PsychLaw.net expounds the use of a three-step process to voir dire a proffered expert in proceedings involving PA. The following is taken from the 2014 Colorado custody case, D.T. v. N.O. Although the court refused to enforce its evidentiary rules, a voir dire was conducted, which revealed the expert was unqualified and the proposed opinion was unreliable.
1.Test the proffered expert’s knowledge of relevant literature.
In D.T. v. N.O., Father’s legal team began its voir dire by cross-examining the proffered expert’s knowledge of the data of the discipline by inquiring into the expert’s knowledge of the most well-known researchers and publications on the subject of PA, including:
(1) the Family and Children’s Evaluation Team in Colorado and their published research examining 600 cases between 1975 and 1995[1]
(2) the Family and Children’s Evaluation Team follow-up study published in the peer reviewed American Journal of Forensic Psychology describing additional information about the evaluation team’s PA findings[2]
(3) the American Bar Association study, Children Held Hostage (1991)[3]
(4) the recent revision of the classic Children Held Hostage (2013)[4]
(5) the peer reviewed follow-up study child psychiatrist Richard Gardner conducted regarding his early work on the concept of PA[5]
(6) the recent book, Parental Alienation: The Handbook for Mental Health and Legal Professionals (2013)[6], and
(7) Dunne and Hedrick’s early work on PA published in the peer-reviewed Journal of Divorce and Remarriage.[7]
The expert, who was literally sitting in Colorado where some of this seminal research had been done, had no knowledge of any of these. Moreover, the expert was unable to support her opinion that PA was merely a concept designed to help abusive men take children away from protective mothers and the witness had no knowledge of texts written by women who had been victimized by fathers who manipulated children away from them, including:
(8) books by Jill Egizii[8], Barbara Dircksen[9], Jennifer McBride[10], and television personality Pamela Richardson[11].
Similarly,
(9) The expert could not defend her claim that judges did not support the concept of one parent alienating a child from another.
She also was unaware of
(10) Judge Michelle Lowrance’s work-book with Leland Grove, Illinois, Alderman Jill Egizii[12]
(11) Toxic Divorce: A Workbook for Alienated Parents by Canadian psychologist Kathleen Reay[13]
(12) the first International Conference of Parental Alienation held in Frankfurt, Germany, in October 2002[14]
(13) the 47th annual conference of the Association of Family and Conciliation Courts (held in Denver, Colorado), Traversing the Trail of Alienation[15]
(14) the 500 U.S. and Canadian cases from 1985 through the date of the examination where PA was essential to the outcome[16]
(15) the peer-reviewed research of scientist Joan Kelly on the scientific basis of the educational program called Family Bridges even though that was what the Father in the case was asking for.[17]
We at PsychLaw.net believe that this lack of knowledge should have been sufficient to disqualify this proposed expert.
- Reveal the proffered expert’s inadequacies from prior court appearances.
In D.T. v N.O., the father’s team then examined earlier court appearances that the expert had attempted, and how the expert was described in court opinions. Before doing so, the cross-examiner elicited from the proffered expert that she had “maybe once” been excluded from a proceeding, but the witness dissembled that she couldn’t “recall.” Then the witness identified two cases in which she described the reasons for her exclusion as unrelated to her qualifications or credibility[18]. She also directly testified: “Every other time … my methodology has been accepted.”[19] Voir dire revealed that this was not accurate.
On voir dire, Father’s team showed that the expert had been excluded in a Maryland case where the child had referred to the expert as “mommy’s friend,” and the court had found that the expert was actually a trigger for the child to make allegations. The Maryland court was also concerned that despite the fact that the expert relied solely on Mother and documents for her “research,” the expert opined that the child was abused and the father was the abuser.[20] Not only did this demonstrate bias, but this conduct also suggested violations of several other ethical principles and guidelines.[21]
When confronted with a New Jersey case in which expert was excluded[22], the expert said it was only because: (1) the tape recorder she used would turn off periodically and (2) the trial judge threatened to put her in jail if she gave thorough answers.[23] On voir dire it was revealed that the court entered “painstaking” findings that included that this expert had engaged in “a deliberate attempt to circumvent the scientific requirements” and was not an “open, neutral and objective” forensic psychologist.[24] During voir dire, the examining attorney inquired whether the expert’s opinion seemed to run afoul of ethical duties of accuracy and honesty in both cases. Voir dire further inquired into whether the expert may also have violated the APA’s proscription against giving opinions in areas where the expert had insufficient information and knowledge.
Other cases by this expert were also brought up in o, which together established a pattern of providing opinions far beyond the scope of the information reviewed—which was precisely what the father’s team attempted to show in D.T. v. N.O.[25] Between the pattern of providing ill-informed opinions and the expert’s lack of candor in the present case, the expert should have been excluded.
3.Test the proffered expert’s knowledge of the facts of the present case.
The expert, who was supposed to be providing an opinion on the Family Bridges educational program for reconciling alienated children and their target parents, could not identify any foundation, treatise, peer-reviewed article, book chapter, or appellate report to support her opinion concerning the program.[26] This lack of knowledge of the precise program at issue rendered the expert’s opinion unhelpful, and should have been enough to exclude them.
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[1] Transcript of Hearing at 219-20, D.T. v. N.O., No. 10 CR 13 (Gunnison Co., Colo. Dist. Ct. Jan. 27, 2014) [hereinafter Tr. (1/27/14)]. Leona Kopetski, Identifying Cases of Parental Alienation Syndrome Part 1, 27 Colo. Law. (2) 65-68 (1998). Leona Kopetski, Identifying Cases of Parental Alienation Syndrome Part 2, 27 Colo. Law. (3) 61-64 (1998).
[2] Tr. (1/27/14), supra note 49, at 220. Deirdre Rand, Randy Rand & Leona Kopetski, The Spectrum of Parental Alienation Syndrome, 23 Am. J. of Forensic Psychol., no. 1, 2005, 15-43.
[3] Tr. (1/27/14), supra note 49, at 221, 229. Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Dealing with Programmed and Brainwashed Children (1991)
[4] Tr. (1/27/14), supra note 49, at 221. (After testifying “No, I am not” familiar with the 2013 revision, Silberg testified, “I would like to see it.”) Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Identifying Brainwashed Children, Presenting a Case, and Crafting Solutions (2d ed. 2013).
[5] Even though the proposed witness Dr. Joyanna Silberg testified to being unfamiliar with this publication, Silberg expressly testified that Gardner “never did any research.” Tr. (1/27/14) at 221-22. Gardner was a highly-regarded researcher, and his publications are numerous. See Richard A. Gardner, Should Courts Order PAS Children to Visit/Reside with the Alienated Parent? A Follow-Up Study, 19 Am. J. of Forensic Psychol., no. 3, 2001, 61-106. Dr. Gardner and his research in high-conflict cases was credited more than any other single author in the American Psychological Association, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychol. 677, 677-680 (1994). Gardner’s work on parental alienation was also cited more than any other single researcher in Clawar and Rivlin’s 2013 revision. Clawar & Rivlin, supra note 52.
[6] Tr. (1/27/14), supra note 49, at 222, 224. Parental Alienation: The Handbook for Mental Health and Legal Professionals (Demosthenes Lorandos et al. eds., 2013).
[7] Tr. (1/27/14), supra note 49, at 229. John Dunne & Marsha Hedrick, The Parental Alienation Syndrome: An Analysis of Sixteen Selected Cases, 21 J. of Divorce and Remarriage 21-38 (1994)
[8] Tr. (1/27/14), supra note 49, at 233. Jill Egizii, The Look of Love (2010).
[9] Tr. (1/27/14), supra note 49, at 233-34. Barbara Dircksen, Parental Alienation is Abuse: One Mother’s Nightmare and Her Fight for Justice (2012).
[10] Tr. (1/27/14), supra note 49, at 234. Jennifer McBride, Childless Parent: “Snapshots” of Parental Alienation (2012).
[11] Tr. (1/27/14), supra note 49, at 234. Pamela Richardson, A Kidnapped Mind: A Mother’s Heartbreaking Memoir of Parental Alienation (2006).
[12] Tr. (1/27/14), supra note 49, at 234. Jill Egizii & Michele Lowrance, Parental Alienation 911 Work Book (2012).
[13] Tr. (1/27/14), supra note 49, at 235-36. Kathleen Reay, Toxic Divorce: A Handbook for Alienated Parents (2011).
[14] Tr. (1/27/14), supra note 49, at 236. Wilfrid von Boch-Galhau et al., The Parental Alienation Syndrome: An Interdisciplinary Challenge for Professionals Involved with Divorce (unpublished) (Frankfurt, Germany (Main) October 18-19, 2002).
[15] Traversing the Trail of Alienation: 47th Annual Conference, Denver, Colorado, Association of Family and Conciliation Courts http://www.afccnet.org/Portals/0/PublicDocuments/2010_january.pdf (last visited Mar. 9, 2019).
[16] Tr. (1/27/14), supra note 49, at 247.
[17] Tr. (1/27/14), supra note 49, at 239. Joan B. Kelly, Commentary on “Family Bridges: Using insights from Social Science to Reconnect Parents and Alienated Children” (Warshak, 2010), 48 Fam. Ct. Rev. 81-90 (2010).
[18] Tr. (1/27/14), supra note 49, at 200-01.
[19] Transcript of Hearing at 34, D.T. v. N.O., No. 10 CR 13 (Gunnison Co., Colo. Dist. Ct. Jan. 28, 2014) [hereinafter Tr. (1/28/14)].
[20] Volodarsky v. Tarachanskaya, 916 A.2d 991, 997 (Md. 2007) (“Her disclosures to Ms. Dizard only came after [Silberg’s] name was introduced… whom Greta characterized as ‘mommy’s friend.’”). Note, too, that Dr. Silberg wrote in a book, that a psychologist or other mental health expert “cannot testify about people you have not met. . .” Joyanna L. Silberg, The Child Survivor: Healing Developmental Trauma and Dissociation 216 (New York, Routledge 2013). See also Ethical Principles & Standards, supra note 47, at 9.01. Specialty Guidelines, supra note 48, at 9.03. Maryland Department of Health and Mental Hygiene Board of Examiners of Psychologists, Maryland Code of Ethics, Child Custody Evaluation 10.36.09.05(C) (2) [hereinafter COMAR Child Custody Evaluation Code] (identifying that psychologists should not “[r]ender an opinion concerning the psychological functioning or custodial fitness of a individual involved in the custody proceeding who has not been personally evaluated by the psychologist during the current child custody evaluation.”) (emphasis added).
[21] See Ethical Principles & Standards, supra note 47, at 9.01; Specialty Guidelines, supra note 48, at 9.03; COMAR Child Custody Evaluation Code, supra note 68.
[22] K.M. v. S.M.M., No. A-0135-09Tf, 2011 WL 3176534 (N.J. Super. Ct. App. Jul. 28, 2011).
[23] Tr. (1/28/14), supra note 67, at 34, 78-79.
[24] Id. at 58, 63-64.
[25] Doe v. Roe, No. NNHFA094037658, 2012 WL 2899327 (Feb. 2, 2012); L.S. v. C.T., 2009 SD 2, 760 N.W.2d 145 (S.D. 2009).
[26] Tr. (1/27/14), supra note 49, at 198.