Originally published: . Volume 7, No. 5. Source pages: 4.
Senator Troy Carter has put forth a bill that is pending in Committee, and which would dramatically change how results from forensic psychologists are used in court.
Among changes would be a prohibition that the judge “… read or consider any report prepared by a mental health professional, until such time that the report is duly admitted into evidence…” and “all parties have been allowed the opportunity to cross-examine the mental health professional in open court.”
Also in SB 461, “A mental health professional’s opinion on the credibility of a person shall not be admissible, …”. And, “A mental health professional shall not be permitted to testify to an opinion concerning the application of substantive law to the parties…” and other matters.
The Times asked forsensic psychologist Dr. Alan Taylor for his comment on the proposed legislation. Dr. Taylor has over 30 years of work in independent practice and 20 years of focus on family court issues. Dr. Taylor provided a review about SB 461, which we include here in full:
“GENERAL
The proposed changes in Senate Bill 461 represent a rather thinly disguised attempt to undermine and reverse the progress of more than 50 years of establishing a model for family court that emphasizes a collaborative approach and partnership between legal and mental health professionals. This approach recognizes that family court is a distinctly different type of court more resembling a social service agency, with the goal of helping families through the divorce process in a way that minimizes conflict and promotes the best interests of the children and family as a whole. In this model the legal and mental health professions work together as colleagues to avoid the damage that is done by litigation.
The old adversarial model with a “win or lose” approach has long since faded into the background, but is still present in some family court systems and also in the mind of individual practitioners, primarily attorneys trained in the adversarial model.
SPECIFICS
Bill 461 represents some long-established rules and requirements that have been in place for years and are redundant and unnecessary. Primarily, because they are part of the standard ethical codes of all major professional organizations.
However, there are several proposed changes that are extremely serious in their potential impact on family court work. I will outline these below.
Section B would require that a child who is witness to or a victim of alleged domestic violence or child abuse, must provide testimony on the record in chambers to the court. Children should not automatically be required to testify for the following reasons:
• This is likely to be severely damaging to the child’s emotional well-being, since the testimony can precipitate damaging parental reactions.
• If the child is in therapy, their relationship with the therapist will be compromised and they will learn that mental health professionals are not to be trusted and cannot protect them.
• There are wide variations in children’s capability to testify and the court and the judge would be ill-suited in terms of sophistication or expertise in interviewing children as compared to mental health professionals.
• Section 8 of the proposal states that all parties shall have the right to access the entire file of the mental health professional regarding the case. The most common practice in many jurisdictions is to consider that the official custody evaluation report is considered to be “the file”. This report is submitted to the attorneys and the court with the opportunity for attorneys to cross-examine it and raise any questions that they have. Access to the entire file exposes the risk that information provided by the children will become available to the parents and this can produce damaging reactions. Children will learn that they cannot rely on the mental health professional to maintain confidentiality. Statements made by the parents can inflame an already hostile situation and shift the focus from resolving conflict to continued fighting, striking a serious blow to settlement prospects. The file then becomes something for the attorneys to fight over.
The custody evaluator is appointed by the court and is an officer of the court. They occupy the same neutral and objective status and the presumption of competence and ethics as does the judge. If there are serious issues, a complaint can always be made to the mental health professional’s board. Attorneys do not have to give up their “work product” or have their files examined – why should court ordered professionals have to do so?
• Part C2 of the proposed bill prohibits any type of contact between the mental health professional and the court. It is understood that particulars of the case should not be discussed privately in advance, but this proposal does not allow any discussion of procedural issues or clarification of questions that the judge may wish answered, and essentially keeps both sides operating “in the dark”, defeating the purpose of the evaluation.
• Section D of the proposed bill states that the absence of an arrest or official finding concerning abuse allegations shall not be considered as proof that the alleged conduct did not occur. While this statement is valid (and common sense), the opposite situation is not addressed. The most common problem is that allegations are raised for which no proof is ever offered, but the court “out of an abundance of caution” imposes severe penalties on the person whom the allegations have been made, without a trial or finding of guilt. Parents can wait for months or years under severe penalties when they have actually never had their day in court. The language in this section should address the equally serious problem of presuming a parent “guilty” without any previous official findings.
The above list of serious problems does not exhaust all of the problems with the bill. In general the bill is either almost entirely redundant or extremely dangerous in terms of limiting and sabotaging the ability of mental health professionals to conduct their roles in a professional manner.”
[Editors Note: Dr. Alan Taylor is presenting as part of a forensic psychologists panel this month at the Louisiana Psychological Association Annual Convention, discussing these and similar matters regarding family court.]
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