Three Judges Saunter Sequentially Before the Bar: A Retired Judge’s Humble Reflections Responsive to the Fall 2024 Article penned by Retired Judge Matthew Cooper (“Forensics: Costly and Difficult, But Often Necessary and Almost Always Helpful”) and the Fall 2024 juxtaposing Article penned by Retired Judge Carol MacKenzie (“Damned if You Do and Damned if You Don’t”)
The Vantage of this Article: How to Maximize the Benefits proffered in Judge Cooper’s “full-throated defense of a court’s use of forensic evaluations,” and Mitigate the Pitfalls articulated by Judge MacKenzie.
-Honorable Jane Pearl (Ret.)
Ensuring the integrity and competence of the forensic evaluation process, and its generated report, optimally begin at a conference* in supreme or family court. In unresolved matters, gleaning what is disputed regarding each parent’s care and responsibility (mistitled custody in our court forms) for their child/ren, the parents’ decision-making deltas, and the parenting plans being or not being followed is germane to the court’s cogently ordering an evaluation. Identifying categories of forensic concern that may require and/or benefit from expert assessment can importantly inform the forensic order of appointment.**
Targeted issue-focused evaluations are completed sooner, cost less, and grant greater personal privacy to parents and children. Comprehensive assessments take a great deal longer to complete and are significantly more expensive, as well as requiring in-depth clinical intrusion to gather and analyze the data regarding family strengths and resiliencies, and risks posed to the physical and emotional safety and well-being of the parties and children. This may be warranted where there are complex hybrid allegations and concerns.
Assessment of the presence of alleged physical and emotional family violence is the statutory factor the court must consider in a contested best interests case. Forensic evaluators are presently required to complete state-mandated training as a condition of appointment. A focused family violence evaluation can elucidate risks, including coercive control and lethality.
Assessment of alleged substance use disorder, including alcohol misuse, may be achieved in a focused substance use evaluation unless there are comorbid concerns raised about emotional dysregulation warranting further diagnostic mental health assessment.
Assessment of a subject child’s (or parent’s) posited neurodivergence considers neurodevelopment, learning, emotional behavior, communication and socialization, requiring thoughtful focused evaluation.
Assessment of a parent’s developmental challenges may be conducted expeditiously if not pejoratively characterized.
Assessment of a parent’s mental health is an evaluation which may be completed expeditiously.
Assessment of a child’s mental health is an evaluation which may be completed expeditiously, acknowledging limitations in certain childhood diagnoses.
Focused assessments can provide vital information to parents and children and their attorneys without inevitably ratcheting up family disputes. Focused assessments would be fruitful to utilize in many family law cases, the dissemination of which may facilitate a timely and respectful resolution. Targeted assessments can perhaps be ordered to be completed within 60 days.
We must acknowledge in 2026 the harsh reality of a dearth of forensic mental health professionals available to conduct comprehensive forensic evaluations in New York. At the same time as legislation to pause, suspend, or end forensic appointments is in committee, Rules have been promulgated by the Office of Court Administration that will impact the appointment of forensic mental health professionals to conduct evaluations throughout New York State. These Rules also require appointment orders to address evaluator conflict of interest, and mandate judicial oversight regarding equalized access of self-represented parties, attorneys for the parties and the AFC to forensic evaluation reports and underlying materials, and litigant access to register concern regarding an appointed forensic evaluator. There will be oversight committees in each of our four judicial departments.
In addition to focused assessments, court-directed parent education at the very beginning of a child-related family law filing can provide parents with vital interdisciplinary tools to enable one or both parents to place their child/ren’s developmental needs and emotional equanimity in a place of consistent greater importance than their disdain or raw hatred towards each other.
When parent education, or parent education in conjunction with a focused assessment has not engendered settlement resolution or generated sufficient clinical evidence to bring before the court, a comprehensive forensic evaluation may be ordered by the court.
A requisite precursor to a comprehensive forensic appointment order perhaps might be a completion of discovery in child-related family disputes, which as Judge MacKenzie asserted, should be permitted throughout New York State. Such discovery would clarify the forensic issues requiring data gathering and analysis, and clinically substantiable conclusions. Financially eligible parents are entitled to the assignment of an attorney at no cost in family court, and in supreme court for the child-related portion of a divorce case, which can encompass discovery.
Comprehensive evaluations by forensic mental health professionals provide an invaluable tool in child-related family law disputes when they can bring historical coherence to the stories and experiences of parents and children struggling not to have family dissolution constitute their only psychological note. Evaluations conducted and reports rendered can inform the court regarding parental strengths and vulnerabilities, child temperament and experience of transitions between two households, parent-child and sibling relationships, and benefits and risks of parenting plan options, including for decision-making and residential care. This requires sophisticated forensic expertise, patient diligence, guardrails for bias protection, and clinical humility to herald what cannot be opined.
In addition to comprehensive evaluations by forensic mental health professionals, children may be assigned an attorney, assisted by a social worker, to advocate on behalf of their child client(s). Such representation on behalf of a child’s voice may assist in settlement as well as bringing relevant competent evidence before the court.
Judges also may see and hear from the child/ren in an in camera interview in the presence of their attorney with questions from parents’ counsel considered at the judge’s discretion.
Imagine if judges, attorneys for children, and forensic mental health professionals had access to post-court outcomes. We might improve our service to children and families by learning how lives may have been iatrogenically protected and/or harmed by the family law processes, including forensic evaluations, in our cases.
*AFCC-NY may assist in training and in the development of resources to assist judges, referees, and court attorneys in garnering forensically relevant information at a conference
**This may be accomplished between a conference and the next court date if the parties have legal counsel or, if self-represented, confidentially has stipulated to the court that he/she experiences a safe and level negotiation playing field.
Hon. Jane Pearl (Ret.) represents parents and children in matrimonial and family law matters. She also serves as a parent coordinator, mediator, arbitrator, and trial consultant.
As a Ph.D. psychologist, Judge Pearl represents her clients from an interdisciplinary legal and clinical perspective. Family law issues embody great complexity and, at times, are emotionally fraught and baffling. Judge Pearl provides sustained personal attention to clients as they navigate new and unfamiliar personal and familial chapters in their lives.
Her mission is to help families resolve disputes amicably when feasible, and pivot to zealous advocacy when needed. Judge Pearl served for nearly 22 years as a judge of the New York City Family Court, presiding in New York, Bronx, and Kings counties. Her leadership roles included Supervising Judge of Kings and Richmond Counties and New York County Family Courts. Prior to that she served as a referee and a child and spousal support magistrate.
Before entering the legal field, Judge Pearl had an extensive career in psychology. She worked as a clinician and forensic consultant in Chicago and held academic roles at the University of Illinois Department of Preventive Medicine and School of Public Health, and at Tel Aviv University’s Faculty of Medical and Health Sciences in Israel.