more disturbing, as Laura will likely fail in school and in life without it. I also recommend that Mr. Jones be given liberal parenting time. An equal 50%-50% schedule is appropriate given Ms. Jones pattern of continuously interfering with Mr. Jones’ parenting time. I recommend a 2-2-3-3-2-2 schedule for every two week period. Given the distress experienced by Laura, particularly in the presence of both parents simultaneously, it is recommended that transfers be arranged at a neutral site. Telephone contact remains problematic for Laura essentially because it results in her feeling in between her two warring parents.

Jon Morgan, PhD

NEW YORK COLLEGE OF MATRIMONIAL TRIAL ATTORNEYS

HOW TO TRY A CUSTODY CASE October 8th and 9th, 2013

Sponsored by: The Benjamin N. Cardozo School of Law The New York County Lawyers’ Association The New York Women’s Bar Association

TRIAL THEMES

Themes about Hilary Jones in Support of Hilary Jones’ Case-in-Chief

Ms. Jones Is the party that has been primarily making decisions relating to Laura Jones

Ms. Jones has been the “laboring ore” — she has been doing all of the leg work

Mr. Jones has deferred to Ms. Jones on decision making issues

Courts tend to defer to the parent who has been making the decisions relating to the child

Ms. Jones has been managing Laura’s medical care

Themes about Jeffrey Jones in Support of Hilary Jones’ Case-in-Chief

Does not follow up with medication and medical care

Did not speak with Laura’s neuropsychologist

Long history of marijuana use

He is too physical with Laura – playfulness can be interpreted as aggressive

He has been violent towards Ms. Jones before the couple separated

Themes about Jeffrey Jones in Support of Jeffrey Jones Case-in-Chief

Fun loving father

Playful

Provides a consistent routine

Mr. Jones facilitates parenting time with Ms. Jones

He is organized

Themes about Hilary Jones in Support of Jeffrey Jones Case-in-Chief

Interferes with Ms. Jones’ parenting time, violates court access orders and may be alienating Laura from her father

Ms. Jones uses money in a negative manner complaining to Laura about Mr. Jones’ failure to pay child support.

Ms. Jones disparages Mr. Jones to Laura

Ms. Jones suffers from mental illness

Laura appears to be taking care of Ms. Jones, emotionally 10/3/2013

Preparing Clients for Child Custody Evaluations

Gary Nickelson, Esquire Fort Worth, Texas & Jonathan W. Gould, Ph.D., ABPP Charlotte, North Carolina

Different kinds of forensic evaluations

 Psychological Evaluation

 Parental Fitness/Competency Evaluation

 Child Custody Evaluation

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Definition Ambiguity

 How do we define coaching?

 How does coaching differ from client preparation?

 Does a rose by any other name. . . ??

Professional Consensus?

 What constitutes coaching versus appropriate preparation.

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We believe. . .

 Attorneys have an ethical responsibility to present the best case for their clients.

 One component of preparing the best case is to assist both the parent/litigant and witnesses to be able to clearly explain their testimony.

 Most often, attorneys will not tell their clients what to say but, rather, only how to say it.

We also believe

 It is unclear whether engaging in the same type of preparation activities as an attorney is proper for a mental health consultant working with an attorney to assist a parent/litigant.

 Today, we explore some of the unanswered questions that such a consulting role raises.

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AFCC Task Force

 Schepard (2011) notes that the attorney’s goals in engaging a mental health consultant include one or more of the following (or some combination thereof):

Schepard (2011) Speaks

 “support for the litigant participating in the evaluation, including education of the litigant about the nature and purposes of a forensic mental health evaluation (litigant education and support). The consultant usually performs this function before the evaluation takes place or while it is being conducted;

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Schepard (2011) Speaks:

 consultation with the attorney about the forensic mental health evaluation, including review of the quality of the forensic mental health evaluation, and aiding the lawyer in preparing for cross- examination of the evaluator (variously called case analysis and evaluation by lawyers and litigation support, assessment and peer review by the mental health consultants); and

Schepard (2011) Speaks

 testimony by the consultant at trial” (p. 727).

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What we know from Research

 Bow, Gottlieb, Gould-Saltman, & Hendershot (2011) found that

 55 percent of family law attorneys responding to their survey reported referring their clients to mental health professionals to provide guidance during the child custody evaluation process.

 The most frequently cited reasons for family law attorneys to refer their clients to a mental health professional was to provide support during the evaluation process (47 percent) and to help the client understand the custody evaluation process.

What we know from Research

 Bow, Gottlieb, Gould-Saltman, & Hendershot (2011) found that

 None of the family law attorneys indicated that they referred their clients to mental health professionals to rehearse potential questions and answers.

 Among those attorneys who referred their clients to mental health professionals to assist with test-taking strategies, there attorneys reported that their referral was intended to reduce their client’s anxiety and help the client to understand the evaluation process.

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We agree. . .

 “It comes as no surprise that some litigating parents are well aware of their parenting deficiencies and enter the evaluation process hoping to hide or minimize their deficiencies and to claim, convincingly, parenting strengths that may be non-existent or present only to a marginal degree.”

 David A. Martindale (2010)

Comfort from Research Findings

 We also take some comfort in the Bow et al. findings that attorneys (at least those surveyed in the Bow et al. (2011) study) do not support the type of undermining of the evaluation process with the intention to present their parent-clients to evaluators “as being that which they are not.”

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Identifying the Unacceptable

Rehearsing a litigant's response to questions on standard psychological tests;

"Coaching" answers to an evaluator's anticipated questions that the litigant would not otherwise give;

Identifying the Unacceptable

Encouraging a litigant to make temporary and insincere changes in behavior solely for strategic, positive-impression-management reasons (e.g., telling a litigant to stop negative comments about the other parent in front of the children, suggesting or instructing a litigant to minimize or re-attribute a history of domestic violence, or suggesting a litigant become more involved in the child's activities for the purpose of creating a favorable impression on the evaluator); and

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Identifying the Unacceptable

 Suggesting that a litigant withhold important information to which an evaluator might otherwise not have access, such as prior allegations of maltreatment to child welfare agencies, prior criminal records or prior arrests.

Identifying the Acceptable

the child custody evaluation process, such as the role of the evaluator, the procedures typically used to conduct the evaluation, the kids of information that is typically requested, the limits of the evaluation, general information about testing, and how the opinion may be used by the trial court;

 developmental needs of children at different stages, including education about how children at various ages understand the events around them;

 how a child’s special needs may affect both parenting and planning for shared parenting;

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Identifying the Acceptable

 effect of parental conflict on children, including different types of conflict and how a child can be buffered;

 children’s response to divorce and what factors impact it;  the pros and cons of different parenting plans and what factors to consider when establishing a plan;

 attachment issues influencing parenting plans and access decisions;

 types of services or interventions that might be helpful for a variety of situations, such as domestic violence, alienation, sexual abuse, or substance abuse;

Identifying the Acceptable

 factors that may lead a child to resist contact with a parent including the role each parent may play;

 the pros and cons of mediation or collaborative divorce;

 the impact of relocation on children and how potential negative effects can be ameliorated;

 reviewing documents, correspondence or records, including medical, school, employment, and criminal records and discussing what is reviewed with the litigant;

 assisting a litigant in selecting collateral sources of information to be contacted by the forensic mental health evaluator;

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Identifying the Acceptable

 helping the litigant to understand the process of the forensic mental health evaluation to relieve some of the personal stress of going through it;

 making referrals for outside services. For example, the consultant might discuss a litigant’s difficulties with emotional regulation (e.g. anger management) or history of trauma and its impact on their heightened emotional arousal in interactions with the other parent or others, and make a referral for treatment;

Identifying the Acceptable

 consulting with the litigant to manage or create reasonable expectations, to identify and assess real concerns in the other parent, to organize and prioritize concerns, and to link requests logically to their history, prior concerns, and to the needs of the child or children in question; and  assisting the litigant with the development of a parenting plan for proposal to the other parent (Schepard, 2011, pp. 729 – 730).

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Order of Appointment in Child Custody Evaluation

 Scope of Order of Appointment

 What are the specific questions the evaluator is being asked to assess?

 (Decision-making authority, parental access, alcohol or drug dependency, mental illness, domestic violence, relocation, interference with parental access, etc.)

Purpose of a child custody evaluation?

 Provides Court with information about each child, each parent, parent-child relationship, and other relevant factors.

 American Psychological Association Guidelines and/or Association of Family and Conciliation Court Model Standards

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Purpose of the Evaluation

 Explain to the client/parent that the evaluator will assess:  Each parent  Each child  The fit between what the child needs and what the parent provides

Do you agree that it is appropriate for an attorney and/or MHP to talk to your client about the purpose of the evaluation and how it will be used?

Attorney Preparation

 Explain how the forensic evaluation is used by the Court to assist in its determination of the best interests of the child.

 Do you agree that it is appropriate for an attorney and/or MHP to talk to your client about the purpose of the evaluation and how it will be used?

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Explaining difference between forensic process and therapeutic process

Attorney and/or MHP will explain that

 Forensic Evaluator is not providing “therapy” to party litigant.  Waiver of Confidentiality.  Forensic report, notes, testing – nothing is “off the record”.  Custody disputes place client’s psychological functioning, medical and mental health condition squarely into issue.  Ensuring client cooperation with requests by forensic evaluator for signing releases/providing requested information.  Drug and other testing may be required/requested.

 Do you agree that it is appropriate for an attorney and/or MHP to talk to your client about the difference between forensic and therapeutic processes?

Explaining generally the forensic process to the client:

 Individual parent and child interviews  Information often elicited during evaluation from each litigant and of third parties/collaterals  Parent-Child interviews (in-office and home visits)  Parent-parent interviews (when it is improper/objectionable)  Parent-Child Observations  Home visits ( when appropriate)  Collateral interviews (typical collateral sources)  Selection of collaterals by parent/litigant  Selection/requests for collateral interviews by forensic evaluator  Psychological testing (when appropriate)

 Do you agree that it is appropriate for an attorney and/or MHP to talk to your client about the evaluation process?

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