William G. Austin, Ph.D. ACCS dba

Austin Child Custody Services dba

(303) 670-6767 voice   (303) 217-8990 fax
Office: 710 Kipling, Ste. 306, Lakewood, CO 80215
William G. Austin, Ph.D.
Licensed Psychologist
P.O. Box 3939
Evergreen, CO 80437
Email: wgaustinphd2@yahoo.com
Home · Attorney Services · Relocation & Child Custody Evaluation · Domestic Violence · Parental Gatekeeping and Alienation

Evaluation Services · Forensic Methodology · Curriculum Vitae · Work Product Review Service · Brief-Focused PRE

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Colleague Case Consultation - Custody Evaluation

Forensic Services of Work Product Review of a Child Custody Evaluation
and Related Attorney Consultation

Dr. Austin is often retained by attorneys to conduct a review of the quality of a child custody evaluation [or in Colorado a Parental Responsibility Evaluation or Child & Family Investigator evaluation (CFI)] conducted by a colleague. This is a work product review and the forensic role is that of a Reviewer. This is an emerging forensic role and becoming more common. Instead of requesting a second custody evaluation (or PRE or CFI) an attorney who feels the evaluation was flawed may advise his or her client that it would best for the attorney to retain an expert to conduct a review of the custody report.

Dr. Austin and his colleagues have published four articles on this forensic role and service. These articles constitute the majority of the professional literature on review work. They are available or will soon be available to be downloaded from the website (Gould, Kirkpatrick, Austin & Martindale, 2004, Journal of Child Custody; Austin, Kirkpatrick & Flens, in press, Family Court Review, 2011; Austin, Dale, Kirkpatrick & Flens, in press, Journal of Child Custody, 2011; Kirkpatrick, Austin & Flens, in press, Journal of Child Custody, 2011). These articles describe the process of conducting a work product review; professional and ethical issues involved with review and attorney consultation work; and how to be an effective and helpful expert witness for the court while in the role of being a retained expert.

The forensic service of work product review places Dr. Austin in the role of a consultant to the retaining attorney. If the work product/evaluation/report has deficiencies, then is likely that Dr. Austin will become a testifying expert and he will provide some degree of attorney consultation to facilitate expert testimony that is helpful to the court.

The first step in conducting a review starts with the attorney indicating he wants Dr. Austin to conduct a review of the custody report because the attorney feels the court-appointed custody evaluator’s opinions do not correspond with the issues and data in the case; the issues were not properly addressed or analyzed; important factors were not afforded sufficient weight; the forensic methodology was flawed; or there was confirmatory bias shown by the evaluator. The attorney basically thinks the evaluator did not get it right for the court on the ultimate issue opinions about custody and parenting time.

Second, a retainer agreement is executed between Dr. Austin and the retaining attorney. The agreement makes clear that Dr. Austin will first conduct an objective review of the custodial report with no expectation that only weaknesses will be highlighted. The review will be a balanced, objective analysis of the strengths as well as any weaknesses of the report. This is why the service is called a review and not a critique. Dr. Austin conducts a meticulous review of the report and may concurrently create a document of “notes & analysis” of the report to assist in preparing a report if one is requested by the attorney. While Dr. Austin is a consultant to the attorney in conducting the review, there is an ethical duty based on professional guidelines for psychologists to provide an objective review of the data in the report, analysis of the issues, formulation of opinions about the quality of the work product, and to provide accurate interpretations of the data gathered by the evaluator. In this way the retained expert can be viewed as credible by the court even though the expert is retained by and paid by the attorney.

The third step in the review process is to give the attorney candid feedback on the quality of the custody evaluation based on reading the report. If Dr. Austin feels the custody report shows the evaluation was competently conducted and the opinions are reasonable and correspond with the data described in the report, then he will so inform the attorney. Minor methodological flaws are not a basis to challenge the accuracy of a custody report and evaluator’s opinions. When the feedback to the attorney is that the evaluation was of adequate quality it may be the end of Dr. Austin involvement in the case. The other attorney would not know Dr. Austin had conducted a review because there is attorney-client privilege that applies to the attorney retaining Dr. Austin as a consultant. Occasionally, attorneys will request that Dr. Austin conduct a review of a report that is favorable to the attorney’s client in the hope that the objective review will affirm that the evaluator’s methodology and opinions are sound. The attorney then may want Dr. Austin to testify to affirm the evaluator's favorable opinions.

If the feedback to the attorney is that the evaluation contains significant deficiencies, or even clear "fatal flaws," then the attorney probably will request that Dr. Austin be identified as a testifying expert. At this point Dr. Austin would be identified as an expert witness and the protection or confidentiality afforded by attorney-client privilege would no longer apply. Dr. Austin may or may not be asked by the attorney to prepare a written report, affidavit, or declaration about the substance of the anticipated testimony, depending on the state rules of civil procedure and legal strategy of the attorney. The retaining attorney will also want to obtain the evaluator’s complete file for Dr. Austin to review. Some psychologist evaluators will refuse to release the psychological testing raw data so the attorney will want to instruct the evaluator to send the testing data directly to Dr. Austin.

If Dr. Austin is retained to provide testimony, then he will provide some degree of consultation to the attorney to assist in eliciting the best possible expert testimony for the court. He usually will assist in the preparation of questions for his direct examination.

If, after an objective review, Dr. Austin concludes there were serious deficiencies in the custody evaluation, his opinions would obviously be helpful to the retaining attorney’s client and legal position, but the retaining attorney needs to understand that it is Dr. Austin' ethical duty is to be objective in his review and analysis and to be accurate in his expressed opinions and therefore helpful to the court. Only by adhering to the principles of objectivity and accuracy can Dr. Austin be viewed as credible by the court and be helpful to the attorney as well as the court.

In the role of expert-reviewer, Dr. Austin usually will provide some degree of Instructional Testimony on the research and professional literature on important issues such as relocation, parenting time plans, overnights for very young children, conflict & decision making, intimate partner violence and child custody, etc. He may give testimony on one or more of his forensic models for child custody evaluation. For example, if Dr. Austin has reviewed a custody evaluation for a relocation case and is giving testimony, then he usually will be asked to describe his relocation risk assessment forensic model, describe research in support of the model, describe research on the effects of relocation on children of divorce, and discuss risk management strategies in a long distance parenting plan.

In the role of reviewer, Dr. Austin will not offer opinions on the ultimate issues in the case. Since he has not evaluated the parties or child in the case, he will not offer opinions about custody, parenting time, and allocation of decision making authority. Professional standards (APA Code of Ethics) do allow Dr. Austin to formulate and express opinions on a wide range of other issues that may be important to the case if the opinions are based on sufficient information. Dr. Austin will have reviewed the custody report and the evaluator’s entire case file. The evaluator and reviewer share the same dataset. Dr. Austin usually will hear the testimony of the expert-evaluator, and sometimes other witnesses. Dr. Austin can express opinions on the correct interpretation of data in the evaluator’s report and file, for example, on how to interpret the psychological testing data. He can express opinions on the quality of the forensic methodology employed. He can opine if the evaluator’s opinions are supported by the data. He can opine on intermediate issues in terms of having examined the evaluator’s supporting data on those issues, e.g., do the data show how well the parents can support the other parent-child relationship?

The reviewer needs to be experienced and an expert in child custody evaluation and knowledgeable about the many issues associated with custody evaluation. Child custody evaluations are probably the most complex of any type of forensic mental health evaluation. The stakes are very high due to the future of children being pondered by the court. Judges therefore need to carefully scrutinize the quality and accuracy of the evaluations opinions and recommendations that are being relied upon. Research unfortunately shows it is not uncommon for there to be issues of quality and accuracy in the custody expert’s opinions. The function of the review is assist the court in examining quality in procedures; if sufficient data collected; if there was accurate analysis; it opinions were consistent with research; and if there was an absence of evaluator bias in making interpretations and recommendations. The reviewer serves a forensic quality control function, or a checks & balance function to safeguard the best interests of the child. A poor quality custody evaluation will be misleading to the court.

When the custody evaluation is of poor quality the reviewer’s report and/or testimony is intended to be educational for the evaluator’s professional development as well. The reviewer needs to be respectful of the evaluator in the process of discussing the weaknesses and deficiencies in the evaluation and report.

Gould, Kirkpatrick, Austin & Martindale’s (2004) article provides a structure or protocol for reviewing a forensic child custody evaluation and report. The three more recent articles listed below describe complicated issues in providing forensic consultation services in the role of reviewer and testifying expert. In reviewing and analyzing the quality of the custody report and case file, some of the questions the reviewer will ask are the following:

  • Did the evaluator identify and try to answer the main legal and psychological issues for the case?

  • Did the evaluator stay within the scope of the court order of appointment, e.g., recommend changes in decision making when that issue was not in any motion or the order?

  • Did the evaluator show the necessary understanding of the relevant and controlling statutory and case law to ask the correct questions and gather the necessary data?

  • Did the evaluator use generally accepted forensic procedures to gather data?

  • Did the evaluator competently and accurately interpret psychological testing data?

  • Did the evaluator use tests or instruments that were inappropriate for forensic setting?

  • Did the evaluator use tests or instruments with unacceptable reliability or validity such as human drawings, sentence completion, or TAT?

  • Did the evaluator collective the necessary and sufficient data in parent interviews, or collect long enough interviews?

  • Did the evaluator observe parents with children or interview the children if old enough?
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  • Did the evaluator collect a sufficient number of collateral interviews and with the key individuals?
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  • Did the evaluator only interview collaterals who are professionals and not gather interview data from family, friends, neighbors, etc.?

  • Did the evaluator so enough investigation on key issues or allegations?

  • Did the evaluator review the appropriate records and documents to address important questions?
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  • Were records/reports critically examined or just accepted at face value, such as DHS/DSS/CPS investigative reports or police narratives?
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  • Were alternative hypotheses fairly considered or did there appear to be a preferred hypothesis so that data were selectively considered and weighted?
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  • Was there indication of confirmatory bias?
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  • Did the opinions and recommendations correspond with the underlying data gathered and in the case file?
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  • Were the opinions reasonable in light of the professional literature and research, overnights for young children, conflict & decision making?
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  • Did the evaluator demonstrate an understanding of relevant research?
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  • Did the evaluator use psychological concepts in a way that was helpful to the court and supported by literature, e.g., alienation, parent conflict, attachment, etc.?
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  • For complex issues, did the evaluator use a systematic approach or follow existing forensic evaluation models, e.g., relocation, allegations of intimate partner violence, child alienation?
  • It is more useful to understand the testifying reviewer as providing different forensic services in the consulting role and as a retained expert. The reviewer will conduct an objective review of the custody report; provide candid feedback on the quality of the work product; may testify if there is a deficient work product; will provide trial consultation to facilitate accurate and effective testimony; and will provide some degree of instructional testimony for the court. These complementary forensic consultation services in the role of a reviewer are not dual roles or constitute role conflict. The services are all provided in the role of the reviewer-forensic consultant-testifying expert. Effective testimony and striving to be helpful to the court requires the expert witness to consult with the attorney. The sequence of services is important. Before consulting about legal strategy to facilitate effect expert testimony, it usually will be the best practice to first conduct an objective review of the custody report.

    In conducting a review, the consulting psychologist needs to be mindful of the distinction between the "best practices" criteria of how to conduct the highest quality evaluation and a "minimally acceptable" approach to use of forensic procedures, extent & quality of data collected, and level of sophistication and accuracy in data interpretation. Another important consideration for the reviewer is to formulate an opinion if the evaluator's opinions are supported by the underlying data, or if the necessary data were collected. This process results in the reviewer opining if the evaluator "got it right for the court" on the bottom-line, ultimate issues in the case. The reviewer will not opine on the ultimate issues of choice of a residential parent, best parenting time schedule, or allocation of decision making authority, but the reviewer can and should opine if the evaluator's opinions on these issues were supported by the evaluator's data and quality of analysis. In some cases, the reviewer may opine the evaluator did not collect sufficient data to have an adequate basis for opinions. In others, the reviewer may opine that the evaluator's analysis was flawed in terms of the weight assigned to certain factors or due to confirmatory bias and not properly considering viable alternative hypotheses or explanations on salient issues.

    Articles on Expert Testimony, Work Product Review, and Forensic Consultation

    Austin, W. G., Kirkpatrick, H. D., & Flens, J. R. (2011). Expert Roles in Child Custody Cases: Work Product Review, Case Consultation, and Case Analysis. Family Court Review, 49.

    Austin, W. G., Dale, M. D., Kirkpatrick, H. D., & Flens, J. R. (2011). ). Forensic expert roles and services in child custody litigation: Work product review and case consultation. Journal of Child Custody: Research, Issues, and Practices,8(1).

    Kirkpatrick, H. D., Austin, W. G., & Flens, J. R. (2011). Psychological and legal considerations in reviewing the work product of a colleague in child custody evaluation. Journal of Child Custody: Research, Issues, and Practices, 8(1).

    Gould, J. W., Kirkpatrick, H. D., Austin, W. G., & Martindale, D. (2004). A Framework and Protocol for Providing a Forensic Work Product Review: Application to Child Custody Evaluations. Journal of Child Custody: Research, Issues, and Practices, 1(3), 37-64.

    Critiquing a Colleague's Forensic Advisory Report: In PDF format
    The Emerging Forensic Role for Work Product Review and Case Analysis in Child Access and Parenting Plan Disputes: In PDF format
    Child Custody Evaluation and Relocation: Part I, 2015 In PDF format
    Child Custody Evaluation and Relocation: Part II, 2015 In PDF format
    Child Custody Evaluation and Relocation: Part III, 2016 in PDF format

    Home · Attorney Services · Relocation & Child Custody Evaluation · Domestic Violence · Parental Gatekeeping and Alienation

    Evaluation Services · Forensic Methodology · Curriculum Vitae · Work Product Review Service · Brief-Focused PRE

    Service Agreements · Parenting Coordinator/Decision Maker · Peer Consultation Services · Fees for Services

    Colleague Case Consultation - Custody Evaluation