Kafkaesque: of, relating to, or suggestive of Franz Kafka or his writings; especially: having a nightmarishly complex, bizarre, or illogical quality, as in Kafkaesque bureaucratic delays.
(Miriam-Webster online dictionary)

As ProPublica recently revealed in detail, Kafka’s dystopian vision is a terrifying reality for many New Yorkers who have had judges appoint forensic psychologists in their custody dispute cases.

In Joaquin Sapien’s thorough (and thoroughly disturbing) article, For New York Families in Custody Fights, a ‘Black Hole’ of Oversight, he reports on the story of a mother separated from her son as a result of an error-filled and incomplete analysis made by a court-appointed forensic psychologist.

In New York, if parents have custody disputes that they cannot resolve on their own, they go to Family Court or Supreme Court. These courts often appoint (and the parties pay for) a forensic psychologist to interview the parents, the child, and other people in their lives such as teachers, caregivers and grandparents. The purpose of these interviews is to help the psychologist make an analysis and issue a report that is meant to help the judge decide what custody determination would be in the best interests of a child.

What happened in this particular case is that the psychologist never interviewed the mother or the child, relying completely on the father’s words and a single family interaction that the psychologist had witnessed. The mother and the child were accusing the father of physically abusing the child and the mother was seeking full custody. But the psychologist had other ideas.

In her report, the psychologist accused the mother of “parental alienation.” She alleged that the mother was “poisoning” her child against his father. She went on to suggest that the child’s various and plentiful outbursts and refusals to see his father were the result of being coached by the mother and should not be taken at face value. The judge then relied on the psychologist’s report and sent the child to live with his abusive father. Things got worse from there:

[The child’s] behavior and state of mind deteriorated after that. Usually a strong student, his grades began to decline. Rather than completing assignments, he’d scrawl all over them that he wanted to see his mother. He complained to teachers and social workers that his father had beaten him with a belt and locked him in a basement. His behavior grew increasingly erratic. He tried to run away. He broke windows. He urinated and defecated around the house. Social workers with Child Protective Services became a regular presence at the boy’s home, but their reports echoed Burkhard’s [the psychologist] belief that [the mother] was encouraging the boy to make false allegations of abuse.

The mother eventually won back custody but it took years. In the meantime, the child was removed from the father’s home, was sent to live at a residential treatment center, the mother lost her own job as a school psychologist after being charged with neglect stemming from the alleged parental alienation—in addition to spending all the money she had on legal bills.

How could this happen? Court-appointed forensic psychologists in New York State, as compared to other licensed professionals, exist in a rarified world where there is no real oversight of their actions. The Office of Professional Development, or OPD, technically oversees court-appointed forensic psychologists, but when the mother in this case sought to complain about the forensic psychologist in her case, she (like so many others in her shoes) hit a roadblock.

The OPD claimed that it could not take her complaint or help her in any way because of confidentiality concerns… surrounding a dispute involving herself and her child. Basically, New York State is supporting an industry that wields enormous power over people’s lives, while being shielded from criticism and professional review.

This woman and her son needed the court system to protect the child and it did nothing but inject more harm. I encourage anyone else even thinking of “letting the judge decide” what’s best for their child to heed this sad tale. Unless there are actual allegations of abuse or neglect, court should be your last resort. Don’t subject yourself to a system that has proven itself to go so wrong. If at all possible, parents should find a way to work these issues out between themselves. Your mediator or collaborative lawyer can help you keep the matter out of court by finding a child specialist to advise on the needs of your children and help to work out a parenting plan through common understanding and consensus building. That doesn’t mean every decision will come easily. But it is more likely to produce an outcome that gives the children a chance to thrive instead of suffer.

Vacca Family Law Group

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New York, NY 10165