Lawyers Manual - Unified Court System

Litigating Custody and Visitation 71
tells the law guardian that she understands the importance of the relationship
between the other parent and the child.
Forensics
Along with the position taken by the Law Guardian, the conclusions of
forensic reports, also known as psychological evaluations or mental health
studies, are likely to profoundly influence the outcome of the custody or
visitation case. Although judges are encouraged by the Appellate Division to be
independent, 53 they are also encouraged to order, and accord significant weight
to, forensic reports. 54 In most instances, courts tend to rely heavily on experts.
Legal precedent requires forensic evaluators to address domestic violence,
although it is not uncommon for evaluators to minimize its impact on the child.
In Wissink v Wissink, 55 the Appellate Division reversed an order of custody to the
father and held that “the fact of domestic violence should have been considered
more than superficially, particularly in this case where Andrea [the child]
expressed her unequivocal preference for the abuser while denying the very
existence of the domestic violence that the Court found she witnessed.” 56 The
court found that the forensic evaluation failed to adequately address the reasons
the teenager expressed a desire to live with her abusive father and directed the
lower court to order a comprehensive psychological evaluation.
Section 722C of the County Law permits the use of experts paid by the City.
Most experts are chosen from lists provided by the 18b panel, and choices are
generally made by reputation in the community. It is crucial that you investigate
any expert you are considering recommending or suggesting to opposing counsel
or the law guardian, not just by getting a copy of the curriculum vitae or resume,
but by speaking with the expert and specifically asking what his or her experience
has been with domestic violence. For additional information, speak to other
advocates and practitioners to see if they have had experience with the expert.
Prepare your client for her interview with the forensic evaluator much in the
same way that you prepared her for the interview with the law guardian. This
preparation is of critical importance to the outcome of the case so be sure to
spend at least one session with your client on it. Work with your client so that
she is able to recount clearly and without an angry or overwrought affect the
history of the domestic violence and to demonstrate her commitment to her
safety and that of the child. At the same time, unless the batterer was abusing
the child or involved in activities that posed a direct threat to the physical safety
of the child, she must also communicate her awareness of and support for the
child’s relationship with that parent. This is not an easy task to say the least.