Maryland Legislature's Sad Cave-in to Anti-Victim Domestic Violence Propaganda

The Maryland Legislature killed a bill this month that would have brought Maryland's restraining order policies into line with every other state in the Union. Remarkably, in Maryland, a victim seeking help is required to prove her case with "clear and convincing" evidence, a higher standard than "preponderance of the evidence", which is the universal standard for civil disputes. There can be only one reason for this absurd requirement: that Maryland legislators believe that women frequently lie when they allege abuse. Under the "clear and convincing" standard, even if it appears to be more likely than not that it's the victim telling the truth in a "he said, she said" situation, the victim still loses.

Below are the legislators voting against the bill; if they did this, that can only mean that they have fallen for propaganda that leads them to believe that women who claim abuse (testify in court) are less credible than men who deny abuse (testify in court). That's not a level playing field, and it's an absolutely unacceptable attitude for a legislator to hold. For that reason alone: vote them out of office.

Curtis S. Anderson (D-Baltimore)
Benjamin S. Barnes (D-Prince George's)
Jill P. Carter (D-Baltimore)
Frank M. Conaway Jr. (D-Baltimore)
Donald H. Dwyer Jr. (R-Anne Arundel)
William J. Frank (R-Baltimore County)
J.B. Jennings (R-Baltimore County)
Kevin Kelly (D-Allegany)
Gerron S. Levi (D-Prince George's)
Tony McConkey (R-Anne Arundel)
Victor R. Ramirez (D-Prince George's)
Samuel I. Rosenberg (D-Baltimore)
Todd L. Schuler (D-Baltimore County)
Luiz R.S. Simmons (D-Montgomery)
Michael D. Smigiel Sr. (R-Cecil)

For more information on this issue see The Parenting News Network

The Collaborative Law Practice Group or Independent Collaborative Lawyer?

Collaborative Law practice groups have been forming around the country over the past two decades. They are not law firms. Some are incorporated as nonprofit associations, and some are not. Some may be composed of only lawyer and/or law firm members, while others are interdisciplinary groups of lawyers and other professionals, such as mental health or financial professionals. Different groups may have slightly different flavors. There are different requirements for membership and continuing training, and different groups advocate for somewhat different kinds of collaborative practice. One thing all collaborative lawyers and collaborative law groups have in common, however, is a commitment to resolving disputes using the collaborative process without having to go to court. Thus, a trained collaborative lawyer may be part of a large or small practice group, or belong to multiple groups -- or might not be affiliated with a group at all.

Collaborative law groups primarily exist to educate and to provide a forum in which lawyers can share information and ideas to assist them when representing clients in a collaborative case. They facilitate the training of members, advance knowledge about the collaborative process, and help to standardize the practices and procedures of lawyers who will be working with each other in the future. By meeting together regularly, and discussing the various issues, the collaborative law groups help to develop the skills and practices of local lawyers who are serving clients in the still-emerging and developing area of collaborative law. Members also sometimes collectively advise legislatures and the media on the collaborative process. In addition to facilitating the development of the emerging field, collaborative lawyers in practice groups find it helpful for trust and efficiency when the lawyers who will be working to resolve issues in a collaborative manner have been able to get to know each other in a setting other than interacting with clients.

Recently collaborative law groups have begun expanding from practices limited to handling family law issues to other kinds of issues as well, such as probate and elder law disputes or business partnership disputes. More and more collaborative lawyers have practices that are not limited to family law. (Collaborative Lawyers, Inc. had this in mind when we decided to call ourselves -- simply -- "Collaborative Lawyers", rather than "Collaborative Family Lawyers", or "Collaborative Divorce Lawyers".)

Some collaborative lawyers offer a full range of traditional legal services, such as litigation and mediation, as well as transactional work, and some, such as Stu Webb, the originator of collaborative law in the early 90s, have chosen to limit their practices solely to resolving disputes using a collaborative process. Importantly, however, as the field has developed, some lawyers have joined multiple collaborative law groups, while other lawyers who are equally trained as collaborative lawyers and both interested in and committed to using collaborative law (as well as, sometimes, cooperative law), are finding membership in collaborative groups to be limiting, and to have some disadvantages as well as advantages.

Our lawyer directories, e.g. Collaborative Lawyers of Southeast Florida (in the South Florida area) are nondiscriminatory listings of collaborative lawyers. We consider a lawyer who is trained in collaborative law, and who is committed to using collaborative law when it is appropriate to be a "collaborative lawyer". We welcome here lawyers and law firms associated with collaborative law groups as well as unaffiliated collaborative lawyers. Our purpose is to provide a place for lawyers, clients, and other professionals to find each other, network, share information, and spread the practice of collaborative law. We believe that many would do more networking if unburdened from the requirement that they be members of a practice group, usually a corporation, and implicitly responsible for or professionally endorsing each other individual member of the group. Because of this issue, some of the collaborative law groups seem overly restrictive in who they will admit as members and work with, while others have become more akin to trade promotion organizations, permitting almost anyone, lawyer or not, to be considered a "member" and "collaborative practitioner". We understand that some collaborative lawyers may have concerns with the notion of restricting practice relationships and restricting which other lawyers and professionals they will work with, while on the other side, others are concerned about the implicit legal responsibilities of formal membership in unrestricted interdisciplinary practice groups. We appreciate and recognize the contributions that have been made by formal collaborative law groups, and toward a resolution of this dilemma, also appreciate and recognize that a lawyer does not have to belong to a formally organized collaborative group -- of any flavor -- in order to be and be considered as a "collaborative lawyer". Read more at Collaborative Lawyers. Get research at thelizlibrary

Discovery issues and child custody evaluators

By its own language, the APA ethics code, an extra-legal code of ethics of a private trade association, requires compliance with "the law". In the law, there is a hierarchy of authority. Higher authorities control lesser authorities. At the top is the U.S. Constitution, and the case law interpreting it, recognizing fundamental rights of fairness, due process, and cross-examination. Below that are federal statutes that supersede state laws. Below that come state laws, constitutional, statutory, and case law. Below that come administrative regulations. At the very bottom is the law of private contract, such as the APA regulations or the contracts of nonparties who voluntarily -- and for profit -- knowing in advance that they wrongfully will be professing to have a conflict of interest, nevertheless have injected themselves into other persons' litigation.

Lower authorities that refer to exceptions "otherwise required by law" are indicating that they are to be interpreted consistent with that higher legal authority, and defer to it. Thus, it is neither "reasonable" nor "consistent with law" to posture that a private contract might supersede the requirements of the constitution. Doing so repeatedly, speciously pretending to ignorance and confusion, is frivolous, unsupportable, sanctionable conduct.

The Administrative Code regulating psychology, albeit a step up from private contract, cannot be interpreted by a thinking individual as law that competes with, conflicts with, or modifies higher legal authority or more compelling constitutional rights. The lower authority rules still must be interpreted in a manner that is consistent with those constitutional rights and superseding law. In the United States of America, we do not permit Court of Star Chamber proceedings, in which the underlying data upon which expert opinions are based, gets to be kept secret from the litigants. Since that's not an option, there's nothing for a court properly to decide. See additional discussion below on the Florida code.

Laying aside that the APA guidelines primarily address clinical practice anyway, there is no research evidence anywhere establishing generally that preventing the release of forensic psychology test data and other assessment records to "people untrained to use them" will protect anyone, or ever has protected anyone, or, conversely, that the release of such records in general has harmed or will harm anyone. While this all sounds plausible, and it is possible creatively to imagine situations in which such harm theoretically could result, it is simply not established as a general rule. No research has established that any harm will come to the public if psych testing were not available. While it is plausible as an hypothesis, no evidence establishes this. Indeed, the public managed very well for hundreds of years without psych testing and there is no evidence (unlike in the fields of medicine or dentistry) that the public is better off, more well adjusted, healthier, or happier, because of the availability of psych tests.

On the other hand, it is axiomatic in the law that deprivation of due process and the right of cross examination is a fundamental harm. In addition, misuse and misinterpretation of test data by psychs themselves, the lack of validity of many of the tests, the lack of interrater reliability, and high controversy over the efficacy and use of many of these tests also is well-known.

To the extent that the trade promotion interests of a third party are in conflict with the fundamental due process rights of the actual litigants in a court case, it should be remembered that the third party voluntarily injected itself into the proceedings, knowing in advance what its interests were, and thus implicitly waived those interests in deference to the litigants' higher interests in due process and fundamental fairness.

It is not a violation of copyright to turn over materials in response to a subpoena for discovery, or to make photocopies of the materials for use in connection with litigation. Period. This falls squarely within the fair use exceptions.

Material that is readily sold, that is available to competitors, that is discussed in articles and published in books that are available to the public in libraries, and that is not kept by the test publisher from tens of thousands of psychs is not a "trade secret". While test publishers individually indeed may have various trade secrets, they do not include material in the possession of competitors and industry-wide third party users. Once material is shared within the industry, trade secret law no longer applies. Psychs here have the same issues that magicians do, in that they attempt to keep material secret from the public but the material is well-known in and among the industry competitors. Trade secret law thus is inapplicable.

If and to the extent the test publisher markets its products for its own profit for intended use in court, it also has knowingly, and in advance, thereby agreed to any publication that foreseeably ensues in connection with those court proceedings, because those proceedings ordinarily should be expected to comport with due process.

There is an easy solution if the test publisher or the forensic psych doesn't like this. Don't use these instruments for forensic work. It is validly argued that by doing so, the psych deliberately, and for his own financial gain and self-aggrandizement, cavalierly set in motion a contract violation of his own doing. He cannot, after doing so, and after setting up a [purported] conflict of interest -- a dilemma of his own making -- now place the burden of rectifying that malfeasance on other people's time, money, and fundamental rights. A subpoena quash or protective order is an equitable remedy -- and the psych and the test publisher have dirty hands and cannot come into court midstream, changing their tune and begging for protection at others' expense and detriment.

More information can be found at http://www.thelizlibrary.org/therapeutic-jurisprudence/custody-evaluator-testing/ and at Child Custody Evaluation: Reevaluating the Evaluators

Parenting Coordinators: Practical Considerations

"...the second meeting we had she made a point along with the EX to attack everything we had to say, demanded that we keep our mouths shut while the other party talked yet the other party could interrupt us while we were talking... This lady has been a night mare for us... I thought the whole reason for having a med. was to make things go smoothly, no stress, and take BOTH sides into consideration..."

"Both parents wanted the child to participate in cheerleading. The coordinator decided against cheerleading! She felt the parents were setting the wrong priorities and that the child needed to understand that parenting time was more important than social activities. The coordinator also told the judge that the child was a "mediocre" student..."

"We recently found out that the Judge's Law Clerk, was in fact, also the "husband" of the Parenting Coordinator..."

A lack of research, a lot of self-interested trade promotion. Read the articles and references at About Parenting Coordination

Reviewing Child Custody Evaluations and Faux Science

See complete article at thelizlibrary.org

The posture of science is only required in order to justify an outcome that does not seem to make readily apparent sense. Few (if any) of the considerations that actually will move the final decision-making have anything to do with "science." It may well have to be "all about science" to the extent a trial court is diverted away from relevant matters off on a tangent about whether an initial evaluator (who arguably should not have been involved in the case in the first place) properly analyzed a psychometric test and similar, but the custody evaluator's investigation and recommendations -- and the court's final decisions -- actually will have little to do with anything scientific. Even if the custody evaluation reviewers are arguably more scientific in certain ways in order to counter the initial evaluator's opinions, the "crafting of scientific custody evaluations" remains a posture ignoring that it was inappropriate in the first place to burden a litigant who disagrees with the recommended arrangement with a second opponent in court arging for what are, at the core, his own personal preferences. And as to this opponent, the litigant is faced with having to hire a reviewer with ostensibly more scientific expertise to litigate the tangential side case because the first MHP was presumed to have grounded his opinions in science, thereby shielding them from ready criticism inside an armor of unwarranted wisdom and credibility.

Parenting Coordination - a very bad idea

Article from thelizlibrary.org
Parenting Coordinators are a Bad Idea. Why:

Let's start with the problems with parenting coordination that every lawyer knows: inappropriate delegation of the judicial function, impediment to court access, and denial of due process. And go on...

The parenting coordinator concept encroaches on family liberty interests, bringing the government behind the closed doors of people's lives, injecting into the private realm a third party who is not in any way more capable than either of the parents are to make day-to-day decisions about their own families, values, and goals.

Parenting coordination is a made-up, make-work field that has been invented by bottom-feeding extraneous "professionals" who have literally reproduced like bacteria in the family court system.

There are no studies indicating that parenting coordinators make good decisions, improve the lives of children or parents, or improve child wellbeing. And, there is no reason to believe they would.

What qualifies a person to make personal family and childrearing decisions for other people -- what physician a child should go to, what school, other academic decisions, what extracurricular activities a child should participate in, family routines and scheduling decisions, seating decisions at the bar mitzvah or soccer game, and so forth? What qualifies a person unilaterally to interpret a court order, or "fill in the gaps" in the details of a legal document, a "parenting plan" (a violation of freedom of contract)? What qualifies a person to do "parenting coordination" to "help other persons implement" a legal contract (marital settlement agreement), as a supposed neutral?

Nothing.

What constitutes "success" at parenting coordination? Who knows. To the parenting coordinator, perhaps getting a nice fee.

To a judge, perhaps that he thinks he's eliminating work, clearing his docket, or just putting off disputes to another day, or to a later judge. If a judge thinks this, he's mistaken, because parenting coordination is not just an inappropriate denial of access to the court. The presence of a parenting coordinator leaves cases continuously open, which is guaranteed to make things worse in the long run.

To one of the parties, that he or she now has an ally? That one of the parties is happy? That's not necessarily an indication of success unless we know with certainty that that party generally has the more meritable position.

Increased family well-being? How is this possible when people are burdened with tasks and negotiations and meddlesome reportings of the minutiae of their days to third parties, when their time and money is consumed, pointlessly, when their privacy is intruded upon by the government like this, and when they are forced to kow-tow to the dictates of a court-appointed, decision-making autocrat in every area of their most intimate lives? It's not.

When there are better child-rearing outcomes? As compared with what? Defined how? Under any definition, increased child wellbeing has not been shown to flow from any of the ideas of applied therapeutic jurisprudence trade promotion.

Just as with custody evaluators and guardians ad litem, and even to a large extent, the practice of mediation, there is no way to do any decent studies in this area. Don't fall for self-serving industry articles spinning speculation. Research will never demonstrate any benefits from many of these ideas, including parenting coordination, because credible studies simply cannot be done. Even, inappropriately, after the fact.

(If you don't understand why, contact me privately and I will direct you to material on social science versus science, experimental methodology, logic, and how to do critical reading and thinking and not be such a credulous patsy.)

The parenting coordination concept is an infection that causes all of the problems that custody evaluators and GALs bring into the family court system, and then some. Again, what qualifies a third-party stranger parenting coordinator to make daily family life decisions for other people? Nothing. And nothing ever will. Many of these kinds of decisions are made based on a free individual's private life, relationships, work, desires, schedule, personal values, beliefs and goals. The parenting coordinator makes decisions based on the parenting coordinator's own private agendas, preferences, motives, values, beliefs and goals -- and which party the parenting coordinator just happens to like better, which already is the unfortunate but real basis for most of custody evaluator and guardian ad litem opinings. (This includes, inter alia, intangible personality things as well tangibles such as who like them and pays them timely and well.)

Many, if not most, lawyer parenting coordinators as well as many mental health professionals, notwithstanding their ostensible "training", completely lack psychological insight. Parenting coordination is not "co-parenting therapy" (which rarely works anyway -- witness all the mental health professionals bucking for this authority to be mini-judges and dictators.) Most mental health professionals also lack a clue regarding the repercussions in law of their ideas. And these are people supposedly interpreting and "filling in the gaps" in legal documents!

There is no valid "training" because there is no body of expertise, no foundation of knowledge, to base any such training on. Maybe they're just smart? Well, not versus all possible litigants by a long shot, and no stranger is qualified to understand the daily life and routines, and individuals, and personalities, and interactions going on in someone else's household and the effects of their ideas in practice unless they actually spend considerable time in that household. Which, of course, they don't.

Parenting coordination provides a forum for the arguing of minutiae that, in the absence of a parenting coordinator, the parties would have to work out, and learn to work out, on their own, or just let go.

When the parenting coordinator makes a bad decision, this opens the door for the parties to go back into the courthouse, thereby bringing into court minutiae that otherwise would not have a forum. Moreover, the very existence of a parenting coordinator, like an uber-parent for the parents, itself creates a forum for petty squabbling, encouraging it because, ironically, just like a misguided inept parent, the third party (getting paid for his time) is ready and available to intervene in all manner of disputes, thus retarding rather than encouraging growth and cooperation.

Parenting coordination is expensive, even at hourly rates less than the ordinary rates charged by these professionals when they do real work. This is so because the cost is for extra work, on top of the lawyers and litigation expenses the parties still have to maintain; the parenting coordination process actually does not eliminate any of this. Rather, it adds on additional professional expenses to handle minutiae that otherwise would not be creating expense. Ultimately, it's very expensive because any expense that does not yield something of equivalent value is a waste of money. Moreover, having a parenting coordinator at the ready permits a wealthier party to spend the other's funds by unilaterally contacting and choosing to bring issues before the parenting coordinator. Generally, both parties have to pay a portion of the parenting coordinator's fees; usually these are divided 50-50, and timely payment of the parenting coordinator's fees also becomes an issue of high concern for the parenting coordinator, added into the case.

Once appointed, the parenting coordinator has absolutely no incentive to work himself or herself out of a job.

Parenting coordination intrudes on privacy. Among other things, parenting coordination permits the state via a state-appointed agent to demand information and details about people's lives that then can be brought back into court by the opposing party, effectively becoming ongoing compelled discovery, contrary to the Fourth Amendment.

Individuals who choose to do this "work", to become parenting coordinators, are the equivalent of paid yentas and neighborhood meddlers. They tend to be individuals who cannot make a go of practicing their profession -- the incompetent, the inexperienced, the nincompoop, the untalented, the lazy and/or the burnt-out. A good number are flat-out agenda'd, either politically, or of the psychic vampire or petty tyrant variety.

A big draw for doing parenting coordination work is, of course, that while parenting coordination promoters tout the "lower cost", meaning that they are willing to settle for lower fees per hour for this work rather than their other work, the work itself is relatively brainless. And it's unregulated and practicably unable to be regulated. There is no efficient or effective oversight. Being unregulated means that there is no recourse against the parenting coordinator for malfeasance or malpractice. How nice for the parenting coordinator.

In addition, the potential amount of work is open-ended and in large part able to be self-generated by the parenting coordinator. The schedule is flexible. Don't discount either, the parenting coordinators with axes to grind and personal agendas all about how other people's lives should work, what constitutes "fairness", fathers' or mothers' rights, parental values and roles, and so forth, as well as reliving and normalizing their own family-of-origin issues. How nice for the parenting coordinator.

If you've heard argument otherwise, that the field was chosen in order to "help" (dictate to other) people, or because they were "frustrated" as lawyers or psychologists or mediators in not being able to "help" (dictate to other) people, then given the relatively lower (albeit no-overhead) hourly fees charged for parenting coordination, ask how much unpaid voluntary work the person has done. Query why this ostensible advice-giving do-gooderism wasn't just done through their church, or a community charity agency, and offered to all-comers in their avocational spare time on a no-obligation basis, while in their regular working time, they just continue to practice the profession for which they actually were trained and licensed. That's how good samaritans and persons with kindly, charitable intent usually "help" when that's the actual motive and they already have a real profession to practice in the family court field.

The nature of the function as designed enables parenting coordinators to churn money by insisting on all manner of crap that involves them, under circumstances in which their decisions cannot be second-guessed, even by a judge. The parenting coordinator's "work" cannot conveniently be reviewed by a judge because the "proceedings" with a parenting coordinator are informal, undocumented, and outside of the court and due process. So no matter what occurs, the parenting coordinator can "remember" conversations and events differently from the way they really happened. If contested, the parenting coordinator also can -- and will -- employ the ready CYA alibis of "high conflict custody case" and one parent's ostensible irrationality or prevarication.

Frequent and typical make-work by the parenting coordinator includes forcing people to include the parenting coordinator in all communications and emails, provide the parenting coordinator in advance with parents' and children's schedules and activities, meet at the whim of the parenting coordinator, provide the parenting coordinator with school documents and medical records, and the like. Churn, churn, churn, duplicate, churn...

Many of the lawyers, mental health professionals, and erstwhile mediators and guardians ad litem who want to do parenting coordination have no actual experience themselves as parents, let alone as caregiving parents, let alone as single parents -- or with blended family issues, or with children with particular issues, or in "shared parenting" or divorced situations. Nor do they even necessarily hail themselves from successful well-functioning families. Parenting coordinators bring to their job their personal opinions and values and speculations founded on their unknown personal backgrounds, including some of the most dysfunctional (and undisclosed) personal familial histories, and implement their personal and political agendas. They are the antithesis of "wise persons", who generally are not found among neighborhood gossips or those who relish involving themselves in the mundane details of other people's lives.

Time spent with the parenting coordinator, where not catering to the dysfunctionals who just need sounding boards (that fantasy ends quickly, once the parenting coordinator begins to align with the other parent), is tedious and time-consuming for the parents. The same timewasting, of course, represents a ca-ching in the bank account of the parenting coordinator, which encourages plodding and more time-wasting meetings and talkings.

Parents also are placed at the whim of all arbitrary demands made by the parenting coordinator for payment for their time, largely in the control of the parenting coordinator and possibly the other party. (This applies, to a great extent, as well, to various court-appointed therapists and GALs). Given the presence of the parenting coordinator, and the payment incentive, every decision, no matter how small -- not just major decisions -- is open for endless discussion and consultation. In addition to being time-consuming, it's a delight for stalker-harasser abusive types, as well as those who just won't let go of the other party.

The parenting coordinator can think up all kinds of things and require the parents to comply: pseudo-therapy (unregulated by the licensing boards because it's "not really" therapy); "communications counseling"; "coaching"; reading of materials; various homework assignments; meetings with one or the other of the parties, meetings together, meetings with various combinations of others; demands for disclosure, frequently in writing, of private thoughts, emotions, and information; consultations and strategy sessions with the children's guardian ad litem and parents' court-ordered or parenting coordinator-ordered therapists; meetings with the children's physicians and teachers; meetings with anyone at all; ordering of a parent into supervised visitation or therapeutic visitation; recommending to the court therapies of all kinds with yet more of the helping professionals -- almost anything at all. And if a parent doesn't comply, there are sanctions, imposed both by the parenting coordinator and the court for "noncompliance".

How-to techniques for would-be parenting coordinators in this new invented "profession" consist of almost anything the parenting coordinator might think up, sprinkled with suggestions and teachings borrowed from law, psychology, mediation and other practices, as well as fantasies from other imaginative self-styled professional parenting coordinators in the recent explosion of manuals, books and trade-promotion "trainings". (Until enough fools sign on for this cock-'n-bull to fill a workweek, for the ambitious, there's still money that can be earned professing to be a mavin). Parenting coordination "training" materials comprise mostly stuff plucked from the asses of their inventors.

Doubt me? Read some of it. Parenting coordination methodology includes such things as ordering people how to talk with each other ("use my template"), ordering parents in what method they may or must talk with each other ("email only, and you must copy me"), and even uttering orders to parents regarding when or whether they must or may not meet and/or communicate with each other, with the parenting coordinator, with the court and the parties' lawyers, and with other people, all in astonishing violation of the First Amendment. To facilitate all of this, parenting coordinator orders, agreements, "voluntary" consents, "understandings" and intake forms generally require the parents to sign away all manner of fundamental constitutional rights -- essentially, busybody's wetdream.

As previously noted, having a parenting coordinator on a case keeps the case continuously open and invites it to explode into endless issue-making, rather than being finally resolved, and in doing so, actually creates more, not fewer, problems for both the litigants and the courts. Sometimes a case does appear to resolve, but all too often that is only because the financially or emotionally weaker party, or the party unfavored by the parenting coordinator, just gives up in defeat, beaten away by the constant undercurrent threat of litigation, the harassment, and the need to avoid continuing costs.

(If judges' goals here are to get people to just shut up and go away, we could eliminate all of the docket problems in the civil courts and achieve equally fine results just by closing the courts altogether.)

In recent years there has been a burgeoning of child abuse and deaths stemming from child custody disputes in which abusive individuals get custody and visitation rights, correlating in the rise of joint custody theory and the intrusion into the family courts of therapeutic jurisprudence.

Parenting coordination, the latest of these therapeutic jurisprudential ideas is dangerous, and not merely because of the distortion it makes in the judicial system and of due process. Unqualified strangers can and will make bad decisions that simply cannot timely be brought to court, cannot effectively be reviewed by the court, or which are prohibitively expensive to bring to court. Parenting coordinators have missed domestic violence. They have assumed facts that are not true. They have perceived emergencies or situations incorrectly. They have mischaracterized events and made egregious judgmental mistakes. They have lied outright. And this is dangerous because they are not and practicably cannot be subject to any effective oversight.

Depending on the vagaries of the practice from time to time in this or that jurisdiction, parenting coordinators effectively have license to wield heavy authority and extremely biased power, opining back to and influencing judges, bringing issues into the public domain that do not belong there and which were not brought into the case by either party, siding with one party unfairly (even developing personal relationships), and recommending or just ordering the parties to hire their own cronies for therapies and guardianships and evaluations. It's a recipe for more corruption and an insult to the rule of law.

Parenting coordinators can -- and do -- violate the terms of parties' contractual agreements as well as the law. Lobbyists for statutory implementation of this role have argued, speciously, that oversight indeed exists because the parties can always go back to court. But real life doesn't work that way. "If you don't like it, then take it to court" is a dare that can be thrown out cavalierly, because the parenting coordinator role permits these court appointees to hold over the head of objecting parties the power -- baselessly presumed to be executed in good faith -- to obtain the ear of the judge first, to poison the well. They also hold more credibility before him than those lunatic, bitter, embattled, unreasonable, "high-conflict", personality-disordered parents. They can and do function as shadow witnesses ex parte, to provide the judge with information, evidence and innuendo. Their inexpert opinions can and frequently will label one of the parties as the recalcitrant, the wrongdoer, the deadbeat, the crazy, or the "uncooperative".

So "take it to the judge" does not work, particularly post-decree, when a party may be short of time or funds, or may no longer even have a lawyer. And it does not work because in many courts, days or weeks, or months may go by before a party can get a hearing. And it does not work because an objecting party has to overcome not only the parenting coordinator but also the opposing party (that's being out-voted from the git-go, two against one, a problem that is similar to that created by guardians ad litem, but potentially even worse because the parenting coordinator solicits cahoots with courthouse cronies, the guardian ad litem, the appointed therapists, and so forth). And it does not work because "going back to court" means risking the irritation of the judge who appointed the parenting coordinator in the first place precisely because he didn't want to hear about it. No oversight.

Difficult to remove in any event once appointed, the parenting coordinator is even more difficult to remove when he or she is biased (and that's a better than even bet, given the nature of ongoing informal relationships with people, especially where there is money at stake, and especially given who is drawn to this line of work). Bias should be one of the grounds that immediately would mandate removal of a parenting coordinator, but it also means that the parenting coordinator will be vested in preserving his own aura of competence (as well as income), and supported by the party with whom he is aligned. Moreover, how does a party prove "bias" when the ubiquitous explanation is that the "disgruntled" party who didn't get his or her way always makes that claim.

There is no way to tell in advance who might be a "good" or "helpful" parenting coordinator. Families differ, circumstances differ, and personalities differ. To parties disputing this, or buying into a sell-job from some mental health professional, mediator, or burnt-out lawyer, I would ask: how great were you in deciding in advance who to marry, or with whom to have a child. What makes you believe that the third party who wants this easy work will be a second voice on "your" side?

In the inane insistence that "both" parents "participate" in making decisions regarding the child, in order to avoid stalemate, parenting coordination is the tool for unworkable joint custody from BOTH parents the right to function with authority and automony. (Instead of one parent, the kid now has two ineffective half-parents.) One should counter: if a third party stranger based upon no established field of expertise whatsoever is supposedly qualified to make and facilitate decisions impacting people's family lives, something not even usually encouraged in clinical therapy, then why is not the better solution just to select one of the parents to make the decisions. At least then the children at least would have one functional authoritative parent, something that IS demonstrably evidenced in the research to be necessary for child security and well-being.

While the rhetoric is rampant that parents are less likely or unlikely to consider their children before themselves in their decision-making when they are embattled in divorce and post-divorce issues, no research actually substantiates this concocted rationale.

It first was invented to lobby for guardians ad litem in family law cases, and later was used to justify in part the appointment of custody evaluators. It's become yet another family court system truism without a shred of foundation. The anecdotal claims (if you even get that much, get any anecdotes) of individuals who have a political or profit motive, peddling their services to the market, are just not credible, especially as to historic primary caregivers. No one is as interested in or vested in their own children's happiness and wellbeing as the child's own parent, and as between two parents, than the one who already has shown higher attachment and commitment.

Parenting coordination stands as proof positive that forced joint custody does not work. There's a better solution. You all know what that is.

See the original article for citations and links.

Post-Divorce Relocation: Policy Considerations

POST-DIVORCE RELOCATION: POLICY CONSIDERATIONS
by Scott Altman

Professor Braver suggests that children would be happier and healthier if we discouraged parents who divorce from relocating. I am not convinced that this policy would help children. But this is an empirical question about which I will comment briefly as I conclude.

Professor Braver also offers a glimpse into public opinion, which seems to favor relocation deterrence, partly on fairness grounds. My main goal tonight is show why this view is wrong: inhibiting relocation by threatening to take custody away from the moving parent is not a fair solution.

It might strike you as odd that I mention fairness to parents; shouldn't custody law try only to protect children? I do not think so. Children are not the only people worthy of moral concern, and our legal practices reflect a commitment to many competing values.

Consider just a few examples: We permit parents to risk orphaning their children by sky-diving and climbing mountains; we allow intact families to relocate (for a job or just on a whim) even if this disrupts important social ties for children. We also send parents who commit crimes to prison, despite obvious harms to their children. And we force parents who commit torts to pay damage awards, even though these payments impoverish children.

Why do we allow all these risks to vulnerable children? Because we think that adults should be free to pursue their own interests, and because social goals, such as crime control or justice between adults, sometimes matter more than protecting children.

Relocation law already places many adult interests above child welfare. For example, if Professor Braver is right, moves by non-custodial parents harm children as much moves by custodial parents. Yet there has never been a serious effort to deter non-custodial parents from relocating. That people see little unfairness in this discrepancy suggests that the core issue in relocation is access to children and choice of residence, not the best interests of children.

Do these adult interests merit much weight in child custody policy? If so, how should we resolve conflicts between the interests of custodial and non-custodial parents?

Fairness requires us to take these adult interests seriously for three reasons. First, relocation doctrine should try to allocate fairly the personal hardships of divorce. Second, it should not exacerbate gender inequality. And third, it should not involve the law in unjust coercion. These conclusions do not provide simple solutions. But I will argue that they counsel against using conditional custody changes to deter relocation.

My first argument begins from the perspective of equality. Parents regularly make sacrifices to promote their children's welfare. Perhaps becoming a parent requires committing in advance to sacrifice for the child when necessary. But both parents share this obligation. Fairness between them counsels that one parent not be asked to sacrifice far more than the other in the interest of protecting their child.

Demands that sacrifices be fairly allocated are among the few positions shared by advocates on both sides of relocation debates. Indeed, it may be the reason these debates are so heated.

From the perspective of a noncustodial parent, relocation not only harms the child and deprives him of frequent access; it does all this even though he may already have made a very large sacrifice by accepting non-custodial parent status. He may concede custody willingly - preferring to settle custody terms quickly and peacefully for the benefit of the child. Having already given up daily contact with the child, much to the benefit of his former spouse, he is now asked to sacrifice even more for her convenience.

Custodial parents often see things differently. Child custody, despite its many rewards, also requires work and sacrifice. The custodial parent may feel she has given up personal freedoms and job advancement to provide child care, and that she is now being asked to sacrifice further, by foregoing a new job or proximity to family, all for the convenience of a parent who already had more freedom and fewer child-care duties. Relocation limits from this perspective are the insult added to the injury of her disproportionate child-care duties.

And each parent often suspects the other of bad faith: non-custodial parents believe that the move is motivated by spite or a desire to avoid continued contact; custodial parents often think opposition is motivated by spite or a desire for ongoing control.

No doubt there is some truth in both perspectives. Bad faith is always possible. And any self-aware parent knows that time with children is both a joy and a pain. In any given case, the balance of sacrifices and level of sincerity may vary.

But for most cases, this balance is more certain. Most fathers do not want custody of children, much preferring the freedom of visitation to the ongoing responsibility of single parenthood. Given what we know about the division of childcare chores and custodial parents' lower standard of living, custodial parents likely sacrifice more on average than noncustodial. Rules limiting their mobility exacerbate this imbalance.

I would weigh this imbalance less heavily if the law made great efforts to restrain moves by non-custodial parents. Inequities would remain - for example custodial parents would still likely suffer more from their inability to move. But at least all parents would lose mobility so that their children can flourish.

Without strong measures to restrain noncustodial parents, our laws are doubly unjust in their impact. First, they ask the overworked custodial parent to restrict her mobility to protect the child. And then they grant broad freedoms to the relatively unencumbered non-custodial parent whose relocation might be equally harmful. The inequalities I have mentioned so far ignore gender. But we all know that most custodial parents are mothers and that restrictive relocation rules disproportionately burden women. This is especially so for poor women, who most desperately need to relocate for higher pay or lower-costs, and who can least afford to navigate complex legal proceedings required by the procedurally burdensome factual inquiries that accompany restrictive rules.

For anyone who cares about equality of outcomes, restrictive relocation laws are problematic. These laws tie women to the location of their marriage, which often was chosen by their husbands, and therefore often keeps them far from family. It also limits their mobility to seek better jobs or new relationships, either of which may be important to raise their standards of living. Those standards of living are - by all measures - lower than men's after divorce. For some women, this lower earning capacity is due to their prior career sacrifices made while caring for children.

At the same time, relocation law allows men to keep the jobs they had during the marriage, or to relocate for better jobs or new spouses. Even if all this is fully equal in principle, it does not work out as very equal in effect.

Despite all my arguments so far, I am remain ambivalent about relocation. I share one intuition with people who oppose relocation: decent parents ought to make personal sacrifices so that their children have frequent contact with both mother and father - at least when there is no domestic violence or other serious problem. I hope that I would do as much, and admire the friends I know who have done so to protect their children.

If parents have this duty, shouldn't our legal system encourage them to fulfill it? Often the parent seeking to relocate would remain with the child if she had to choose between relocation and losing custody. By threatening a custody change that need never occur, the law encourages parents to fulfill their obligations. Absent domestic violence or high conflict, this might work to children's advantage.

I do not embrace this conclusion for two reasons. First, the inequality problem remains unless we enact strong measures to deter relocation by non-custodial parents. If we really think parents waive their rights to relocate away from children, we could dramatically increase the child-support duties of non-custodial parents who move, or threaten to end their visitation rights in the hope that the threat would induce them to stay.

Second, not all incentives are reasonable for governments to use. Most of us recoil when the police leverage family members' loyalty to their own ends. For example, officers sometimes threaten to prosecute a suspect's spouse or child unless the suspect pleads guilty. The problem here is not coercion, or even that people should not face hard choices; it is that government should not threaten to undermine intimate relationships as a way of influencing behavior.

Having offered some reasons to doubt that restrictive relocation laws are fair to adults, I want to conclude with a few cautionary notes about whether they are really important for children.

Professor Braver's research on this topic is in many ways careful. But like any social science work it has limitations. I am reasonably confident that he would be the first to acknowledge these. A few seem worth noting here.

First, the underlying data here is largely from surveys that ask college students to recall events from their childhood, some of which long predate the survey. There is nothing wrong with this method. But before making policy choices based on these conclusions, we would want to see them confirmed through other methods, such as longitudinal work that allows measurements taken closer to the events being studied.

Second, it is always difficult to know whether relocation is causing harm, rather than that harmful circumstances are leading to relocation. Professor Braver acknowledges this issue. Indeed his paper examining whether prior parental conflict caused both relocation and harm shows how important causal ambiguity can be. Several of the harms discussed in his first paper were reduced or eliminated once he controlled for conflict. This leaves me wondering whether there are other omitted variables that, once studied, would lead us to think relocation is not harmful at all. Indeed, if we had information about actual parental conflict, rather than children's memories of conflict years earlier, we might learn that conflict explains all of the harm that Professor Braver attributes to relocation.

Third, Professor Braver's study compares the welfare of children who moved with their mothers, or whose fathers moved away, with a third group who fared somewhat better. This third group was a set of families that remained near the marital home. The problem with this comparison is that these families may have remained nearby one another voluntarily. Until we can study children who live with custodial parents who were restrained from moving, we cannot predict what effect restraining moves will have on child welfare.

This comparison-group problem is more than just a methodological quibble. Many other researchers have found connections between child welfare and having a financially secure and personally stable custodial parent, and a home free from violence. We know that escaping conflict and seeking stability are common reasons given for wanting to relocate. So it seems likely that mothers who did not relocate in Professor Braver's study faced fewer problems with conflict, poverty, and personal stability than those who did relocate. This pattern might reveal that children whose mothers relocated had more problems than children whose mothers did not. But those children whose mothers relocated might have been even worse off had their mothers been forced to remain where they were. Given this uncertainty, we cannot really know what relocation rule Professor Braver's data supports.

In closing, I have focused on fairness to adults. In most cases, these concerns counsel allowing relocation without the need for burdensome factual hearings. I am unsurprised to learn that the public may have contrary views about fairness. And I do not discount the wisdom of common intuition. But in this case, the unfairness may have escaped public notice. The job of policy makers is to help shape public opinion to favor fair outcomes, rather than to follow public perception.

As to children's interests, a large body of research suggests that children do well when their primary caregiver does well (both financially and in other ways). Until the harms of relocation are demonstrated with greater certainty, we should not put custodial parents and children at risk by limiting relocation for those who need it, either by coercive threats to change custody or by costly and time-consuming legal proceedings.

Babies Need Their Mothers Beside Them

BABIES NEED THEIR MOTHERS BESIDE THEM
By James J. McKenna, Ph.D.

Throughout human history, breast-feeding mothers sleeping alongside their infants constituted a marvelously adaptive system in which both the mothers' and infants' sleep physiology and health were connected in beneficial ways. By sleeping next to its mother, the infant receives protection, warmth, emotional reassurance, and breast milk - in just the forms and quantities that nature intended.

This sleeping arrangement permits mothers (and fathers) to respond quickly to the infant if it cries, chokes, or needs its nasal passages cleared, its body cooled, warmed, caressed, rocked or held. This arrangement thus helps to regulate the infant's breathing, sleep state, arousal patterns, heart rates and body temperature. The mother's proximity also stimulates the infant to feed more frequently, thus receiving more antibodies to fight disease. The increased nipple contact also causes changes in the mother's hormone levels that help to prevent a new pregnancy before the infant is ready to be weaned. In this way, the infant regulates its mother's biology, too; increased breast-feeding blocks ovulation, which helps to ensure that pregnancies will not ordinarily occur until the mother's body is able to restore the fat and iron reserves needed for optimal maternal health.

It is a curious fact that in Western societies the practice of mothers, fathers and infants sleeping together came to be thought of as strange, unhealthy and dangerous. Western parents are taught that "co-sleeping" will make the infant too dependent on them, or risk accidental suffocation. Such views are not supported by human experience worldwide, however, where for perhaps millions of years, infants as a matter of course slept next to at least one caregiver, usually the mother, in order to survive. At some point in recent history, infant separateness with low parental contact during the night came to be advocated by child care specialists, while infant- parent interdependence with high parental contact came to be discouraged. In fact, thefew psychological studies which are available suggest that children who have "co-slept" in a loving and safe environment become better adjusted adults than those who were encouraged to sleep without parental contact or reassurance.

The fear of suffocating infants has a long and complex cultural history. Since before the middle ages "overlying" or suffocating infants deliberately was common, particularly among the poor in crowded cities. This form of infanticide led local church authorities to make laws forbidding parents to let infants sleep next to them. The practice of giving infants alcohol or opiates to get them to sleep also became common; under such conditions, babies often did not wake up, and it was presumed that the mothers must have overlaid them. Also, in smoke-filled, under-ventilated rooms, infants can easily succumb to asphyxia. Unfortunately, health officials in some Western countries promote the message that sleep contact between the mother and infant increases the chances of the infant dying from sudden infant death syndrome (SIDS). But the research on which this message is based only indicates that bed- sharing can be dangerous when it occurs in the context of extreme poverty or when the mother is a smoker. Some researchers have attempted to export this message to other cultures. However, in Japan, for example, where co-sleeping is the norm, SIDS rates are among the lowest in the world, which suggests that this arrangement may actually help to prevent SIDS.

Human infants need constant attention and contact with other human beings because they are unable to look after themselves. Unlike other mammals, they cannot keep themselves warm, move about, or feed themselves until relatively late in life. It is their extreme neurological immaturity at birth and slow maturation that make the mother-infant relationship so important. The human infant's brain is only about 25% of its adult weight at birth, whereas most other mammals are born with 60-90% of their adult brain size. The young of most other mammals become independent of their parents within a year, whereas humans take 14 to 17 years to become fully developed physically, and usually longer than that to be fully independent.

Apart from being a natural characteristic of our species, constant proximity to the mother during infancy is also made necessary by the need to feed frequently. Human milk is composed of relatively low amounts of protein and fat, and high amounts of quickly absorbed and metabolized sugars. Therefore the infant's hunger cycle is short, as is the time spent in deep sleep. All of these factors seem to indicate that the custom of separating infants from their parents during sleep time is more the result of cultural history than of fundamental physiological or psychological needs. Sleep laboratory studies have shown that bed-sharing, instead of sleeping in separate rooms, almost doubled the number of breast-feeding episodes and tripled the total nightly duration of breast-feeding. Infants cried much less frequently when sleeping next to their mothers, and spent less time awake. We think that the more frequently infants are breast-fed, the less likely they are to die from cot death.

Our scientific studies of mother and infants sleeping together have shown how tightly bound together the physiological and social aspects of the mother-infant relationship really are. Other studies have shown that separation of the mother and infant has adverse consequences. Anthropological considerations also suggest that separation between the mother and infant should be minimal. Western societies must consider carefully how far and under what circumstances they want to push infants away from the loving and protective co-sleeping environment. Infants' nutritional, emotional and social needs as well as maternal responses to them have evolved in this environment for millennia.

Dr. James J. McKenna is a Professor of Anthropology and the Director of the Center for Behavioral Studies of Mother-Infant Sleep, Notre Dame University. This article first appeared in the March-April 1996 issue of World Health, the journal of the World Health Organization.

1996, James J. McKenna

Dr. James J. McKenna is a Professor of Anthropology and the Director of the Center for Behavioral Studies of Mother-Infant Sleep, Notre Dame University. http://www.naturalchild.org/james_mckenna/babies_need.html

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More at http://www.thelizlibrary.org/

Attachment Research Bibliography

(Find annotated Research on Fatherhood, Motherhood, Joint Custody and related topics at http://www.thelizlibrary.org/liz)

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"I've been in this business (of academia) for nearly a quarter century now and nothing depresses me more than the rampant, seemingly inveterate mis-characterization that lies at the core of nearly every academic debate. We are not incapable of arguing about intellectual substance and empirical reality, but we seem to prefer misunderstanding as a subject for invective. The root of this lamentable behavior can only lie in careless habits of reading and thinking (or, worse, in our willingness to argue without reading at all)."
-- Stephen J. Gould. as quoted in Belsky, J. (2001). Emanuel Miller Lecture Developmental Risks (Still) Associated with Early Child Care. J. Child Psycho). Psychiat. Vol. 42, No. 7, pp. 845-859.

Fatherless Children

**Fatherless Children:

Alexander Hamilton - President Gen. George Washington - President Thomas Jefferson - President James Monroe - President Andrew Jackson - President Andrew Johnson - President Rutherford B. Hayes - President Herbert Hoover - President Grover Cleveland - President Gerald Ford - President William Jefferson Clinton - U.S. Supreme Court Justice James Wilson - U.S. Supreme Court Justice John Rutledge - U.S. Supreme Court Justice Stephen Johnson Field - U.S. Supreme Court Justice Thomas Todd - U.S. Supreme Court Justice David Davis - U.S. Supreme Court Justice John McKinley - U.S. Supreme Court Ch. Justice (and U.S. Treasury Secretary) Salmon P. Chase - U.S. Supreme Court Justice Melville Fuller - U.S. Supreme Court Ch. Justice Edward D. White - U.S. Supreme Court Justice John Marshall Harlan - U.S. Supreme Court Justice Benjamin N. Cardozo - U.S. Supreme Court Justice William O. Douglas - U.S. Supreme Court Justice James F. Byrnes - U.S. Supreme Court Justice Arthur J. Goldberg - U.S. Supreme Court Justice Clarence Thomas - Frederick Douglas - Gen. Robert E. Lee - Gen. John Rawlins - Booker T. Washington - Benjamin Rush - Stephen Colbert - George Mason - Fr. Gen. Marquis de Lafayette - Henry Clay - Meriwether Lewis - Eleanor Roosevelt - Jackie Robinson - Mark Twain - George Washington Carver - Nathanial Hawthorne - Eli Whitney - Linus Carl Pauling - Aristotle - Nicolas Copernicus - Sir Isaac Newton - Mahatma Gandhi - Leonardo da Vinci - Confucius - Queen Elizabeth I - Jean-Jacques Rousseau - William Blackstone - Alexander Fleming - Nelson Mandela - Catherine the Great of Russia - Alexandre Dumas - Gen. Alexander Haig - Alabama Governor Bibb Graves - New York Governor Al Smith - Tennessee Governor Sam Houston - Indiana Supreme Court Justice William Allen Woods - U.S. Senator Al Sharpton - U.S. Senator Bella Abzug - U.S. Senator Barack Obama - U.S. Senator William Warren "Bill" Bradley - Queen Victoria of Britain - Alan Greenspan - Alessandro Volta - Ada Lovelace - Jane Austen - George Eastman - Roy Wilson Howard - Johann Sebastian Bach - Gottfried Wilhelm von Leibniz - John Lennon - Hans Christian Andersen - Edward Jenner - Giacomo Puccini - Joseph John ("J.J.") Thomson - Bertrand Russell - Hermann Rorschach - Herman Melville - John Keats - Marian Anderson - Garry Kasparov - Leo Tolstoy - Peyton Rous - Benjamin Carson - Raphael - David Hume - Hannah Arendt - Ralph Waldo Emerson - Stephen Crane - Friedrich Nietzsche - Agatha Christie - William Wordsworth - Max Weber - Cleopatra - Audie Murphy - Gustav Theodor Fechner - Edgar Allen Poe - Emile Zola - William Smith - Gerald Bull - Willa Cather - Daniel Dennett - Cass Gilbert - Mary Leakey - Charlie Chaplin - Nelly Bly - Max Born - Sarah Breedlove - Steve Allen - Louis Armstrong - Warren Hastings - Allan Pinkerton - Billie Holiday - Hank Williams - Malcolm X - Carol Burnett - Thomas Green Clemson - John Irving - J.R.R. Tolkien - Charles Bronson - Gene Hackman - Robert Hooke - Halle Berry - Eddie Murphy - Caroline Kennedy Schlossberg - Deborah Sampson - Ralph Ellison - California Supreme Court Justice Rose Bird - Eamon de Valera - William Reddington Hewlett - Mother Angelica - Deval Laurdine Patrick - F. Whitten Peters - Henry Talbot - Arthur C. Clarke - Jim Rogan - Frederick W. Alt - Emil J. Freireich - Charlotte Perkins Gilman - Bessie Coleman - Bertrand Russell - Dorothy Andersen - Chiang Kai-shek - Coco Chanel - Anderson Hayes Cooper - Hunter "Patch" Adams - Jack Nicholson - Roald Dahl - Douglas Fairbanks - David Harker - Irving Berlin - Loretta Young - Barbara Stanwick - Steve McQueen - Cher - Wayne Dyer - Sophia Loren - Stephen King - Whoopi Goldberg - Fatty Arbuckle - Dorothea Lange - Gloria Steinem - Gloria Gaynor - Jon Stewart - Bette Davis - Tom Cruise - Bill Cosby - Barry White - Jodie Foster - Ed Bradley - Rickey Henderson....


**The term "fatherless" is used in this post as it is in current research and policy rhetoric by the U.S. federal government, DHHS and the National Fatherhood Initiative, most U.S. states in connection with child custody law and policy, and various family values and fatherhood interest policy and lobbying groups.

Why Therapeutic Jurisprudence Must Be - and Will Be -- Eliminated From Our Family Courts

One of the problems with the rise of therapeutic jurisprudence and the placement of non-legal systems into the courts is the subtle denigration of long-established precepts of lawyer independence and due process. One of the multiple ways this happens in the family courts is through the common development of multidisciplinary collegial relationships and business referral.

The problem arises because most lawyers represent different clients taking different sides in different cases (sometimes the wife, sometimes the husband, sometimes the "good guy", sometimes the "bad guy", etc.). If a lawyer coming into a case runs up against an expert he has a referral or employment relationship with in other cases, and that expert takes an adverse position to the lawyer's client in the new case, the lawyer will have a very difficult time adequately representing his client. Appropriate representation may require the lawyer to strenuously object to an expert's testimony -- or even the expert himself. But if the lawyer needs the good will and cooperation of the expert in connection with the lawyer's other clients' pending cases, he cannot do that because he may put those other cases at risk.

Lawyers in these positions will be tempted to rationalize to themselves, as well as maintain the posture in the community at large, that the expert's opinions, even when they are adverse to his client, are scientifically valid -- even when they may not be, even if they are deeply flawed or completely bogus. These lawyers may rationalize to themselves that the validity of the science is not their responsibility because, after all, lawyers are not "scientists".

The lawyer who naively or purposefully steps down the path of multidisciplinary practice, regularly exchanging referrals and engaging in other close associations with nonlawyer case participants (a practice that is encouraged by the mixed-discipline organizations such as the AFCC under the Orwellian assumption that this fosters justice and works to "improve" the courts) in fact has sold his professional soul to the devil -- literally.

The lawyer and these other participants in the system have different roles. When lawyers directly hire paralegals, experts, and others to assist them, there is not as much of a problem, even when these individuals are independent contractors. First, their work is covered by attorney work product unless and until they testify. Second, because they were hired by the lawyer, they are subject to the same conflict of interest rules as the lawyer is, as far as their involvement in other cases. That is not the case with "independent" experts, however. Custody evaluators and guardians ad litem who render opinions "for the court", so-called "court-appointed experts", are a very different matter.

The conflict of interest problems are inherent in the nature of the association. They exist even when there is no explicit association or referral relationship. They are not the same as having a professional relationship with another lawyer who regularly may be on the opposing side of a case, because unlike the lawyer colleague, these individuals are case participants -- witnesses or even parties. They are not akin to neutral judges or magistrates, the bailiffs or other courthouse personnel. None of these truly neutral courthouse persons advocates for a position in a case, testifies as a witness, or participates as a party proper, as do some GALs.

The routine broad involvement of these expert witnesses must be recognized by the legal profession as an egregious misjudgment it is, as well as fostering ethical violations that must be addressed by state bar ethics rules.

Ironically, the problem is worse for lawyers who are not ideologues, because these lawyers are more likely to advocate for different client perspectives. The legal community, even in urban areas, is limited and often close-knit. Lawyers in the same area of practice regularly encounter each other. The pool of forensic experts and GALs tends to be even smaller. The repeated association time and again of these experts in cases means that at any time and from time to time any given expert may show up on the "wrong side" of a lawyer's case -- and simultaneously also be on the "right side" of other of the lawyer's cases, whether as hired expert or court-appointed expert. This creates many of the same dilemmas that ordinary client conflict-of-interest issues do.

Contrary to the rationalizing rhetoric, court-appointed evaluators and opining GALs are not neutral participants in the system. Even if they initially are hired under that rubric, once their reports are rendered, and their opinions formed and ready to be given, they have become advocates for one or the other side or issue. Thus, at a point, they are, just as any party would be, pointedly in favor of certain outcomes, and adverse to others.

What does the lawyer do when an expert the lawyer is relying on in one case takes a similar position that lacks scientific merit against another of the same lawyer's clients in another case. Because the expert and the lawyer have been, are currently, or will be in cahoots in other cases, the lawyer is placed into a conflict, unable zealously to discredit the expert when that is necessary to protect his client. Bar ethics rules must address this.

Lawyers are advocates. If an expert's position supports the lawyer's client, the lawyer is going to accept that opinion and put it forward in the interests of his client's case. But when the lawyer encounters the very same scientifically meritless position by the same expert in a case in which that does not favor the lawyer's client, what does the lawyer do? The problem is especially egregious in the area of psychological "experts" because, unlike other kinds of experts, the field of applied psychology is overrun with political machinations, nonsensical theories, half-baked ideas, and outright misrepresentation of research. Too often it's not "science" and it's not technical knowledge. Much of the time, it's akin to expertise in astrology, or theology -- a familiarity with complicated ideas and methods of calculating answers, and the body of literature that discusses all of this, but somewhere between unhelpful and misleading when it comes to ascertaining the facts.

Unlike lawyers in many other areas of practice, who may retain their clients for years, family lawyers typically need a steady stream of new one-shot clients. In addition, family lawyers also tend to work in smaller firms. So they value those who send them business. Too many family lawyers, perhaps without recognizing or acknowledging the subtle conflicts of interest that have caused their discomfort and unwillingness adequately to represent some of their clients in some of their cases, in fact have sacrificed these clients on the altar of maintaining their professional relationships, associations, and referral sources.

In such circumstances, some busy family lawyers admit to feeling burnout, but they've rationalized their unwillingness to zealously advocate for their clients, as well as their discomfort, as stemming from the "high conflict" created by unreasonable clients, or the high emotional toll the cases are taking on them. Others retain their enthusiasm by becoming extremist ideologues and proponents of bad science, taking only cases in which they will not encounter these conflicts. For example, this is seen among lawyers who overwhelmingly assert that their clients have been the victims of "parental alienation". The lawyer becomes committed to propositions outside of law and outside of the lawyer's academic expertise, carrying these into media of the legal field. This conveniently furthers the propagation of the bad science.

Some lawyers caught in this vortex justify their lack of vigorous representation, and the coerced settlements they've foisted on some clients as really hailing from a motivation and concern for the best interests of children, or as taking the reasonable settlement position, or the high road, or as their commitment to helping people to just get along. They may profess to themselves and each other and everyone else around a great affinity for mediation and therapy and collaborative resolution, and all manner of therapeutic jurisprudence in the interests of everyone, and similar specious posturing, encouraged in their self-delusion by a steady drip of MHP literature. This kind of thing is just not as pervasive in other areas of the law, no matter how heated the conflicts get, and it's one substantial reason the public has such a generally dim view of the family courts and family lawyers.

Given that clients are entitled to their choice of attorneys, and are entitled to independent, unconflicted, agents at law who are committed to furthering their interests and goals (as the client, not the attorney, has defined them), the only viable solution is a disqualification of any GAL or forensic expert who previously has been associated in any case with either of the lawyers in that case, and the striking and nullification of all testimony and reports of that expert, no matter at what stage of a case the lawyer is hired.

It also is time to substantially limit the use of forensic experts and GALs in family court altogether because for the most part, MHPs, including child custody evaluators and their related forensic offshoots, in fact are unneeded, unhelpful, and undesirable in the vast majority of child custody cases.

http://www.thelizlibrary.org/therapeutic-jurisprudence/time-to-end-it.html