The Hevesi/Harckham Bills to Stop Custody Evaluations: Banishment or Positive Error Culture?
Introduction
Most forensic mental health professionals (FMHPs) go to work in the morning wanting to do good things. They hope to help courts working with parents and children involved in protracted custody disputes. They hope their evaluations clarify children’s needs and educate courts about the risks and benefits of various parenting plans. Most view protecting children from the harm of angry, separating parents is job #1. FMHPs hope that the report they produce will facilitate resolution or wise judicial choices regarding the best interests of the children.
In recent years evaluators have been confronted with criticism from legal and forensic scholars (E.g., Emery, et. al, 2005; Melton, et.al., 2007; O’Donohue & Bradley, 1999; Tippins & Wittmann, 2005), a NYS Blue Ribbon Commission (2021), and tragically traumatized parents whose children died at the hands of a former spouse after an evaluation. Notwithstanding some real concerns, many colleagues have commented that they feel their work has been unfairly demonized. For example, there have been broad generalizations about forensic work from these tragic deaths. Now FMHPs are faced with a bill sponsored by Assemblyman Alan Hevesi (D-Queens) to eliminate forensic evaluations in custody and access matters (Bill A-10424 originally, now A532) and another by Senator Harckham and others (Bill 5385) calling for a moratorium. The bills have been percolating in committees and currently reside in the Assembly Judiciary Committee and the Senate Children and Families Committee. The Hevesi bill is the one of the two that offers a rationale so it will be the main focus of this critique.
Bill A10424
As written the bill states that “No court shall order or allow into evidence a forensic report in the context of a custody or visitation proceeding” and five arguments for such a complete banishment. It appears to offer the rationale for itself and for the Senate bill (which has identical language).
Argument #1: Outsized Role: The Hevesi bill states that “Forensic evaluators currently play an outsized role in child custody and visitations (sic) proceeding.” This can be interpreted as meaning that judges place too much weight on them when making decisions, something about which reasonable people can disagree. We know that the vast majority of judges report finding them to be valuable and report relying heavily on them (Axelson & Gentile, 2024), suggesting they do not see evaluations as usurping their judicial role. However, if “outsized role” means that evaluations are being ordered in most cases (with FMHPs involved in most of the court docket), this assertion appears false based on the Axelson & Gentile, study. . FMHPs are only rarely involved.
Argument #2: No Standards or Accountability: This assertion is somewhat misleading, conjuring an image of evaluators gone wild. Psychologists have detailed ethics codes along with state regulations they have to abide by in their general practices, with violators risking expulsion from the APA or disciplinary actions at the state level. These codes and regulations address core issues related to informed consent, ensuring work is based on the best research available, dual roles, among many other topics. Psychiatrists do have little controlling their choices as evaluators other than their broad medical ethics. All of the disciplines that do child custody evaluations (CCEs) have access to professional guidelines that, while not controlling, offer rich information about best forensic practices. The most thorough of these guidelines include those published by the Association of Family and Conciliation Courts (2022) and the American Psychological Association (2022). The AFCC guidelines have very explicit references to the special care needed in domestic violence cases and call for screening for such problems in every case.
However, real accountability is another story. In other states with deeply detailed statutes and regulations regarding CCEs (e.g., Texas, California, Colorado) practitioners can be made to account for risky or bad practice. In New York, however, psychologists have a one page, partially inaccurate document produced 28 years ago (before all major guidelines were published) to give us direction (NYS Education Dept., 1997) and a requirement that we complete domestic violence training — there are no meaningful forensic-specific statutes or regulations to “guardrail” our work. Hearing about an evaluator being disciplined in this area of work appears to be an almost non-existent phenomenon (I have never known of a colleague who was disciplined by the state board for CCE work during my almost 40 years of practice), although the group supervising the panel of evaluators for the 1st and 2nd Departments will, on occasion, exert disciplinary control (which can include expulsion) in response to complaints. In this state we do not police what we do well and given that multiple professions do this work we do need more state-level oversight.
Argument #3: Evaluators Cause Tragic Consequences for Children: One murdered child is far, far too many. The Hevesi bill, as part of its justification, sounds an alarm implying that involvement in a CCE increases the chance a child will die or be abused. As a basis for this assertion, it cites a very tragic death of a child following forensic assessments in Nassau County and survey research reported by Daniel Turkat in 2016.
The mistreatment or death of any child following any involvement in the family justice system should demand deep investigation of the court and evaluation processes, analysis, and self-inspection (a “post-mortem”) about whether anything should have been done differently. Humility dictates that we embrace the reality of human error and have systems for preventing its reoccurrence, especially when children are the victims. The mechanics of how this could be done is a complex issue for another time but there are models that NY State could adopt.
Since its publication in a small newsletter for Judges, Dr. Turkat’s (2016) admittedly preliminary and exploratory work offered as its main and very unsurprising finding that 23 percent of parents thought their custody evaluation had negative effects on their children and 19 percent said it was harmful for them. Frankly, it is surprising that the percentage was not even higher given the reality that there is usually one parent who feels the results were not best for their children in a custody matter. Turkot’s research has been heavily criticized (see Gould & Posthuma, 2016) and has never been published in a peer-reviewed journal.
A very small number of children are harmed or die from dental procedures – one child is too many, but no one is proposing eliminating pediatric dentistry. There is significant hyperbole around the risk of forensic examinations for children who need our cautious care. For example, three NYS Assembly committees heard in a 2019 joint session from a psychologist that child custody evaluations miss abuse, that this results in the death of children, and that “Tragically, this is not a rare event” (Public Hearing on the Rights of Children in Court, 10/24/19). From my review of the literature, child deaths in divorce matters (regardless of whether a forensic practitioner was involved) are the very definition of extremely rare, and tragic events that our systems need to be hyper-vigilant about. We have no reliable data about how many of those cases even involved a forensic evaluation. A very small sample of tragic events does not make a trend. Based both on my own literature review and consultations with multiple experts on this topic it appears that, to date, there is no data supporting the conclusion that mortality risks for children of divorce, as a group, increase when there is interaction with a forensic evaluator (for all we know they might decrease) and few if any critics seek and include data about how often evaluations have improved or even saved children’s lives.
Argument #4: Empirical Studies Conclude Forensics Should be Excluded from the Fact-Finding Process: This is an assertion without a basis. It references a 2005 piece (Not a research study) by this author and Timothy Tippins, Esq. that, in fact, did not conclude that forensic assessments should be excluded (Tippins & Wittmann, 2005). We actually asserted their importance at the time while emphasizing the lack of empirical data supporting making child custody recommendations (compared with the more ethically and empirically sound practice of summarizing the psychological risks and benefits for the child associated with each parent and/or with different custodial plans). It should be noted that Tippins now favors discontinuing the use of forensics in custody cases (Personal communication, 12/1/25).
The bill also references a quote by this author from 40 years ago emphasizing the risks of bias in our forensic opinions (Wittmann, 1985). To be sure, various forms of bias are a risk factor for flawed forensic assessments. However, what is often forgotten is that distorting biases have little to do with being a mental health professional and more to do with being a member of homo sapiens (distorting case-related biases have been documented among lawyers, judges, MDs, and many others). Our responsibility, however, remains the same: We have to be diligent about minimizing the effects of bias on families via a scientifically grounded assessment process and via admittedly imperfect debiasing methods (Neal et al, 2022), and all of us – FMHPs, attorneys, judges – need to be making this effort in order to protect children.
Argument #5: Economic Impact of Forensics: There is no avoiding the fact that forensic evaluations can be expensive, sometimes outlandishly so. At the lower cost end of the continuum were those conducted at a time when county clinics had community mental health funds to support providing what was perceived as a service that helped support best interests’ outcomes. Those funds are now virtually non-existent, which disadvantages lower income families. Those lower-cost approaches have been replicated, to an extent, by judicial orders cobbling together public funds and including fee constraints. At the upper end of the continuum, we have six figure evaluations that can take over a year until completion. I have reviewed reports that were 200, even 400 pages long. Massive reports can offer very helpful information, but they can also create a perception that such an expensive approach is necessary (The clinical judgment literature offers an argument that there can also be perils in having too much information). Such evaluations also can change the role of evaluator to that of mini-judge (One who will review every fact in the case and render an opinion) rather than a more constrained forensic focus on variables that our disciplines can reliable and validly assess and that have the greatest predictive power. (e.g., quality of the parent-child relationship, nature and intensity of parental hostility, etc.).
Real Problems with Forensics
Carefully designed, custody/access assessments that adhere to the best professional guidelines available can provide invaluable information to a court trying to weigh difficult best interest issues. They can help clarify conflicting versions of family history and discern children’s psychological needs that can get lost in the din of conflicting allegations and assertions by legal advocates. They can humanize the child in question and the parents whose litigation is often fueled by powerful feelings of fear, shock at abandonment, betrayal, embarrassment, or fury. Given their unique skills for interviewing and investigating, evaluators can bring to the court’s attention key child-relevant facts. They can help judges “get closer” to the real family before them by gaining access to information that is not slanted by honorable, yet often distorting litigant interests. Moreover, forensic assessments can serve as another set of eyes for spotting real and worrisome risks impacting a child’s life that no one else in the system has spotted (e.g., that dangerous coercive control is present; that a child is being molested; that a parent’s learning disability makes them unable to read their child’s medication bottles; that a teen has secretly considered suicide; that a father has cut the mother’s face out of all family pictures, etc.). Such idiosyncratic discoveries can be the difference between resolutions that endanger children and those that protect them, and they go far beyond what some say should be our limited role: Assessing for mental illness.
However, as a profession we need to be aware that there are very real problems with forensic assessment in custody/access matters. To name only a few: The data we choose to gather and the methods we use vary highly from evaluator to evaluator. Some evaluators ignore promulgated guidelines from our professional associations (just as some lawyers and judges may ignore their ethics and case law). Conclusions can read as if appearing out of the ether without a grounding in the data that should undergird them. And yes, some evaluators (and it must be said, some lawyers and judges) are insufficiently sensitive to critically important variables that affect children: Intimate partner violence, coercive control dynamics, lethality indicators, alienating behavior, substance abuse, etc., an insensitivity that may help gestate flawed legislation like the Hevesi/Harkham bills that seek a quick fix for complex problems in the family law system while ignoring the benefits of skilled forensic assessment to vulnerable children.
Finally, we accept appointment orders that ask us to do something that there is no evidence our field can reliably and validly do: Pick a parent/Pick a plan. Those of us who have argued that we should be respectfully turn back such orders are asserting that, instead, we should only agree to do what we can do reasonably well and for which there is research support: Educate the court about the psychological risks (including risks for child-harm and lethality) and benefits associated with each parent or with various plans so that the ultimate decision – a decision to be made by the Judge – can most closely map the child’s needs. Such an approach allows us to avoid engaging in the pretense that a social science can discern what is ultimately a socio-moral, rather than a scientific judgement.
Positive Corrective Culture, Not Banishment
The Hevesi bill rightly sounds an alarm about the practice of empowering FMHPs to make recommendations about what physical and legal custody plans should be chosen. The ethical and empirical reasons for stopping this practice have been thoroughly covered elsewhere. However, wholly banishing forensic professionals from offering important information about families to courts struggling to make difficult decisions is throwing the baby out without the bathwater. It is like saying that, because attorneys for children, domestic violence advocates, or pediatricians occasionally practice poorly or make consequential mistakes, we should eliminate legal representation, advocacy, or health care. Such extreme reactions also leave out of the analysis information about the families for whom a competently done forensic assessment improved or even saved lives, offered clarifying insight about parental conflict, or made clear the pressing child-needs that should be attended to in order to avoid physical or psychological damage.
Tragedy-based legislation like the Hevesi and Harkham bills is deep on emotional effect (given the power of the speculative implication that children are regularly being harmed by forensic involvement) and shallow with respect to a holistic analysis of real risks and benefits. Often based on small samples of tragic events, such legislation can lead to extreme overreactions (Recall the justifiable outrage about 9/11 that led to government policy condoning torture). The individual tragic case should be instructive, meaningful, cautionary, but can also be potentially misleading and only marginally helpful for policy formation that affects court-involved families as a population.
The useful concept of “positive error culture,” (Munro, 2019) (referred to here as PEC) asserts that the reality of hurtful or tragic mistakes must certainly be acknowledged and taken very, very seriously. While Munro was applying the concept to errors by child protective caseworkers, hopefully we can agree that FMHPs, lawyers, advocates, and judges are all vulnerable to making such errors in custody/access matters. While most professionals have guardrails they should be honoring (FMHPs have their ethics, state regulations, and guidelines, attorneys have the CPLR and ethical requirements, Judges have case law, OCA oversight, etc.), there may always be occasional decisions made about families that precede and possibly cause poor outcomes or immense human loss.
PEC emphasizes that, rather than banishing professions or services, structures should be established for rapid case-review, analysis, and learning. Rather than a culture of professional fear, blaming, and muzzling, we should have a culture of critical review, learning, and adjustment. Websdale (2003, p 27) notes the following in his work on post-mortem reviews in domestic violence cases: “Like the reviews conducted after an airplane crash, a fatality review helps determine what went wrong and what could have been done differently to prevent the tragedy.” While flying is still far safer than driving, when anyone dies in a plane crash the public understandably expects a full investigation of what went wrong in that very uncommon incident. A PEC approach would embrace the reality that all family court professionals are operating in difficult decision-making contexts riddled with uncertainly and incomplete information — That all court-related professionals can get it wrong and make decisions that unintentionally (or via unprofessional or incompetent behavior) lead to child-harm. And a PEC approach does not mean that when professional discipline is warranted, it should be avoided. Whether or not an error or act of unprofessional behavior warrants consequences is still up to the relevant discipline’s oversite bodies. Learning from the error or tragedy can still be fostered.
Unfortunately, PEC, at this point, is just a suggested alternative attitude with no structure to hold or foster it. Many of us operate in professional silos and our case-materials are highly protected by the court which, in effect means that when occasionally what we do is called into question, those scrutinizing our work (e,g, licensing boards) cannot get at our reports to see if the criticism is warranted (and court rules restricting distribution of our work products can mean we cannot defend ourselves with evidence that we acted appropriately). In addition, as forensic evaluators, there are many barriers to getting together and openly and fully analyzing what we did in real cases with colleagues, and we are often (except when tragedy strikes) completely unaware of the outcomes for families we evaluated. However, exploring the possibilities of facilitating a positive error culture remains a worthwhile pursuit for the public and our profession. A good start might be legislation that empowers the oversight committees in the four NYS Judicial Departments to respond to tragedies during or following custody litigation with a comprehensive review of choices made by all professionals involved, and with full access to the entire court file.
Final Thoughts
A few thoughts about adjustments to our family law system that hopefully would meet the twin goals of minimizing risks for children while maximizing access by the courts to reliable and valid guidance:
- The Hevesi/Harckham bills should never come to a vote. They toss the baby with the bathwater, basing their calls for banishment/moratorium on speculation about frequent perils for children from evaluations – speculation that has never been proven – and entirely disregarding the protective benefits of evaluations for children.
- Judges should stop requiring evaluators to make specific recommendations regarding custody, access, and decision-making – when they do so they require us to do something beyond both the state of our knowledge and our proscribed role. Evaluators should only be asked to assess what they have the ability to assess: Parenting strengths and weaknesses, risks and benefits of various plans, child needs, etc. A majority of judges (Axelson & Gentile, 2024) and some scholars (E.g., Bala, 2005) support the inclusion of recommendations. However, to date, no research has shown that we can do so in a reliable and valid manner (See discussion in Braunstein & Wittmann, 2023).
- Forensic evaluations are an important tool in the judicial/advocacy toolbox and should continue to be ordered for cases where psychological input will help clarify best interests’ questions. They should be ordered with clear, proper, and appropriately constrained questions for the evaluator. For example, many judges will ask that the evaluation address very specific issues like intimate partner violence, substance abuse, resist/refuse concerns, parental communication, etc.
- New York State should amend the statute (Bill AO2375B) requiring 24+hrs of training to require 40-50 hours of training in the larger universe of topics central to forensic work, training that would yield NYS certification as a family forensic professional. A model similar to those in California and Ohio should be considered, requiring training in the basics of NYS family law, professional guidelines, domestic violence, child abuse, resist-refuse problems, substance abuse, parenting research, relocation, non-traditional families, stepfamily dynamics, biases, divorce-related developmental needs, report-writing, testimony basics, etc. The current training constitutes excellent DV education but is nothing close to adequately broad, general forensic preparation).
- New York State should incorporate into law or regulation basic requirements for any custody/access forensic assessment, based on the AFCC and APA Guidelines and including requirements for universal DV screening in all such cases (and lethality assessment when there is any history of DV or coercive control).
- The four statewide Mental Health Professionals Oversight Committees should explore ways to create a PEC venue where evaluators, lawyers, and advocates can safely come together to do post-hoc, confidential analyses of cases where the work of family law professionals appears correlated with child harm. They should, in instances of complaints, be empowered to access the work products of FMHPs to facilitate both scrutiny and the evaluator’s ability to defend their actions.
- AFCC-NY should consider creating a peer-support consultation service statewide where evaluators can get guidance about this difficult, important area of practice.
Jeffrey P. Wittmann, Ph.D. is a licensed psychologist and trial consultant whose practice concentrates on trial support for attorneys in custody and access matters and on forensic peer reviews. He serves as a consultant for major law firms nationally, has served on multiple editorial boards and AFCC Task Forces, and is the author of Custody Chaos, Personal Peace (Perigee, 2001). Together with Timothy Tippins, Esq., he is the author of “Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance,” an award‐winning article published in the Family Court Review in 2005. His most recent book is entitled Evaluating Evaluations: An Attorney’s Handbook for Analyzing Child Custody Reports (2nd Edition, MatLaw, 2024).
References
American Psychological Association (2022). APA guidelines for child custody evaluations in family law proceedings. Retrieved from https://www.apa.org/practice/guidelines/child-custody-evaluations.pdf
Association of Family and Conciliation Courts (2022). Guidelines for parenting plan evaluations in family law cases. Retrieved from: https://www.afccnet.org/Portals/0/Committees/2022%20Parenting%20Plan%20Guidelines.pdf?ver=pL0FdZapJmsbfUvQ6zzN-A%3D%3D
Axelson, T., and Gentile, J. (2024). Are Child Custody Evaluations Beneficial to Family Law Judges? A Study from the Judicial Perspective. Family Court Review, 62, 194-211.
Bala, N. (2005). Tippins and Wittmann asked the wrong question: Evaluators may not be “experts,” but they can express best interests opinions. Family Court Review, 43(4), 554-562.
Braunstein, L. J., & Wittmann, J. P. (2023). To recommend or not recommend: That is
still the question. Family Court Review, 1–19. https://doi.org/10.1111/fcre.12751
Emery, R., Otto, R., & O’Donohue, W. (2005). A critical assessment of child custody evaluations: Limited science and a flawed system. Psychological Science in the Public Interest. Vol 6 (1), p 24.
Melton, G., Petrila, J., Poythress, N., Slobogin, C. (2007). Psychological evaluations for the courts, Third Ed. New York: Guilford Press.
Munro, E. (2019). Decision-making under uncertainty in child protection: Creating a just and learning culture. Child & Family Social Work, 24, 123-130.
Neal, T., Martire, K., Johan, J., Mathers, E., & Otto, R. (2022). Annual Review of Law and Social Science, 18:17.1-17.24.
O’Donohue W., & Bradley, A.R., (1999) Conceptual and empirical issues in child custody evaluations. Clinical Psychology: Science and Practice, Vol. 6, p. 320.
Tippins, T. M., & Wittmann, J. P. (2005). Empirical and ethical problems with custody recommendations: A call for clinical humility and judicial vigilance. Family Court Review, 43, 193-222.Websdale, N. (2003). Reviewing domestic violence deaths. NIJ Journal, 250, 27-31.
Wittmann, J.J.P. (1985). Child advocacy and the scientific model in family court: A theory for pre-trial self-assessment. The Journal of Psychiatry and Law, 13(1), 61-82.