The thousands of comments to the recent report of attorney David Schorr’s defamation suit filed against court psychologist Marilyn Schiller are mostly incredulous, along the lines of how can a father be penalized for what most agreed is good parenting. Schiller had recommended that Schorr’s visitation be curtailed when he refused to take his son to McDonald’s for dinner. After all, any five year old who throws a tantrum when told what’s for dinner and is given the choice of “no McDonald’s” or “no dinner,” should learn a lesson in consequences. Although it is unclear whether the father brought the child home early from his scheduled visitation (possibly indicating that he could not handle his son after all), or whether he has a history of poor conflict resolution with his son, it is hard to dismiss the possibility that the psychologist may have a bias against the father.
Bad as that might be, the bigger problem is having the fate of your family decided by a stranger. It’s bad enough, in a divorce case when the parties are unable to agree, that the court must make custody and visitation determinations. At least there are procedural guarantees including, if necessary, a trial at which witnesses can be called and cross examined, to help ensure that the court’s decision will be an informed and impartial one.
But the consolation of due process often falls flat when the court relies on a forensic psychologist. The purpose of a forensic psychologist is to assist the court with a recommendation concerning custody and/or visitation. That recommendation usually appears in a written report (sometimes a series of reports) issued after interviewing the parties and the children, administering psychometric tests and reviewing collateral source material. Since the psychologist’s conclusions can weigh heavily on the court, this places the “losing” parent in the position of having to explain, at trial and even sometimes at a conference, why the court should not adopt the psychologist’s recommendations. This would be less of a problem if there were at least a fair hearing in store. However, instead of a hearing at which the conclusions of the psychologist can be vetted against the underlying data, the trend in New York courts has been to limit cross examination severely. This leaves the parties at the mercy of the psychologist’s conclusions because they cannot be effectively challenged.
Several cases have rejected attorney efforts to get a psychologist’s records — the notes, test data, and other records, including collateral source materials relied upon — that are needed to show whether the psychologist’s conclusions were reasonably based, or were instead the product of bias or incompetence. In his 10/31/13 article in the New York Law Journal, attorney Alton Abromowitz discussed this trend, summarizing four reported cases that rejected or limited disclosure demands. The most recent of the cases, CP v. AP, 32 Misc. 3d 1210(A); 932 NYS2d 759, is a 2011 Manhattan divorce case in which the judge denied the mother’s application for an order directing the forensic psychologist to produce his notes and test data. The court held that the mother had not shown “special circumstances” such as bias or a deficiency in the report, that would justify “the potential harm of disclosure to the parties’ relationships and on the evaluation process.” Instead, the court held, the mother could ask again for the notes and test data at trial if a showing of bias or other reason to doubt the credibility of the report arose at that time.
The reasoning in CP v. AP is based on the earlier cases cited by Abramowitz, and is particularly alarming because this case comes after the 2006 release of the New York State Matrimonial Commission Report which strongly recommended that forensic psychologist testimony should not be handled any differently by the courts than other kinds of expert testimony. In other words, the party opposing the expert’s conclusion should have free access to the “underlying notes and test data, including raw test material,” that (hopefully) formed the basis of the psychologist’s conclusions. Really, this is the only way effective cross examination of an expert can be conducted. Unless the information and material the expert relied upon can be compared to the conclusions he/she reached from that material, there is no way of knowing if the expert was justified in reaching his/her conclusion. There could be any number of reasons that the conclusions are unsupported — oversight (perhaps unintentional), untested assumptions, incompetence, bias or hostility, to name a few — but only a review of the data can disclose this. Disclosure of the underlying records is not something that can await the day of trial when the expert is already on the stand, since it is unlikely that there will be any reason to doubt the opinion when the lack of underlying data makes the examination superficial. Although most forensic reports reiterate the data that support the psychologist’s conclusions, the report will usually not disclose notes and raw test data that would contradict the conclusions.
The Matrimonial Commission was correct to recommend access to records without needing to show “special circumstances” because not every case of bias is immediately obvious just from hearing the psychologist’s conclusions. To argue otherwise is circular: If a showing of bias is needed to get the underlying records needed to show bias, it is unlikely that any bias or other underlying problem will be exposed at trial.
The potential consequence of protecting a psychologist’s notes and raw test data from disclosure is poor court decisions based on poor information. When it’s your child’s well-being at stake, you have a right to true due process, including the right to meaningful cross examination. Nobody should have to be told what is best for his kids by an unquestioned stranger dictating unsupported conclusions.