Psychologists Wanting to Help Clients Involved with Legal Matters[1]
Neil S. Grossman, Ph.D.
Psychologists occasionally meet individuals or a family who believe they have been unfairly dealt with by the legal system. That the court misunderstood a situation and based on that misunderstanding judicial decisions were made that had a negative impact on them. In some situations people believe the court was biased or in a rare instance, corrupted. These people want to convince professionals of the injustice that has befallen them with the hope that they will be able to correct the situation.
After hearing their story, evaluating the people and facts regarding this situation a psychologist may become convinced of the validity of their story and want to help correct the errors that were made or inform the authorities of information that was overlooked or incorrectly interpreted. However, a caution light should come on before any psychologist jumps into assisting people who are involved in the legal arena. For the information to be helpful psychologists need to understand the complexities of the legal system, how the legal system operates, and the psycho-legal question before the court. Without this knowledge there is little chance that our contribution will be heard. (Note – this is part of the knowledge base of a family forensic psychologist.)
It is difficult for an outsider to correct a court’s misunderstanding or provide additional information to the court. If a psychologist conducts an independent evaluation of an individual or family the psychologist will have difficulty bringing this information to the attention of the court. Courts have structured procedures and will not consider information that is presented outside of this structure. For example, courts are likely to take action based on a properly filed motion from the attorney of one of the litigants. Courts only review or rethink a judicial decision under certain specified conditions. A litigant’s attorney can file an appeal based on a perceived procedural error of the trial court. In New York State the Court of Appeals generally focuses on broad issues of law as distinguished from individual factual disputes. To complicate this description, on a national level, courts in each jurisdiction frequently operate differently based on their procedures (administrative rules), statues and relevant case law within the state. Therefore, it is important to understand the judicial system in the jurisdiction in which the case was heard.
When the court has a question it can order an evaluation from a neutral expert. Also, attorneys in presenting their case to the court can use the testimony of experts to support their opinion or refute the opinion of the other side. Sometimes this can result in “dueling experts”. An attorney may ask a psychologist to provide an evaluation of their client. Unless the evaluation is court ordered, the psychologist will frequently not have access to the other participants in the case and therefore the conclusions of the evaluation will be limited to statements about the attorney’s client. The attorney’s expert may be regarded as a “hired gun”, partly since the attorney who hired the psychologist for the evaluation has the discretion of whether or not to use this material based upon whether it supports the attorney’s case.
When a psychologist agrees to conduct an evaluation the psychologist will have to decide what to include in the psychological evaluation based on any court order, the facts of the case and the attorney’s legal strategy. Considering an understanding of the legal strategy for this case, the psychologist may decide how the material from the evaluation should be presented. Of course, what a psychologist includes in an evaluation, how it is conducted and reported is shaped by the ethics of our profession.
A psychologist consulted me about a case involving a man who was separated from his wife for 20 months. After a trial the two young children were put in the custody of his wife. The psychologist believed that this man was a victim of an extreme campaign of adult bullying by his wife. There were multiple physical and social/legal efforts to make this man appear unstable and an unfit parent. The wife lied and fabricated information that was believed by the court. The psychologist contacted me wanting to know what tests to include in the evaluation of this man. Rather than recommend specific tests we discussed the difficulty a psychologist would have in getting the court to consider the information provided by an evaluation. A strategy of how to accomplish this should be the first step before an evaluation is designed. Deciding what to include in the evaluation will be easy compared to this first step. What strategy to adopt in getting new material before a court may be best answered by a forensic psychologist and attorney working as a team.
In another divorce case, a woman had been physically abused by her husband, a police officer. The couple had two girls ages 7 and 8 years old. The mother was an emotional wreck and did not present well in contrast to her husband who gave a polished presentation. The court granted custody to the husband. After this court decision the woman and her attorney had an evaluation conducted by one of the leading experts in domestic violence. They tried to present this new material to the court but the court would not “hear” the material. The father with the children moved to another state, some distance away, where he met another woman and remarried. The children and the husband’s new wife had a conflictual relationship. A year later the father and his new wife had a child. The original children remained with their father until the son was 16 years old when they ran away and went to the mother. The father only made half-hearted attempts to get them to return to him.
People can have a court order reversed, even without an attorney. However, this can be a long and hard process. I recently had professional contact with a father who had been accused of abusing his son. The Child Protective Services (CPS) evaluation concluded that the father did abuse his 12 year old son and custody of the son and a daughter, three years younger, was awarded to the mother. While the father was granted supervised visitation by the court, he basically did not see his children for five years. He explained that his ex-wife would continuously find reasons to cancel the scheduled supervised visitations. The father sought legal recourse but to no avail. During these five years the father continued his quest, representing himself in court. Finally, he was able to get the CPS finding overturned and he then took his case to the Court of Appeals which found a number of irregularities. The case went back to a trial court where the original custody decision was overturned and custody was awarded to the father with the mother having supervised visitation because this court believed that there was a history of the mother interfering with the father’s visitation. Perhaps we would like to think that justice won out and although it took many years a wrong was corrected. It sounds like this happened but we will never know. I had the opportunity to speak with the daughter who claimed that her father had abused her brother. I wonder if this happened or if the mother successfully twisted the daughter’s mind so she believes abuse occurred. The daughter’s report raises a new set of questions, e.g., did some type of alienation occur. The saving grace is that the children are older now and not in danger of being abused.
This last case highlights the fact that we learn about our client’s reality and not the “truth”. Courts have been established to make decisions about the “truth” and sometimes they find this task difficult.
[1] The Family Psychologists, 2011, 27(1), 18-19.