National Family Civil Rights Center
The Issue:

Custody cases ask courts to do something unusual in the law: make a decision by predicting the future best-interests of children from past events (usually courts are called upon to make decisions solely about past events such as whether crime was committed or an event occurred).  To aid in this difficult task, family courts are frequently turning to "forensic experts" to perform custody evaluations and provide custody recommendations.

Experts in the fields of law, policy and science note that this is the most pressing and controversial topic in family law today for two principal reasons: (1) courts heavily rely upon the opinion and recommendations of experts which are derived through evaluation processes that occur outside of the scrutiny of the courts and (2) forensic experts are not equipped with the legal skills to determine the best interests of children out of the competing allegations of acrimonious parents.

All too often, forensic evaluators make judgment calls about the best interests of children from the information they are provided prior to trial without any way of evaluating the accuracy of the information reviewed.  Additionally, forensic evaluators are increasingly relying upon the unscientific concepts of "parental alignment" or "parental alienation syndrome" which are not based on proven parental acts but instead are a judgment about whether a child's preference for one parent over another is reasonable.

 As a consequence, parents and their attorneys, and children through their court-appointed law guardians, have no means to challenge the "evidence" used by forensic evaluators.  In many cases, parties are prohibited from even examining the work-product of evaluators which removes the fact-finding role from the judiciary to an ill-equipped evaluator.

Recommended Reading:

"From Dicta to Disarray: Split on the Domestic Relations Exception"
Circuit Splits (4/16/13)  

"For Arbiters in Custody Battles, Wide Power and Little Scrutiny"
The New York Times (5/23/04)

"Fighting over the Kids"
Newsweek (8/1/07)

"The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law and Policy"
Children Legal Rights Journal       (ABA; Vol 26, No.1, Spring 2006)

"Custody Forensics: Reform on the Horizon"
New York Law Journal  (3/7/13)

Forensic Evaluator Proposals Attract Wide Range of Opinions
New York Law Journal (5/14/13)

"Matrimonial Commission: Report to the Chief Judge of the State of New York"
State of New York Unified Court System (February 2006)

"Dangerous Child Custody Forensics"
Court Watch - UCF (6/27/11)
NFCRC's Position:

Any expert opinion or recommendation in a custody proceeding is inadmissible unless all the documents reviewed and interviews made by a forensic evaluator are held as testimonial evidence subject to cross-examination at trial: forensics cannot serve as fact-finders. 

If you have an appellate case which squarely raises this issue, and would like to request the Center's Amicus Curiae Working Group support in your case, please click here.
Contact NFCRC:

(800) 385-0601  (phone)
(202) 640-4433  (fax)