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EXPECT CHANGES IN COURT ORDERED FORENSIC EVALUATIONS IN NEW YORK DUE TO COVID-19
August 5, 2020

 

EXPECT CHANGES IN COURT ORDERED FORENSIC EVALUATIONS IN NEW YORK DUE TO COVID-19

We may very well expect changes in court ordered forensic evaluations of children in custody cases in New York.

The Journal of the American Academy of psychiatry and the law recently posted an interesting article By kirk HEILBRUN, Stephanie CBURKE, Amanda NEMOYER, Kelly Durham and Alicia Desia, that dealt with the impact of COVID-19 will have on procedural aspects of forensic psychiatry and forensic mental health assessments. Forensic mental health assessments will be frequently referred to as FMHA for purposes of this article. Because of COVID-19, the quality of the forensic Evaluations of the parties and the children have changed drastically. The public health concerns have limited how forensic psychologist can conduct these sorts of evaluations so that courts can rely on their reports and testimony and guidance at trial. Forensic evaluations are relied upon by courts to give them insight into certain medical and mental health conditions that they might not otherwise be privy to or knowledgeable about.

The reliability of these reports have always been subject to scrutiny by many New York divorce lawyers in New York in many New York divorce scholars. If COVID-19 disallows in person evaluations to occur the quality and validity of the evaluation will change.  Many forensic experts and lawyers believe that video conferencing might be helpful in determining evaluations of children and parties in custody cases in New York, but that we are just not there yet.  The challenges cited have been that the parties evaluated will have a hard time developing a rapport with the forensic psychologist because of the distance involved in videoconferencing. Other problems that arise would be that certain studies and tests administered by these experts cannot be administered telephonically. We can naturally expect that changes will have to be made to compensate for the lack of face-to-face contact between the forensic expert and the evaluated party.

Another problem exists because certain aspects of the evaluated party cannot be captured live since only the face and upper body can be seen visually on the Skype or zoom screen. Another problem is that people‘s body language are an important part of the evaluation. The evaluator will not be able to notice for instance if a party is tapping his foot and getting nervous at certain questions designed to arrive at the parties psychological stability. Another challenge is that when you interview a party in person the evaluator used was trained to become acutely attune to very subtle cues given to him by the party such as humor, kindness, and suspiciousness.  Arguably, more information will need to come from more third-party information, and this often taints the objectivity in the report. Another problem with retaining psychological evaluations in New York child custody cases is the fact that the forensic experts being used need to obtain an authorization to conduct SMHA either from the court or at the request of an attorney.  This might pose a legal challenge due to concerns about confidentiality.  For instance, who is in the room with the doctor and  who is in the room with the party during the evaluation?  Not knowing this will chill free discourse during testing and evaluation talks.

Next, we must evaluate the multiple sources of documents which a forensic expert uses in his or her assessment. The forensic expert usually conducts interviews testing and specialized modules which often require to be performed in a private room with the party face-to-face with the expert. Clinical interviews remotely suffer the consequence of being unreliable because of not only technical difficulties in administering the valuation but also interference occasion by technological failures in communication. As all these factors are taken into consideration, the risk of having in valid test results increases. As far as testing validity goes many measures used by forensics require the use of the party’s hands to either manipulate objects put in their control or to use in their hands. Remotely, this is just impossible to address in remote circumstances. Next, we come to the validity of these clinical evaluations. Clinical evaluations must be reliable and scientifically valid or else the courts cannot depend on them. The scientific evidence on comparing in person evaluation‘s against remote evaluations is just not there yet. As such, there must be much more testing and scientific inquiry into whether these forensic evaluations will be reliable enough for a court to consider.

in a recent ABA article dated June 11, 2020 in title technology, cases outlive COVID-19, points to the fact that they believe that forensic evaluations in custody cases should only be use for high-stakes situations or time sensitive situations. Obviously, the New York State bar will have much to say on this issue as days go on and if the challenges of Covid continues in our lives. I hope this gives you information that is valuable when you are in a Manhattan divorce case or child custody case  and when you or your attorney must decide whether to ask for a forensic evaluation

By:

Lisa Beth Older

Law Offices of Lisa Beth older

Your Manhattan Divorce Lawyer