Phillips Nizer LLP | Sophisticated Legal Service | Children in Divorce and the Partnership Between Family Lawyers and Marriage and Family Therapists, As Seen in <em >The Family Focus: The Newsletter of the American Association for Marriage and Family Therapy</em > (Aug 2005)<br > Jan L. Bernstein, Esq.
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Children in Divorce and the Partnership Between Family Lawyers and Marriage and Family Therapists, As Seen in The Family Focus: The Newsletter of the American Association for Marriage and Family Therapy (Aug 2005)
Jan L. Bernstein, Esq.

Almost all attorneys who practice in the area of family law deal with disputes concerning the custody of children and the sharing of parenting time. When people are involved in a dispute involving custody and/ or parenting time, it is often necessary to retain a mental health professional to ascertain what is in the best interest of a child. As uniquely trained mental health professionals, Marriage and Family Therapists (MFTs) may be retained to provide therapy for a child or family involved in a divorce, or may be called upon to serve as an expert witness. When called upon to provide therapy for a child whose parents are involved in a divorce, an MFT’s training and experience dealing with a child’s individual issues in the context of other, more expansive, family issues is extremely valuable. If the attorney and client retain an MFT to address issues relating to the best interest of a child through a forensic evaluation, the attorney and MFT will work closely with one another. As with any two professionals with different backgrounds who work together, the more one knows about the other, the better the partnership will be between them. An effective partnership between MFTs and family law attorneys is vital to reaching a successful outcome for the children of divorce. Before an MFT is retained to serve as an expert witness, it is important that he/she has a basic understanding of some of the common issues, guidelines, and responsibilities that one would be asked to undertake as an expert witness in custody matters. It is also important for family law attorneys to have an understanding of the goals and methodologies commonly utilized by MFTs and how an MFT may involve the divorcing parents in a child’s course of therapy.

At the outset, it should be noted that an MFT may become involved in a matrimonial case in several ways. In some instances, the Court may appoint an MFT to act as an independent expert. Specifically, New Jersey Court Rule 5:3-3(a) provides that whenever the Court concludes that the disposition of an issue will be assisted by an expert opinion, the Court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional of its choosing. However, more often an MFT is retained by one or both of the parties to investigate issues relating to the well-being of a child and the impact of different parenting plans on the child. Once involved in matrimonial litigation, all expert witnesses are obligated to proceed with a heightened level of impartiality. It is important to note that New Jersey Court Rule 5:3-3(b) has recently been amended to affirmatively direct that all expert witnesses act in an impartial manner regardless of which party retains them. In addition to the ethical obligations imposed by the New Jersey Rules of Court, MFTs must also comply with the American Association for Marriage and Family Therapy Code of Ethics (AAMFT). With regard to the ethical obligations of an MFT serving as an expert witness, section 3.14 of the AAMFT provides that, “to avoid a conflict of interest, marriage and family therapists who treat minors or adults involved in custody or visitation actions may not also perform forensic evaluations for custody, residence, or visitation of the minor. The marriage and family therapist who treats the minor may provide the Court or mental health professional performing the evaluation with information about the minor from the marriage and the family therapist’s perspective as a treating marriage and family therapist, so long as the marriage and family therapist does not violate confidentiality.”

Before being retained as a custody expert witness, it is important for MFTs to understand the issues that custody experts commonly address. Mental health professionals acting as expert witnesses are often called upon to evaluate what “custody” arrangement is in the best interests of the children. It is important to note that the term “custody,” as used in family law cases, encompasses two distinct legal concepts. The first, “physical custody,” generally involves where the child resides and the amount of parenting time each parent will have with a child. There are two types of physical custody, “joint physical custody” and “sole custody,” but there are countless variations of how physical custody can be arranged between parents. When parents share joint physical custody of a child, it is generally said that they have a “shared parenting arrangement.” It is also important to recognize the direct correlation that a physical custody/parenting time arrangement has on the amount of child support that is due in a given case. In addition to the amount of income each parent earns, the amount of overnight visits that a parent has with his or her child is one factor in determining a proper amount of child support.

The second type of custody, “legal custody,” refers to the ability and responsibility of a parent to make decisions on behalf of a child. Generally, there are two types of legal custody, “sole legal custody” and “joint legal custody.” Sole legal custody is the arrangement whereby one parent has the ability and responsibility to make all decisions concerning his/her child. Joint legal custody, at a minimum, generally requires that both parents have shared decision-making authority on major issues affecting the health, education and welfare of a child. Depending on the circumstances of a given case and the agreement reached by the parties, joint legal custody could also be defined as conferring shared decision-making authority on both parents for day-to-day decisions, such as a child’s extra-curricular and social activities. It should be noted that, as stated in N.J.S.A. 9:2-4, it is the public policy of the State of New Jersey “to encourage parents to share the rights and responsibilities of child rearing.” When disputes involving physical or legal custody arise between parents, expert witnesses are often called upon to make recommendations to the Court as to what parenting time arrangement is in the best interest of the child and whether it would be in the best interest of the child to have one or both parents making decisions for the child.

As mental health professionals who may be retained to act as a custody expert, MFTs should become familiar with the types of functions that he/she would undertake in a family law case. In almost all cases, a custody expert will submit a written report to the parties. In this report, the expert will render an opinion as to what custody arrangement is in the best interest of the child. In a smaller percentage of cases, when the Court is forced to hold a hearing on issues concerning custody, a custody expert may be called to testify in Court. When called to testify, the custody expert will have the opportunity to explain the factors on which his/her custody recommendation was based.

As stated in New Jersey Court Rule 5:3-3(b), when a custody expert is retained to render an opinion on the best interest of a child, there are specific statutory criteria that must be utilized by the expert in reaching conclusions. Pursuant to N.J.S.A. 9:2-4, the factors to be considered by a custody expert when making a recommendation to the Court are: 1) The parents’ ability to agree, communicate and cooperate in matters relating to the child; 2) The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; 3) The interaction and relationship of the child with its parents and siblings; 4) The history of domestic violence, if any; 5) The safety of the child and the safety of either parent from physical abuse by the other parent; 6) The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; 7) The needs of the child; 8) The stability of the home environment offered; 9) The quality and continuity of the child’s education; 10) The fitness of the parents; 11) The geographical proximity of the parents’ homes; 12) The extent and quality of the time spent with the child prior to or subsequent to the separation; 13) The parents’ employment responsibilities; and 14) The age and number of the children. In addition, the expert is free to use any other information which he/she deems significant in determining the best interest of the child. Experienced family law attorneys are likely be very familiar with the factors set forth in N.J.S.A. 9:2-4 because they are the very same factors that are used by the Court when making custody determinations. While family law attorneys and MFTs work with the same factors in custody disputes, each approaches these factors from a different point of view. When MFTs and family law attorneys share their respective ideas and approaches to the common criteria used in custody disputes, a successful partnership will be formed to achieve a result that prioritizes the best interest of children.