Article

Consulting with Attorneys: An Alternative Hybrid Model

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Abstract

This article discusses the recent expansion of the roles assumed by mental health professionals within the field of family law. In the past, mental health professionals working within the family law system, most frequently, worked as neutral child custody evaluators. More recently, articles and conference presentations have described the emergence of other roles such as “review expert,” “consulting trial expert,” “witness support,” or collaborative divorce “coach.” In these newer roles, the mental health professional is retained, not as a neutral, but as an expert for one parent. This article will address the ethical implications present in this work. In addition, the authors will further expand the field by describing the various functions of a “hybrid consulting expert,” the unique contribution provided by this collaboration, and the ethical and practical dilemmas that it creates.

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... In a recent article describing a "hybrid model for consulting with attorneys" in child custody disputes, Lee and Nachlis (2011) urged the forensic practitioner to partner "with the attorney and the parent" acting as an [ 50 ] "equal member of the team" (p. 97). Lee and Nachlis (2011) wrote: ...
... Work product doctrine protects from discovery actions by a consultant that are related to the attorney's trial preparation. Lee and Nachlis (2011) recommended directly assisting the parent in his or her parenting-an activity that is not an aspect of an attorney's trial preparation. It is possible that records of actions by a consultant that are unrelated to providing assistance in trial preparation might be the subject of a discovery demand. ...
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In this chapter, we discuss the development of the current ethics code in psychology, emphasizing those elements that are of particular concern to forensic psychological practitioners. We also describe changes in emphasis and content that have occurred over the past two ethics code revisions. Attention is also given to the revised Specialty Guidelines for Forensic Psychologists (Committee to Revise the Specialty Guidelines for Forensic Psychology, 2001, hereinafter designated as “Committee to Revise, 2001”), the sixth draft of which was available as this chapter was being prepared. We address ethical professional behavior in the context of adversarial proceedings; discuss the importance of appropriate professional preparation, transparency, generation of and exploration of alternative hypotheses, attentiveness to discrepant data, minimization of intrusions on the privacy of litigants, and avoidance of misplaced confidence; and present our perspective on the performance of work product reviews. We conclude with commentary on the regulation of the profession of psychology and with suggestions concerning the development of psychology's next ethics code.Keywords:forensic ethics;practice standards;best practices;aspirational practice
... Diferentes autores e instituciones relevantes (como la Association of Family and Conciliation Courts) han hecho referencia a los componentes que puede incluir este modelo de intervención (Austin, Fieldstone y Kline, 2013;Dale y Gould, 2014;Gould y Noletti, 2015;Lee y Nachlis, 2011;Schepard, 2011). Teniendo en cuenta estas aportaciones y los resultados de la encuesta realizada, nuestra propuesta podría incluir los siguientes aspectos: ...
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Divorce is an event that heavily affects approximately 75,000 children a year in Spain, together with the consequences that involves. Parents always request the help of a lawyer to speed up the process as much as possible, but divorce is not only an economic and material separation / division, it also affects the psychological and social well-being of those who are involved in it and therefore special advise should be taken regarding how to deal with the process in order to help everyone who is involved, including the lawyer. With this piece of work, we aim to emphasize the importance of new forms of intervention
... Until recently little had been written on this emerging role to provide guidance on the ethics and framework for delivering this service to attorneys and the court (see Gould, Kirkpatrick, Austin, & Martindale, 2004; Martindale & Gould, 2008; Stahl, 1994). Recent articles provide guidance on forensic consultation services in child custody cases, issues involved in providing ethical testimony as a rebuttal witness as a reviewer, and a protocol for conducting a competent work product review (Austin, Dale, Kirkpatrick, & Flens, 2011; Gould, Martindale, Tippins, & Wittmann, 2011; Lee & Nachlis, 2011). This current article adds to these steps towards establishing a standard of practice for forensic consultation and review services.f ...
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An emerging forensic service is that of conducting a work product review of a court-appointed child custody evaluator's evaluation and report. If the reviewer determines there are serious deficiencies in the work product, then the reviewer will provide consultation to the retaining attorney and expert testimony. The reviewer usually is in a hybrid role of consulting/advising the retaining attorney, testifying, and educating the court. Ethical issues in providing forensic services and rebuttal testimony as a reviewer are discussed. Both reviewers and evaluators have a duty to be objective and balanced in their analyses of data and issues. Both types of experts should strive to be helpful to the court and try to serve the best interests of children. Ethical nuances involving review work are discussed. Evaluator and reviewer share the same dataset. Evaluators need to take care to keep a high quality case record with legible interview notes. Reviewers provide a monitoring function for the court or a function of forensic quality control so the court will not be misled by expert testimony of evaluators that is based on flawed data collection and/or analysis. A list of questions is presented for reviewers to use in scrutinizing the quality of the custody evaluation. A list of questions is presented for examining the quality of the reviewer's own work product. The importance of a case analysis and use of conceptual frameworks by evaluators and reviewers is discussed.
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Court‐involved mental health professionals (CIMHPs) practice in a context fraught with ethical challenges and complexity. Prior commentators have offered perspectives on the factors that should be considered as these ethical issues are navigated, yet no structured system for organizing the process of ethical analysis has been offered to date in this area of practice. The three‐factor ethical reasoning model described below suggests the following basic process: (a) the operational definition of the service (s) requested; (b) a precise definition of the professional role that will be assumed for each separate service; and (c) an analysis of the ethical issues within a case by referencing promulgated statutes, regulations, codes, and guidelines, as well as foundational values. The risks of ethical errors for practitioners, clients, and the profession can be reduced via a systematic model for reasoning. Precisely defining service requests and roles is an essential first step. Reference to written rules should be augmented with reflection on foundational values.
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Custody evaluations can serve the dual purpose of providing neutral, objective information to the court while also contributing to the possibility of earlier settlement, which coincides with the therapeutic jurisprudence goal of more positive outcomes for children and families. Research suggests that most cases settle after custody evaluations. However, most of the literature is focused on the use of custody evaluations for litigation. Evaluators, attorneys, and mental health consultants can influence parents to focus more on children's needs and less on their conflict as they go through the evaluation process. This article urges family courts to develop processes and require professionals to learn skills needed for an interdisciplinary process to utilize evaluations in peacemaking. Key Points for the Family Court Community:All custody evaluation processes should aim to reduce and/or shorten children's exposure to parental conflict.Evaluators, attorneys, and mental health professional consultants should use the evaluation process to influence parents to be more aware of their children's needs and less invested in their adversarial positions.Evaluators should learn to write and orally present information and state opinions with consideration of the parents themselves as consumers of the custody evaluation as well as the court.Attorneys and mental health professional consultants should help clients review the report, process their emotional reactions, and consider their options for settlement versus litigation in terms of emotional and financial costs to the family.Court processes should be developed to contain the time and cost of custody evaluations and provide dispute resolution after custody evaluations.
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The purpose of this article is to provide a protocol within which to frame a critique or critical review of a colleague's custody evaluation. While we think that the structure and logic of the following protocol may be applied to other forensic evaluations, our focus here is on the specific forensic specialty area of child custody and parenting access evaluations (CCEs).
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Part 1 of this two-part series proposed the use of an interdisciplinary model in the development of psycholegal questions that guide child custody evaluations. It was argued that defining the scope and focus of an evaluation at the time that a court order is entered provides a more structured and clearly defined set of questions to be researched and examined within the context of the behavioral science literature. The present article offers a conceptual model to be used in gathering and analyzing data in child custody evaluations. It is argued that the use of forensic methodology provides a more scientific basis for the information provided by the evaluator to the trier of fact, ultimately resulting in a more useful and accurate picture of the family in question.
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The empirical literature on the longer-term adjustment of children of divorce is reviewed from the perspective of (a) the stressors and elevated risks that divorce presents for children and (b) protective factors associated with better adjustment. The resiliency demonstrated by the majority of children is discussed, as are controversies regarding the adjustment of adult children of divorce. A third dimension of children's responses to divorce, that of lingering painful memories, is distinguished from pathology in order to add a useful complement to risk and resilience perspectives. The potential benefits of using an increasingly differentiated body of divorce research to shape the content of interventions, such as divorce education, by designing programs that focus on known risk factors for children and that assist parents to institute more protective behaviors that may enhance children's longer-term adjustment is discussed.
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To review important research of the past decade in divorce, marital conflict, and children's adjustment and to describe newer divorce interventions. Key empirical studies from 1990 to 1999 were surveyed regarding the impact of marital conflict, parental violence, and divorce on the psychological adjustment of children, adolescents, and young adults. Recent studies investigating the impact of divorce on children have found that many of the psychological symptoms seen in children of divorce can be accounted for in the years before divorce. The past decade also has seen a large increase in studies assessing complex variables within the marriage which profoundly affect child and adolescent adjustment, including marital conflict and violence and related parenting behaviors. This newer literature provides provocative and helpful information for forensic and clinical psychiatrists in their work with both married and divorcing families. While children of divorced parents, as a group, have more adjustment problems than do children of never-divorced parents, the view that divorce per se is the major cause of these symptoms must be reconsidered in light of newer research documenting the negative effects of troubled marriages on children.
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Coaching clients for custody evaluations: Is it ethical? Workshop presentation for Association of Family and Conciliation Courts Changing law schools to make less nasty lawyers
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