A legal note from Marshal Willick about a wee bit of attempted blackmail, from those who really should know better, and what the court system should do about it.
Numerous problems relating to Mental Health Professionals (“MHPs”) involved with the court system were discussed previously. Modifications to the appointments of such persons were suggested to keep their work within Constitutional (and common sense) limits. Some of them don’t like that idea, and have reacted with, effectively, the threat that if they can’t do what they want how they want, they will refuse involvement with the Court. Good, and good riddance.
These problems have been ongoing. In February, 2011, legal note Vol. 34, “Shrinks Gone Wild,” posted at http://www.willicklawgroup.com/newsletters, lamented the “gross and pervasive failure of various mental health professionals to perceive and fill their proper place in the legal process.” The primary focus of that note was on custody and relocation decisions.
Zero improvements were seen, either from the MHPs themselves or the courts that continued to appoint them as custody evaluators, parenting coordinators (PCs), or for other functions. In fact, the arrogant assertion of (perceived and announced) absolute authority only continued to worsen.
By May, 2012, legal note Vol. 51, “Shrinks Gone Wild 2,” posted at http://www.willicklawgroup.com/newsletters, recounted the shocking abuses, attitudes, words, and actions of MHPs acting as Parenting Coordinators and other appointed experts.
That note went into considerable detail as to the observed problems, including a review of the 2007 court form order of appointment of such PCs. That form order was largely put together by various psychologists, and was chock-full of blatantly unconstitutional provisions, such as barring people from access to the courts by the unrestrained whim of non-judicial personnel.
The note suggested a complete overhaul of the form appointment order, and a moratorium on the appointment of PCs and custody evaluators “until structural deficiencies with their education, assignments, and reports have been adequately addressed.”
II. EFFORTS TO ACTUALLY DO SOMETHING ABOUT THE PROBLEMS
A. FIXING THE FORM ORDER
On July 12, 2012, the meeting of the Clark County Family Court Bench/Bar Committee was devoted to this subject. The problems recounted above were raised and discussed.
The meeting primarily addressed the defective 2007 form order (posted under the heading “Model Order for Appointment of Parenting Coordinator (draft),” at http://www.willicklawgroup.com/clark-county-bench-bar-committee). Proposed changes to that order, along with an itemized recap of the reasons for all such changes and a revised model correcting the problems, were posted in advance. They are on the same web page under the heading “Proposed Changes to the Model Parenting Coordinator Order (July 12 meeting).”
The revised order eliminated unconstitutional or unlawful provisions, including those restricting access to court without first participating in subjective “grievance” procedures (see Van Schaik v. Van Schaik, 24 A.3d 241 (Md. Ct. Spec. App. 2011)) and those that apparently could be read as permitting a PC to interfere with attorney/client privilege (see, e.g., Gideon v. Wainwright, 83 S. Ct. 792 ((1963) (noting that access to counsel, unimpaired and unimpeded, was guaranteed by the 14th Amendment); Morales v. Turman, 326 F. Supp. 677 (E.D. Tex. 1971) (noting the fundamental nature of the right to confer with counsel of one’s own choosing)).
It also altered virtually all references to PCs having “authority” to “resolve issues” (with the exception of specific enumerated delegated functions) in favor of duty to obey existing orders and to recommend changes to those orders, while resolving conflicting interpretations or applications where orders are imprecise or silent, and to facilitate non-substantive administrative details such as pick up and drop-off times and places.
It eliminated the unenforceable assertion of authority to “compel” participation by third parties (non-parties to the dispute before the court) in favor of power to “request the participation” of third parties. It made explicit the need to abide by current orders, not attempt to “treat” any person involved, to respect the attorney/client relationship, and to not interfere in any way with access to court.
The revised form moved matters of judicial discretion to a specific section to be individually delegated by the judge in the case – or not, such as the power to resolve minor disputes pending court decision on modification, to recommend modifications to the Parenting Plan (as opposed to simply enforcing/facilitating the existing order), and to direct the parties to drug screens, parenting classes, psychological services, etc.
The revised form made various other changes, all of which were designed to curb abuses of alleged “authority” by PCs in favor of retaining judicial authority, ensuring transparent communications to counsel of what the PCs were doing and why, and ensuring that any modifications to existing orders were actually approved by judges before going into effect.
B. TRAINING MHP PROVIDERS
On October 5, an all-day continuing education course for MHPs was held at Zenoff Hall (at the family court). Titled “Legal Parameters and Child Interviewing Skills for Forensic Service Providers,” the first half-day consisted of basic legal training for MHPs, presented by four family law attorneys,* with “color commentary” provided by a panel of four judges.**
[* – Thanks to attorneys Kari Hanratty, Michelle Hauser, and Corinne Price for their time and efforts in drafting and presenting the seminar materials.]
[** – Thanks to Family Court Judges Cynthia Giuliani, Bill Henderson, Cheryl Moss, and Kenneth Pollock for taking the time out of their schedules to attend and assist with this seminar.]
The course topics were:
– Constitutional Principles
– Nevada Custody and Visitation Law
– Financial Family Law
– Relocations and the MHP role
– Law Relating to MHPs & Interactions with Court system
The materials for this “Family Law 101 for MHPs” course are posted at http://willicklawgroup.com/legal-parameters-for-forensic-service-providers/.
In an attempt to assist MHPs in actually fulfilling the roles assigned by the court, the materials included “special master” forms for use in making recommendations to the court.
With this number and variety of serious and technical legal topics on the agenda, what was the first topic raised by a member of the audience as a concern? That MHPs are “distressed” by reference to them as “shrinks” (well, some of them, anyway; that apparently did not include the psychiatrist in attendance with the website “LVShrink.com”).
Still, in fairness, the MHPs in attendance appeared genuinely interested in the legal context governing their participation in court cases and hopefully learned enough about basic family law and court procedure to permit their work to be part of the solution in cases, rather than exacerbating or creating new problems in them.
III. THE ACTUAL JUDICIAL RESPONSE TO DATE
There was a move after the July Bench/Bar meeting by some of the more progressive judges to formally scrap the 1997 form order to prevent the kind of mischief in which it was implicated. This was resisted by others, apparently for a variety of reasons.
While judicial deliberations are not public, indications are a combination of turf/ego protection from those that may have had a hand in creating the earlier order, general languor by those not much interested in expending energy on anything like reform or system improvements, and an unfortunate dose of knee-jerk “No one is going to tell me what to do in my department.”
Regardless of motivation, the result was total non-action aside from the tepid announcement that attorneys in individual cases should draft orders tailored to their particular cases. For those attorneys put in the position of doing so, I suggest using the revised model form posted on the Bench/Bar page, for all the reasons recounted above. Some judges announced that they would craft their own models, selected from desired portions of the models.
IV. A BIT OF (ATTEMPTED) BLACKMAIL
Some more militant members of the local MHP community – very obviously having decided on a course of action collectively and noticeably absent from the legal training that was provided – have started sending letters to judges declining appointments unless the defective 2007 form order, with all of its sweeping (and unjustifiable) “authority” is used.
Some examples have been forwarded. One alleges that not giving PCs carte blanche authority to do whatever they want “runs counter to the practical role the PC is expected to undertake” and generally attacks the revised order for taking away from the PC the power to make decisions – in other words, to become the judge. It denigrates the revised order as relegating a PC to the role of a “mere mediator.” It specifically resists actually having to tell the attorneys what the PC is doing.
Another example, three months later in time, contains virtually identical language. The collusion is beyond obvious, and the purpose – to blackmail the court into surrendering judicial authority in order to obtain the requested services – is equally patent. In the words of Monty Python, “You’re not fooling anyone, y’know!”
These MHPs proceed from a pretty gross misinterpretation of their place in the legal universe, and an over-estimation of their importance to it. The letters forwarded to me, notwithstanding their polite verbiage, are a tantrum by those who should have more insight into their own motivations. They effectively shout, like Cartman, and with an equal lack of legitimacy: “Respect my Authoritah!” (See http://www.youtube.com/watch?v=gx4jn77VKlQ).
V. THE APPROPRIATE JUDICIAL AND ATTORNEY RESPONSES
A. LAWYERS FACED WITH JUDGES WHO TRY TO USE THE 2007 FORM ORDER
Permitting use of the 2007 form order without protest would be malpractice per se. A lawyer who stands by and permits the appointment of an unqualified pseudo-jurist armed with unconstitutional and unlawful “authority” over his or her client deserves whatever resulting liability materializes.
And if a judge insists on making an order filled with unlawful and unconstitutional terms after being put on notice that such is the case, at least an appeal, and perhaps a complaint to judicial discipline, is warranted. We all have to live within the bounds of the law – shrinks, sharks, and archons alike.
B. MHPS WHO DO NOT WANT TO CONFORM TO CONSTITUTIONAL LIMITS
MHPs who refuse to conform their activities, actions, and reports to constitutional and legal limits should have no further interactions with the courts. Period. Training in basic legal and procedural limits should be a precondition to referral of any case from the court.
The judges must find a way to rise above the proclivity to act like a herd of cats, at least long enough to compel the Family Mediation Center to properly vet its list of “experts” – regardless of the agency’s complaint that it lacks the “resources” to do so. With a paid full-time staff of dozens of people, if it is necessary, it can and does get done. And it is necessary.
FMC should be given 30 days to evaluate the competence, training, experience, ability, and current qualifications of every practitioner on their “approved” list and submit the report to the Presiding Judge; if she is unable to review the submissions personally, a three or five-member committee of lawyers and judges could do so in an afternoon.
Additionally, FMC should be compelled to add to its list of PCs attorneys who have volunteered to take such assignments. There are several such in town, and FMC acting as an effective shill for the MHP community by trying to make lawyers less visible for the work (which is precisely what they are doing in a back-scratching exercise for their friends) is outrageous.
“Specialties” listed on the “approved list” that do not have objective and verifiable training, certification, approved methodology, objective benchmarks for success or failure, and peer review should be deleted. Those tasks that do appear to be within legitimate areas of “expertise” should be populated on the list only with those trained, certified, and possessing up-to-date continuing education in those fields. Where that standard is not met, self-proclaimed “experts” should not even be allowed to testify in court proceedings, nevertheless be vested with delegations of judicial authority.
C. LAWYERS, NOT SHRINKS, SHOULD BE PARENTING COORDINATORS
Once a case has made it through the litigation process far enough for the court to realize that the parties will just not be able to cooperate in parenting issues, a Parenting Coordinator can be assigned. The question is who is best suited for the task – specifically, a lawyer or a MHP?
Multiple lawyers who have practiced family law in Nevada for over 10 years have shared their experience with court-assigned MHP Parenting Coordinators. For the most part, they agreed that MHP Parenting Coordinators were not experienced in application of the law and tended – often – to provide very skewed direction to the parties based on what they “thought” was meant by the Judge or “their take” on particular statutes.
The net effect of such actions is to create additional conflict in the relationship between the parties, and between the parents and their children. More often than not, such errors have actually produced the opposite result from what was intended by appointment of the PC: it caused the parties to appear multiple times back in court to have the Judge resolve basic issues of law that should never have had to be brought back to court.
And, contrary to the assertions in the two PC letters discussed above, such problems are not “anomalous” – they are endemic. Most lawyers who have written in on the topic have reported similar, repeating problems in their cases, although the lawyers also state that they have generally tried to minimize public commentary out of concern for a possible backlash against their clients.
Virtually without exception, the actual duties of a PC acting within the legal limits of the role do not require any special psychological training.
By the time a PC is appointed, the court will already have issued specific visitation and custody orders – even if they are only temporary – with which the parties are to comply. When there is a dispute between the parties after such an order has been made, it is not a psychological issue; it is a compliance issue.
Who better to objectively interpret the Court’s orders and to advise the parties as to their liability for non-compliance than a lawyer? An MHP does not have the training or the credentials to advise a party of the repercussions of violating a court order. They also have a tendency to try therapy to resolve a conflict, when the court order is not concerned about how the parties feel. (Of course, the parties may both need therapy, but that is outside the requirements of what a PC is supposed to be doing.)
When there is a little latitude or vagueness in a court order which has created the conflict, the PC can make the call – which is invariably one of common sense – and advise the parties that they can always take their dispute back before the court. Of course, an attorney can also easily explain the range of determinations available to the court and give an estimation of the cost of pursuing additional litigation. All of this is not possible for an MHP.
In too many cases, MHP PCs actually create more conflict, fail to teach the parents to co-parent, and become a crutch for one or both of the parents. Attorneys in the PC role have far less trouble telling parents to just stop when they are acting stupidly, and doing so is more usually far more effective and cost-efficient than attempted therapeutic hand-holding.
The bottom line is that there are no tasks that should be assigned to a Parenting Coordinator that require the skill set of an MHP, but almost all of the skills of an attorney are needed in the role.
D. REDUCTION IN RELIANCE ON OUTSOURCED CUSTODY EVALUATIONS
Nothing visible has been done by the judges since legal note Vol. 34, nearly two years ago, to constrain outsourced custody evaluators and other forensic service providers to legally-cognizable methodologies and reports. This is unfortunate.
In Nevada, MHPs are entitled to “quasi-judicial immunity.” Duff v. Lewis, 114 Nev. 564, 958 P.2d 82 (1998). Unfortunately, this has produced a climate in which custody evaluations and relocation reviews continue to appear in court consisting of unsubstantiated drivel, hokum, and psychobabble dressed up like “expert testimony.” Examples abound.
For example, reports continue to include unqualified, incompetent personal opinions about whether relocations are “a good idea.” According to an expert panel convened by the AAML in September, 2012, however (reported by Deborah A. Day, Psy.D. & Arnold Shienvold, Ph.D.), the current state of the art of social science research in relocation cases reflects only that data is extremely limited, and while some generalizations relating to multiple consecutive moves can be made, the data does not otherwise “create favor for or against relocation.”
The so-called “Relocation Risk Assessment” is used by some MHPs submitting such reports as a handy vehicle for cloaking their personal opinions in a veneer of purported analysis, but the same AAML/APA panel noted that the study from which the “assessment” was derived utilized a tiny sample size and even the shrinkological community concedes that it is unreliable for any purpose.
Under NRS 50.275, and Hallmark v. Eldridge, 124 Nev. 492, ___, 189 P.3d 646 (2008), there are limits on what is and is not acceptable content for an “expert witness report.” Under the statute, the witness must be able to demonstrate special knowledge, skill, experience, training or education, and to deliver testimony within the scope of such knowledge. Personal opinion has no place in an expert’s testimony.
Under Hallmark, the five factors to judge reliability of a methodology as to a proffered opinion is whether it is: (1) within a recognized field of expertise; (2) testable and has been tested; (3) published and subjected to peer review; (4) generally accepted in the scientific community [this is not always determinative]; and (5) based on particularized facts rather than assumption, conjecture, or generalization.
Much too often in Nevada courts, “personal biases or unsupported beliefs” are paraded as expert testimony – despite the 2009 warning in the Guidelines from the American Psychological Association against doing so.
Lawyers should be much more on guard against such abuses and be cognizant of the fact that insertion of personal opinion into reports and other violations of APA Guidelines is unethical and the basis for ethics complaints to licensing boards. See Grossman v. State Board of Psychology, 825 A.2d 748 (Pa. Commw. Ct. 2003).
The lesson? Those who would be cloaked in judicial immunity have an obligation to comply with their own rule sets in performing their work, and when they step outside of those bounds, lawyers should be prepared to act. We just might get more legitimate evaluations and reports if there was some concern for consequences; if we don’t, judges should refuse to admit them.
MHPs have been given way too much latitude, and accorded much too much deference, by lawyers and judges. Their training, expertise, abilities, knowledge, and legitimate function is much more narrowly confined than that to which they have become (much too) accustomed.
It is irresponsible to give such practitioners any authority beyond their competence. Lawyers should be far more aggressive in challenging sub-standard work, and judges have got to rouse themselves to become more effective gate-keepers, less concerned about their personal independence than in the legitimacy of their appointments and correctness of their decisions.
The 2007 form order for appointment of PCs is an unconstitutional horror show. Any lawyer permitting its use without challenge commits malpractice, and any judge insisting on it commits malfeasance.
MHPs who refuse to attend even basic legal training as to the limitations on their role and reports should not be referred cases from the courts. The “approved list” should be vetted, non-existent specialties purged, and should be limited to those with demonstrated credentials and current educations. This should be done now.
Blackmail of any kind is repugnant. In pursuit of personal power without lawful justification, in excess of Constitutional and legal authority, it is unconscionable. Those MHPs who demand such privilege should be terminated from all court-connected appointments, effective immediately.
In virtually all cases, PCs should be lawyers, not MHPs. If one of the latter is chosen, proven familiarity with – and agreement to scrupulously adhere to – legal limits on the role should be demanded in advance of any such appointment.
Judges should be far more vigilant in ensuring that the legal process is not distorted by, or surrendered to, mental health professionals who are not qualified to make legal determinations relating to child custody, relocations, or much of anything else. Judges are both guardians and gatekeepers of the legitimacy of the determinations made in their courtrooms and must relentlessly pursue that legitimacy if they want to be perceived as having it.
VII. QUOTES OF THE ISSUE
“The shortest and surest way to live with honor in the world is to be in reality what we would appear to be.”
“It is not only what we do, but also what we do not do, for which we are accountable.”
For some of the CLE materials and articles produced by the Willick Law Group, go to http://willicklawgroup.com/cle-materials/ and http://willicklawgroup.com/published-works/. For the archives of previous legal notes, go to http://www.willicklawgroup.com/newsletters.
If there are any problems with or suggestions for these newsletters, please feel free to email back to me. Thanks.