Month: February 2022

After counsel’s researcher interviews Richard for many hours, Richard mentions as an aside that he is concerned about Jane because she was coping during the last months of the marriage by drinking more.  The researcher points out in the next defense team meeting that counsel must look into Jane’s drinking.  Counsel should ask the defense team expert to communicate with Richard’s therapist and explore Richard’s denial and whether Richard and Jane have been in a “negotiated maladjustment contract.”   This is a concept that grew out of marital therapy research.  It pre-dates the notion of “co-dependence” and holds that in return for behaviors that meet the compelling needs of both partners, one or both of them perform behaviors that are self-injurious, deviant, or maladaptive (Carson, 1969; Gehrke & Moxom, 1969).  Additionally, Richard’s therapist should be asked to deal with Richard’s lack of efficient thinking, inability to focus, anxiety, and multiplicity of storylines.  The goal of pushing Richard’s therapy is to confront his denial, prepare him for two – maybe three – trials and help him be more effective in developing a plan for Adrian.  As part of his recovery from this temporary disaster, Richard should be encouraged to go into “research mode.”  Counsel should encourage him to begin by studying the famous abuse cases of the ‘80’s and ‘90’s – McMartin, Kern County, Kelly Michaels, and Wenatchee. Richard should watch Sean Penn’s documentary Witch Hunt and learn how 

the manipulation of the children in the Kern County, California, case was done (Penn, 2008).

In the family case, Jane and her attorney are insisting upon the exclusive use of the marital home. Jane and Steven, one of the therapists at Richard’s clinic, have entered into an agreement to keep the clinic operating without Richard. Counsel’s investigator and researcher should be charged with looking into whether Jane and Steven might have a deeper relationship.  As the researcher works on the chronology with Richard and the defense team expert, they realize that because Richard was in school for the last four years and working part time, Richard was the one around Adrian the most. Jane left for work at 7:30 AM, and was not home until at least 4:30 PM – sometimes not until 7:30 or 8:00 PM.  This information should also go to Richard’s therapist, to aid in pushing on Richard’s denial.

Having been ordered to mandatory mediation, Jane and Richard file their narratives for the custody mediator. Jane’s narrative describes Jane as the primary caregiver for Adrian. Jane claims that she is the best candidate for the role of single parent for the child, and that she is more responsible. Jane accuses Richard of being a mama’s boy, dependent upon his parents to prop him up and extricate him from any messes.  To counter this expected gambit, counsel has been vigorously conducting discovery in the family case, and the private investigator has uncovered several disciplinary actions against Jane at the high school where she teaches. These disciplinary actions were for tardiness, for absenteeism, and suspicion of intoxication. Richard is shocked – he had no inkling of the depths of Jane’s problem.  Counsel’s private investigator finds that Jane’s relationship with Steven, the clinic therapist, has developed. Jane has begun attending support groups for “mistreated women” with Steven’s sister Janice, a militant advocate for abused women.  Jane complains to Janice about the “inconclusive” finding from Adrian’s pediatrician that in three years of caring for Adrian, she’s never seen indications of abuse.  Steven’s sister Janice refers Jane to a physician who is more oriented to their point of view.  This physician has developed a reputation in the state for finding indications of abuse in little girls and boys.  In the physical exam, Jane tells the physician that Adrian has often complained of being hurt by Daddy.  The physician examines Jane’s  photographs of Adrian’s facial injuries and repeatedly asks the child how many times Daddy has hurt her. One should remember what the philosopher Goethe taught: “We look for what we know. We find what we look for.”  In next week’s blog we will be concluding the discussion on this topic.

Carson, R. (1969). Interaction concepts of personality. Chicago: Aldine. 

Gehrke, S. and Moxom, J. (1969) Diagnostic Classifications and Treatment  

Techniques in Marriage Counseling. Family Process, 1(2), 253-264. 

Penn, S. (Producer) (2008). Witch hunt. 

The second strategy is to build awareness in counsel’s office among members of the defense team of the process of parental alienation (PA).  

The defense team must organize all data to explicate PA. The diagnostic criteria include a campaign of denigration against the target parent by the child; frivolous rationalizations by the child for their criticism of the target parent; a lack of ambivalence in the child over their description and treatment of the target parent; a manifestation referred to as “the independent-thinker phenomenon” by the child where by she says her denigration is all her own idea; reflexive support by the child of the preferred parent against the target parent; an absence of guilt in the child over their exploitation and mistreatment of the target parent; a demonstration of borrowed scenarios from the alienating parent by the child; a notable spread of animosity toward the target parent’s extended family by the child.  These are all described in greater detail in Chapter One of this text. 

Fidler and Bala (2010a) reported that clinical observations, case reviews and qualitative as well as empirical studies indicated that alienated children may exhibit: 

• poor reality testing; 
• illogical cognitive operations; 
• simplistic and rigid information processing; 
• inaccurate or distorted interpersonal perceptions; 
• disturbed and compromised interpersonal functioning; 
• self-hatred; 
• low self esteem or inflated self-esteem or omnipotence; 
• pseudo-maturity; 
• gender-identity problems; 
• poor differentiation of self (enmeshment); 
• aggression and conduct disorders; 
• disregard for social norms and authority; 
• poor impulse control; 
• emotional constriction, passivity, or dependency; and 
• lack of remorse or guilt.  

All of these characteristics should be kept in mind and wherever possible, proofs and witness charts oriented to demonstrating their occurrence in Adrian.

Next, counsel must visit Richard in jail and get his signature on the retainer agreement. From past experience, counsel is aware that many clients cannot handle the pressures of cases like these (much less on all fronts, as Richard is facing).  Counsel must make sure that Richard does not cave to the pressure and begin “explaining” himself to willing listeners. Clearly Richard is desperate to explain the narrowly averted auto accident, the panicked stop, and the origin of Adrian’s black eye.  He is abject in his self-recrimination because Adrian’s seatbelt was not properly fastened.  Counsel must take the time to listen to Richard and to be compassionate, because his entire life is falling apart and this is not conducive to sane behavior.  Counsel must listen carefully to Richard’s recitation of Adrian’s colliding with the rear passenger door post but remind him that jail is not the place for conversation.  He must keep his mouth shut. He may not talk to anyone other than counsel because there may be prosecution “plants” in jail. Remind him that conversations are often recorded and of course there may be defendants in jail who will relate conversations in hopes of a deal in their own case.  Counsel must explain to Richard that the discovery available in the family law case in the form of interrogatories, requests for production of documents, examinations, and depositions will save his life.  The family case discovery must be utilized in this fashion and the criminal case won.  The criminal case must be counsel’s most important priority.  

Counsel should begin legal research with the excellent treatise, Right to Present a Defense. This is an ongoing web document continually updated by National Association of Criminal Defense Lawyers contributor Mark J. Mahoney (2009).  While it is aimed at criminal defense, the relevancy arguments concerning the right to tell one’s own story is of great value in custody or dependency cases as well. Counsel should be mindful that the court might not be aware of state and sister-state precedent on salient issues.  Counsel must think through relevant legal issues, prepare points and authorities to use if need be at trial and set one’s sights on diligently making a record for review. To aid in this endeavor, counsel should download and then conform to their state-specific precedent motions available from Thomson-Reuters WEST’s two volume Cross Examining Experts in the Behavioral Sciences (Campbell & Lorandos, 2001, updated annually). Special attention should be spent on Daubert or Frye challenges, taint motions asserting that a child’s memory is compromised (therefore she cannot testify from “personal knowledge”), and motions to defeat “outcry” (the always questionable hearsay testimony from adults who have allegedly heard a child’s complaints).  Again, these are available to counsel from PsychLaw.net, the NACDL and The Innocence Team in California.  After bond, counsel should demand a preliminary examination and file detailed motions for discovery in both the family and criminal cases. All of the immediate discovery battles, subpoenas, and depositions must be diligently fought in the family case, as most jurisdictions do not allow depositions in criminal cases.

Counsel must immediately contact the Board of Social Work to let them know that Richard has representation.  Counsel must research and push “prior restraint” with the Social Work Board.  As Richard is innocent until proven guilty, the Social Work Board should not have the mandate to restrain Richard from working until after adjudication.  If they are reluctant to negotiate, counsel should file against the Social Work Board in Federal Court, as Richard’s license and ability to work is a property right.  If possible, counsel should negotiate that Richard at least be allowed to see adult patients in a supervised setting.  Counsel should use the defense team expert and her connections to help Richard find a clinic in which he can get back to work immediately. For a continuation of this topic please come back next week where we will further dive into this discussion. 

Campbell, T. W. & Lorandos, D. (2001) Cross Examining Experts in the 

Behavioral Sciences, Egan, Minnesota, West Group – Two Volumes – annual updates ~ April 2011 

Fidler, B. J. & Bala, N. (2010a). Children Resisting Post-Separation Contact with a Parent: Concepts, Controversies, and Conundrums. Family Court Review, 48(1), 10-47. 

Maloney, M. J. (2009). The right to present a defense. Retrieved from http://www.harringtonmahoney.com/documents/Rtpad2009 v1.pdf