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Legal Staff News & Views Letter Standards for Expert Testimony on
Custody... Mr. Gitlin reviews two such cases, In Re the Marriage of Divelbiss, 308 Ill.App.3d 198, 241 Ill.Dec.514, 719 N.E.2d 375,(2nd Dist.) and the 1988 case, In re the Marriage of Hazard, 167 Ill.App.3d 61, 117 Ill.Dec.770, 520 N.E.2d 1121 (1st Dist.). In one case the testimony and report were struck but not in the other. Both cases involve the same issue: The admissibility of a mental health expert's testimony regarding child custody being dependent on the testimony's conformity with the standards of the witness' profession. Among the host of mental health professional who testified in the Hazard case was Dr. Ner Littner, a board-certified physiatrist who had prepared a report based on his evaluation of the parties and the children. Littner testified on behalf of the father. Littner first saw the father when he asked that the doctor evaluate the children regarding whether they needed psychotherapy. Littner never interviewed the children. He interviewed bother parties and reviewed the reports of other mental health professionals involved in the case. At the urging of the mother, Littner's report was struck from evidence and excluded as testimony and the 1st District Appellate Court affirmed because "it was based on evidence which is considered unreliable according to standards of the psychiatric profession," Citing Wilson v. Clark, 84 Ill.2d 186, 417 N.E.2d 1322 (1981). The appellate opinion goes on to state that the Illinois Supreme Court adopted Federal Rule 703, which permits an expert to submit his opinion on the bases of facts not in evidence so long as the facts are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." The opinion concludes that since Littner "failed to follow the standards or recommendations of the Board of Psychiatry in forming his opinions regarding custody... the trial court properly acted in striking from evidence the September 1986 report." In Divelbiss case was decided by the 2d district ten years after Hazard. The trial court in Divelbiss admitted the testimony of Dr. Robert Shapiro, a clinical psychologist. The mother objected to Shapiro's testimony because he did not render an expert opinion with the standards of his profession. The mother relied on Hazard. The Appellate Court, however, affirmed the trial court's admission of expert testimony because Shapiro testified that he followed the "conciliation guidelines" of the local court rules. (Eighteenth Judicial Circuit Court Rules "Evaluation Program" will follow). Hazard is distinguishable from the circumstances of the Divelbiss case. The trial court appointed Dr. Shapiro, a psychologist, to conduct a conciliation process in accordance with the conciliation guidelines of the 18th Judicial Circuit. Dr. Shapiro interviewed Richard, Rebecca and S.D. numerous times during the year and a half he was involved with them in the conciliation process. Dr. Shapiro testified that he followed the conciliation guidelines in conducting his examination and in arriving at his opinion regarding custody. Under these circumstances, the court held that the trial court properly denied Rebecca's motion to strike Dr. Shapiro's testimony. Even so, it is suggested that both Hazard and Divelbiss missed the mark in their focus on the professional standards and the admissibility of evidence. The standards of the American Psychiatric Association and the American Psychological Association for child custody evaluations are not evidentiary rules. The failure of a custody report, or custody testimony, to conform to standards of the profession should go to the weight given to the testimony - not to its admissibility. Admissibility should stand on its own merits. Hazard was possibly saying that the Federal Rule 703 permits an expert to give his opinion on the basis of facts not in evidence as long as the facts are "of a type reasonably relied upon by experts in a particular field," and thus if the professional witness does not confirm his testimony to the standards of the profession, the testimony is not based on facts reasonably relied on by experts in the field. The likelihood from a reading of Hazard, however, is that 1st District affirmed striking Littner's testimony because it did not follow the standards of the Board of Psychiatry. Divelbiss states that its does not matter that the expert failed to follow the standards of his profession in testifying as long as the expert's testimony or report conforms to the requirements of local rules. II. EVALUATION PROGRAM A. SUBJECT MATTER OF EVALUATION Court Ordered Evaluation shall include any pre or post-judgment contested issue of parental responsibility, custody, visitation, removal, access to the children or other non-economic issues in relation to child(ren), and the evaluator appointed by the Court shall make a recommendation to the Court with respect to those issues in dispute. Unless otherwise provided in these rules, the Court shall order the parties to participate in evaluation at the mediation status date, upon motion of a party or upon the Court's own motion. I. PAYMENT OF FEES (1) The evaluator's hourly fee and the amount of the advance deposit shall be set from time to time by the Chief Judge, the Presiding Judge and the Acting Presiding Judge of the Domestic Relations Division. The evaluation fee shall include up to twelve (12) hours for sessions and costs of testing, plus two (2) hours for preparation of the report. The limitation on charges contained in these rules shall not include time expended for preparation or attendance at a court proceeding or deposition. Those charges shall be paid by the party calling the evaluator as a witness. (2) The parties shall be required to pay for individual sessions at the time of each evaluation session. In the event payments are not made as ordered by the Court, the evaluator may not suspend the process but shall promptly report failure to pay to the attorneys and the Court. (3) The evaluator's report shall include reference to the fee charged and itemize the charges, whether that fee has been paid in full, and if not, the outstanding amount owed. The Court may direct the parties to pay any sum that remains due and owing to the evaluator and may enter judgment accordingly. G. DISCLOSURE OF INFORMATION The information exchanged during the evaluation process does not constitute "mental health services" or "services" within the meaning of the Mental Health and Developmental Disabilities Confidentiality Act and is, therefore, not confidential. The records of an evaluator are not subject to discovery without leave of court after proper notice to the other parties and the evaluator. H. EVALUATION PROCESS (1) The parties shall attend the evaluation sessions which shall consist of up to twelve (12) hours in length including testing, unless extended by agreement of the parties and the evaluator or order of Court. Attendance at evaluation shall be limited to the parties, the children and those specifically requested by the evaluator. (2) Attorneys for the parties shall not contact the evaluator either during or after the evaluation, without leave of Court, except concerning those matters in the Referral form or in regard to scheduling. (3) The evaluation may be terminated or suspended at the option of the Court, the evaluator or upon settlement of the issues which caused the case to be referred to evaluation. (4) The evaluator shall immediately advise the Court and counsel for the parties in writing if the report will not be completed by the status date and state the reason for the delay and the expected date of completion. (5) In the event a party fails to promptly attend and participate in the evaluation without good cause shown, the Court upon motion may impose sanctions. (6) The evaluation must take place in DuPage County unless the parties agree otherwise. B. PRE-REQUISITE TO EVALUATION (1) The parties ordered to evaluation by the Court shall have completed mediation prior to the commencement of an evaluation. (2) The evaluation may be omitted, if the Court so orders, for good cause shown. C. QUALIFICATIONS OF EVALUATORS (1) The 18th Judicial Circuit shall promulgate a list of evaluators who have been approved by the Chief Judge, the Presiding Judge and the Acting Presiding Judge of the Domestic Relations Division to act as evaluators for the Court Ordered Evaluation Program, each of whom shall serve at the discretion of the Presiding Judge. Applicants for the program must file the required application with supporting documentation and meet the following criteria: (a) Shall satisfactorily complete a training program approved by the Court. In addition, the applicant must complete additional training as required by the Court from time to time; (b) Shall be a Ph.D. in psychology, Psy.D., Licensed Clinical Psychologist or Psychiatrist; (c) Shall maintain Illinois Licensure in full force and good standing; and carry current malpractice insurance in an amount as approved by the Presiding Judge; (d) Maintain an office in DuPage County and be available to conduct evaluations in DuPage County; (e) Shall have at least five (5) years of experience in practice post-licensure; education, training and experience with children and families; plus training and/or experience specifically relevant to the evaluation process. (2) Periodically the Presiding Judge shall prepare a list of Court approved evaluators. (3) An evaluator shall agree to handle three (3) reduced fee or pro bono cases per year as identified by the Court. D. REFERRAL ASSIGNMENT PROCEDURE (1) Upon the Court's order for the parties to participate in evaluation, an evaluator shall be selected by agreement of the parties from the list of qualified evaluators. Absent an agreement, the trial judge shall assign the evaluator and a ninety (90) day status date shall be set for the final evaluation report. (2) The Court shall designate in its order of evaluation: (a) The percentage of the evaluation fee that shall be paid by each party and/or whether the case should be considered a reduced fee or pro bono case; (b) Who shall receive a copy of the evaluation report; and (c) What issues are to be evaluated. (3) On or before the status date, the evaluator shall submit a report to those parties listed in Section D(2) of these rules. (4) The time for evaluation shall be tolled during any periods in which a motion to disqualify is pending. (5) The parties shall contact the evaluator within two (2) business days after the assignment for the purpose of scheduling an initial session. E. CONFLICT OF INTEREST (1) If the evaluator appointed has or has had any possible conflict of interest, including but not limited to a current or previous therapeutic, personal or economic relationship with either party, any child, step-parent, other relative, counsel or anyone else involved in the case, he or she shall decline the appointment or disclose that relationship to the attorneys and may be removed for that reason. If there is a conflict, the parties may select or the Court shall appoint another evaluator. (2) The evaluator may not function as a therapist to the parties, the children or step-parents before, during or after the evaluation. (3) Imputed Disqualification: No one will be eligible to serve as an evaluator if listed as a court appointed mediator under these rules or a member of a practice, agency or business entity whose members are on the Court's list of appointed mediators. F. REPORTING RISK OF BODILY HARM AND ABUSE All evaluators will conduct themselves in accord with the Abuse and Neglected Child Reporting Act standards (325 ILCS 5/1 et seq.). Junk Food For Your Brain... Kline Creek Farm (630-876-5900) will be tapping trees and making Maple "stuff" on March 3rd & 4th and March 10th & 11th from 10:30 a.m. to 3:30 p.m. on all four dates. Also, it is lambing time, join the staff to see the wonder of nature unfold. For the rest of you who would prefer a warm fire and good book, check out some of these titles and authors: STUART WOODS has written several murder mysteries with a little romance thrown in: "Palindrome," "Under the Lake," "Dead Eyes" or "The Run," to mention a few. KAREN ROBARDS writes romance novels with a little murder thrown in: "Ghost Moon," "Heartbreaker," or Paradise County." ELIZABETH PETERS has a new novel on the market "He Shall Thunder in the Sky," she writes turn of the century murder mysteries set in and around the Valley of the Kings, where she and her family search for Tut's tomb. She has a "stuffy" kind of Victorian writing style suggestive of that era. She has also written "The Falcon at the Portal," "The Ape who Guards the Balance," "The Last Camel Died at Noon," and many, many more. Also LILLIAN JACKSON BRAUN write about her two feline characters, Cocoa and YumYum, in the "The Cat Who ..." series, i.e., "The Cat Who Came for Breakfast," The Cat Who Smell a Rat," and many more. DEAN R. KOONTZ usually give us spine tingling, chilling, books like "Sole Survivor," "Intensity," "False Memory," and "Watchers," to name a few. SARA PARETSKY writes mystery novels that are set in Chicago and the surrounding suburbs, which makes them kind of fun to read. Look for "Toxic Shock" (a Silver Dagger Award Winner), "Windy City Blues," "Tunnel Vision" or "Hard Time." For the animal lovers among us, RITA MAE BROWN writes of her cat detective, Mrs. Murphy, and her two sidekicks who have a nose for murder in "Rest in Pieces," "Power Through the Post," or "Murder, She Meowed." Arnold Bennett, the British novelist, had a publisher who boasted about the extraordinary efficiency of his secretary. Once while visiting the publisher's office, Bennett asked her: "Your boss claims you're extremely efficient. What's your secret?" "It's not my secret" the secretary said "it's his." Each time she did something for him, no matter how insignificant, she explained, he never failed to acknowledge and appreciate it. Because of this, she took infinite pains with her work. Getting Respect: Respect is earned. It means taking on the qualities of those people who command respect. It's a matter of attitude, physical presentation, tone of voice, and the way you meet and greet people. Here are some ways to foster the characteristics that get respect: 1) Be truthful. The word "respect" often elicits the word "honesty." So be tactful and honest with everyone, that means owning up to mistakes if you've committed them. 2) When you meet someone, give a firm handshake, make eye contact and smile. 3) Be punctual. Punctual people convey the image that they respect everyone else's time. They in turn will respect your time. 4) Stay focused. Whenever you're at a meeting or conversing with someone, it's best to maintain eye contact about 80 percent of the time. 5) Respect others. Listen and don't interrupt. Speak positively and not critically of others. To get respect, you have to give it. What's Cookin... WATER CHESTNUT WRAPS Wrap each chestnut with 1/2 slice of bacon. Secure with a toothpick. Place in a shallow baking dish. Whisk together mayonnaise, chili sauce and soy sauce. Pour over chestnuts. Bake at 350 degrees for 45 minutes (more or less until bacon is cooked thoroughly. BROWNIE DROP COOKIES Melt chocolate with butter, cool. Beat eggs until foamy, adding sugar 2 Tbs. at a time, beating for 5 minutes on medium. Blend in chocolate mixture, add flour, baking powder, salt, cinnamon & nuts. Drop spoonfuls on a greased or non-stick cookie sheet. Bake at 350 degrees for 8-10 minutes. Cool slightly on cookie sheet, and then move to a rack until set. Cookies should be soft in the middle, so don't over bake. Original recipe from Baker's Chocolate ad 20 years ago! For information contact Gloria Norton at DuPage County Bar Association, 126 S. County Farm Road, Wheaton, IL 60187-4597, Telephone 630-653-7779, Fax to 630-653-7870 or E-Mail to: gnorton@dcba.org. |
