Why Family Court Should Discontinue The Use Of Forensic Investigators In Custody Battles

Many women that go through custody battles are accused of being crazy. "She's crazy!" "She's mentally ill!" "She has ______ (fill in the name of any psychological diagnosis here)". All of a sudden, everyone going through custody battles becomes an expert in psychological disorders. Psychological diagnosis are a surefire way to lose custody of your children, and therefore many contentious exes will try to use this argument to win custody. There are those who actually suffer from psychological disorders which prevents them from effectively parenting, but those cases are rare. There are also those who suffer from a psychological disorder but are successfully managing their condition, and it does not interfere with their ability to parent as long as they are following the steps to ensure they stay on track (psychiatrist monitoring, medication, etc.). I'm not talking about these people. I'm talking about false accusations of mental illness, which leads to the court ordering a Forensic Investigation. I had a very unique experience in this regard and I wanted to share my experience with this.

I have a huge issue with the use of forensic investigators in the Family Court custody determination process. When someone alleges psychiatric issues, they can request a Forensic Investigation. The forensic investigation is done by a psychiatrist or psychologist assigned by the court. This person is supposed to determine whether you are psychologically fit enough to have parental responsibilities. The forensic investigator will meet with you and the children, as well as speak to those involved in your life. They will give you a myriad of diagnostic tests such as a DSM-5 test, a Rorschach, etc. The process is inherently defective on it's face because they may only meet with you once or twice while you are in the process of an extremely stressful custody battle, and they do not get to assess you under normal conditions, so they are not privy to your baseline behavior and cannot make an accurate determination pertaining to your state of mind. These individuals are supposed to be neutral, but in reality they are human and prone to biases and prejudices just like everyone else. They are in a position to pivot a situation in a way that fits in with their narrative, making it extremely dangerous to those they do not favor. In New York, forensic investigators can get away with incompetence and misconduct without fear of retribution, because the state is unable to properly investigate any claims due to court records being sealed. 

The forensic investigator in my case reminded me of a tenured professor who had been living in an echo chamber of academia for decades and relied solely on behavioral theory, while being completely out of touch with reality. I'm very social and get along with everyone, but in rare circumstances I bump into a few personality types which I don't mesh with. To my chagrin, this was one of them. At our first meeting, I felt off-kilter and tried to break the ice by cracking a joke comparing the situation to that of Solomon in 1 Kings 3:16-28, but it did not go over well. To make matters worse, I was not coached in how to properly respond and act during the interview, and I was completely unprepared (remember- Family Court rules defy conventional logic). I felt the interactions with him to be awkward, and that he had already made up his mind about me within the first few seconds of meeting me and therefore pigeonholed me.  This was especially apparent during the Rorschach test when held up Card VI and when I said it looked like an animal skin rug, he asked "Are you SURE that's what you see?" and I said yes, because I owned one at the time and that's what it reminded me of. He then goaded me by asking what else I saw, as if he was trying to procure a certain answer. He was equally disappointed with my answer to Card VII when I said that it looked like two best friends having an intimate conversation and sharing secrets and gossip. I felt that his report was narrated in a way which exacerbated benign occurrences for maximum effect. In his report he wrote that the children did not respond to my request to clean up when I sang "the clean up song" which indicated that my parenting was ineffective. At the time, my developmentally delayed son was 1.5 and my daughter was 2.5. It would have been a miracle if they did obey my request. I tried to explain that I was conditioning them through song rather than expecting the request to be immediately executed, but to no avail. He also indicated in the report that in his opinion I was suffering from a specific psychological condition, despite never having been diagnosed with it and the objection of everyone he interviewed and my passing all of the psychological tests he gave me. Not to mention that the evaluation cost us $30,000 in total. When I was allowed to read the report, I begged and pleaded with my lawyer to contest the report and was extremely displeased that he did not even try. I think he might have been holding off because he was convinced that we were heading to trial, but in the mean time all the judge saw was this piece of trash report that no one contested. There is a maxim in law called "Qui tacet consentit", roughly translated as "Who keeps silent, consents". Lastly, some judges don't even take into account the forensic report, which means you spend all of this time and money for nothing. The only people I've ever met that were happy with the forensic report were those that benefited from using it to win their custody case. 

Most people are never given access to their report. That means that they cannot object to or defend themselves against lies or falsification. I was allowed to briefly skim my report. While sitting in the courtroom, I observed my ex and his cousin looking through the report and stifling laughter. His cousin happened to be a lawyer, but was not the attorney on record. His cousin was also a peer, and before the divorce we all hung out together. The idea of him seeing and potentially sharing intimate and private details of my life was traumatizing and stressful. Although there are provisions preventing the report from being shared, there are no guarantees that it will not get leaked somehow. 

Based on my experience and objective opinion, the use of forensic investigators should be discontinued or extremely limited in Family Court for the following reasons:

• There is a fatal flaw in the diagnostic process due to the fact that the forensic investigator has never observed the baseline behavior of the individuals and only observed them under the stressful conditions of a contentious custody battle, making it impossible to determine if the exhibited behavior is the result of stress rather than an indication of a psychological disorder.

• The forensic investigator is susceptible to cognitive bias and prejudice which could potentially influence the tone and narrative of his report. 

• Most individuals are prevented from seeing the report, making it impossible for them to defend themselves against lies and falsification. 

• The report can potentially be used by spouses to shame and abuse the other spouse. Although there are provisions preventing the report from being shared, there are no guarantees that it will not get leaked somehow. 

• The forensic investigators opinions can be used as a fact, when it is in fact just an opinion.

• Forensic investigator incompetence and misconduct cannot be investigated by the state due to the fact that court records are sealed (at least in New York), leading to rampant and unchecked abuse. 

• The forensic investigation process is extremely expensive and financially burdensome to the individuals, although we all know that the court could care less about our financial suffering. 

In conclusion, it is due time that Family Court discontinues the use of forensic investigators in custody battles.