Lawyers Manual - Unified Court System

Litigating Custody and Visitation 73
The American Psychological Association (APA) has set forth sixteen
guidelines for forensic evaluators in custody case, which can be very valuable
in cross-examination. The guidelines require that the expert gain specialized
competence, that he or she be aware of personal and societal biases, that he or
she use multiple methods of data gathering and maintain written records, and
that the scope of the evaluation be determined by the evaluator based on the
nature of the referral question. 62 Many experts in domestic violence custody cases
do not use multiple methods of gathering data, for example, by interviewing
collaterals. Experts in domestic violence cases often do not limit the scope of their
evaluation to the assigned task but instead attempt to mediate. The guidelines also
require the expert to “gain specialized competence” in conducting child custody
evaluations. This includes an understanding of applicable law, child development,
substance abuse, and domestic violence.
If the attorney concludes that cross-examination will not be sufficient to
undermine the expert’s recommendation, an additional expert may be retained by
the client. However, if the judge will not permit the expert to examine the child a
second time, this may not be particularly helpful. A motion for funds to retain an
additional expert may be made pursuant to Section 722C of the County Law.
Parental Alienation
The issue of parental alienation often arises in domestic violence cases.
Frequently, the batterer or his attorney will accuse the victim of communicating
messages to the child that alienate him or her from the abuser. The victim’s
efforts to protect herself and her children may be misinterpreted by courts,
lawyers, and experts as parental alienation. Neither psychological theory, 63 nor
case law, 64 supports this interpretation, and the attorney for the victim should
vigorously challenge it.
Visitation
The initial temporary order for visitation will likely determine the course of
visitation throughout the case. Visitation is easily expanded but rarely restricted.
Therefore, the schedule of visits between the abusive parent and the child
should start slowly, expanding gradually, if all goes well, from supervised visits,
to several hours of unsupervised visits, to full days, and then to overnight and
weekend visits.
Often in cases involving allegations of domestic violence, the visitation is
initially supervised. This arrangement protects the child and gives the victim
peace of mind. There are many possibilities for supervised visitation: supervision