On any child custody or criminal case where I find that a child has made an outcry of sexual abuse and there have been multiple interviews of that child or children, questionable interview techniques have been used or it appears that the child may be being "coached" by one parent to make allegations against another, I usually recommend that the defense attorney consider a Motion for Independent Psychological Evaluation. Now, realize that in about every state I have worked in, the first thing I normally hear from an attorney is, "You cannot do that in this state." or, "The judge would never allow that." Is that accurate information? I worked with a client in Minnesota that was involved in a very messy child custody case. During that case, my client was arrested based on allegations of sexual abuse made against him by his then 6-year old daughter. The allegations were very dangerous in that the child said, "Daddy put his pee-pee in my pee-pee, it hurt real bad, I bled and he told me if I ever told anyone, he would hurt me and my mommy." That was a lot of detail for that child to be giving. At that point, I told my client that either he was guilty or his daughter had been coached beyond belief. Because of the depth of the little girl's allegation, I asked my client to have his attorney file a motion to have his daughter and ex-wife psychologically evaluated. The first words out of that attorney's mouth was, "That may work in other states, but it never would fly here." About a year later, as were preparing for a very dangerous criminal trial. my client went back to his attorney and said, "A year ago, we came to you asking you to file a motion for an independant psychological evaluation and you said it could not be done." Based on that, the client asked his attorney to give him a list of cases where he had attempted filing that same motion and had it rejected or to identify any other attorney who had unsuccessfully filed that same motion. The attorney told him he had never filed such a motion and that he had never heard of it, so he asumed it would not work. Needless to say, the client facing the criminal charges was not happy. The attorney did the research at that point, filed the motion and the criminal court judge allowed the evaluation. When that evaluation was complete, the psychologist who evaluated the 6-year old stated that it would be impossible to ever determine if the child was giving an account of something that had actually happened to her or if she was giving facts she had been coached and taught. Based on that finding, a motion for a credibility hearing (Taint Hearing) was filed and a hearing was held. During that hearing the psychologist who evaluated the child testified, the judge agreed that the child had no credibility and dismissed a very dangerous criminal case against my client. The State did appeal. It took the Appeal's Court about 11 months to come back with their decision to support the lower Court and that ended my client's nightmare. In that case had my client gone to trial, I believe he would have been convicted. I cannot believe that any jury would call a crying 6-year old little girl a liar based on the details I knew she would give so in reality, the motion for the evaluation and the evaluation itself saved my client's life. The issue here is, these motions can and do work.

If such a motion is considered, you need to assure that you do not get a biased therapist with an agenda who believes the allegations just because the child said it happened. I would locate an "unbiased" professional, who works with children and has the ability to properly communicate with the child. If the child is currently seeing a "validator" as a "therapist," I would file a motion, asking that there be no further contact between the child and the current therapist. This may not be as difficult as you would think. In so many cases, the child is seeing the same therapist for treatment that they initialy disclosed the alleged abuse to. That could be considered a duel role on the part of that therapist (acting as a forensic and treating therapist), something that is not acceptable and makes an excellent argument for discontinuing their current therapy.

Finding the proper evaluator might not be an easy task, but when asking the Court to consider this evaluation, you should be prepared to provide at least three potential names for consideration. Trying to shortcut this step could easily put you into a position of retaining a "validator" and winding up with a less than favorable evaluation, something that recently happened in a case that I am involved in and an issue that we will discuss thoroughly in this document.

Several jurisdictions give the trial judge discretion to order a victim to submit to a psychological evaluation when the defendant can show compelling need for such an evaluation. The trial court's denial or grant of the defendant's request is then reversed only if the trial judge abused his discretion. Pickens v. State, 675 P.2d 665 (Alaska App. 1984); Koerschner v. State, 13 P.3d 451 (Nev. 2000); State v. Michaels, 642 A.2d 1372 (N. J. 1994) [5] ; Forbes v. State, 559 S.W.2d 318 (Tenn. 1977); State v. Delaney, 417 S.E.2d 903 (W. Va. 1992). In Delaney, the West Virginia Supreme Court adopted the following guidelines for the trial judge to employ in balancing the defendant's need for the examination against the victim's right to privacy: In order for a trial court to determine whether to grant a party's request for additional physical or psychological examinations, the requesting party must present the judge with evidence he has a compelling need or reason for the additional physical or psychological examinations. In making the determination, the judge should consider:

• The nature of the examination requested and the intrusiveness inherent in that examination;

• The victim's age;

• The resulting physical and/or emotional effects of the examination on the victim;

• The probative value of the examination to the issue before the court;

• The remoteness in time of the examination to the alleged criminal act; and

• The evidence already available for the defendant's use.

Delaney, 417 S.E.2d at 907. In Delaney, the trial judge denied the defendant's request for a psychological examination of the victims (three small girls). The Delaney court affirmed because the defendant failed to present "any reason, compelling or otherwise, to justify the examination," although the court indicated "in many cases with similar circumstances, the trial court would be justified in allowing the examination." Id. at 908. The defendant simply did not meet his burden of setting forth a compelling need.

Other courts have taken the position that compelling a victim to submit to a psychological examination violates the public policy designed to protect the victim's right to privacy and to prevent further trauma to the victim. People v. Espinoza, 95 Cal. App. 4th 1287 (Cal. App. 2002); [6] State v. Horn, 446 S.E.2d 52 (N.C. 1994). The North Carolina Supreme Court considered many of the same factors as the Delaney court, including the conflicting interests of the defendant and victim, before concluding "‘the possible benefits to an innocent defendant, flowing from such a court ordered examination of the witness, are outweighed by the resulting invasion of the witness' right to privacy and the danger to the public interest from discouraging victims of crime to report such offenses.'" Horn, 446 S.E.2d at 452 (quoting State v. Looney, 240 S.E.2d 612, 627 (1978)). The court commented further, "in balancing the rights of the victim and the defendant, . . . ‘zealous concern for the accused is not justification for a grueling and harassing trial of the victim.'" Id.

See http://www.ipt-forensics.com/journal/volume1/j1_2_3.htm if considering filing a Motion for Evaluation. (Copy and paste link into browser). Ralph Underwager, Ph.D., deceased, prepared that information and it is excellent for forming a proper motion.

As I stated above, in a custody case or even a criminal case where allegations of abuse have been made by a child or children, one very important issue is in selecting an evaluator when you are attempting to have a child accuser evaluated. The qualifications of that evaluator are critical. Unfortunately, many evaluators are nothing more than what I would refer to as a "validator." This simply means they go into an evaluation where a child or children have made an outcry of sexual abuse and they support that allegation simply because the child said it.

As an example, let's consider a real case. This involves a family where the father of two children has custody of them and has had that custody for the past two years. The children in the case made an outcry of child sexual abuse against the grandfather. CPS investigated the case in the children's home state, "founded the allegations," (determined that they were true), and the matter was then referred to the district attorney in the grandfather's state. At that time, the DA refused to go forward with charges or even attempt to have the grandfather indicted.

At that point, the daughter, the mother of the children, was simply fighting for her rights to visitation and she had filed a civil suit asking for custody. Long ago, I advised the family that one critical issue would be an attempt to have the accusing children, as well as all parties in the case, properly evaluated by a professional.

I just had the opportunity to read the report from the evaluator that was retained, an evaluator that everyone had complete and total confidence in. The report gave the children and their allegations credibility, found no real problems with the father or step-mother and basically nailed the mother to the wall.

At the time the evaluator's report came out, there was also a desire on the part of the family to write CPS and request they reopen their prior investigation where they had founded the allegations against the grandfather. Doing that or even going to court regarding custody at this point, based on the current evaluation report, could prove fatal to the children's mother and her father, the man the children have accused.

Unfortunately, most people in these cases never look at the next level, on the position they are in at a particular time. For example, in this case, the mother was basically identified by the "Court Accepted" evaluator as unfit. Based on that, the mother asking for custody of the children that had been with the father for the past two years would seem to be futile, however, let's look at one fact that no one seems to have considered. The father in this case now has a professional who appears to support him, his wife and his children. They know that CPS in their state has "founded" the sexual abuse allegations and they know that the prosecutor in the grandfather's state refused to go forward with criminal charges. That refusal could easily end up being a slap in the father and the children's faces, so now, with an expert supporting them, they might really get vocal about the allegations. If that were to happen, the grandfather could easily and quickly be looking at fighting criminal charges.

The shame in this case is, how did this expert even get into the case in the first place? Many months ago, I instructed the family of exactly how to locate and retain a proper expert and their attorney had that information as well. When you have a case of this nature, you need to locate unbiased professionals and develop a criteria that you can present the Court with in making a proper selection of that professional. There are several minimal factors you consider:

• Assure that the professional has experience and expertise in child sexual abuse cases where they have personally determined that some of the allegations they have dealt with have been real and of some of them have been false. If your expert has only experience with real abuse, then to them, all allegations are true simply because a child said so. That appears to be exactly what has happened in this case. I cannot help but wonder if the mother's attorney ever even requested a CV from the evaluator.

• Assure that the expert has experience and expertise in cases dealing with or involving parental alienation. If they have no experience in those cases, they will normally find it hard, if not impossible, to believe that any parent would or even could use a false allegation of child sexual abuse to gain the upper hand in a custody battle.

• Assure that the expert has "credibility" with the local Court. The last thing you ever want to do is retain an expert who provides you with a fantastic opinion only to have that opinion completely rejected by the Court.

Now, in this case, an evaluation has been done so the question is, what do you do about it? Obviously, you need a professional to evaluate the mother properly and rebut the findings of the initial evaluator. To do that, you must find a professional who has credibility that is at least equal to, or hopefully more than the current evaluator with the local Court, in addition to the other criteria I have identified in this document.

It is understandable that many people panic in cases like this, as is seen in this example. Just after I read the evaluation report in this case, I sent the mother an email with advice specific to stopping everything and concentrating on getting a proper evaluation completed. Almost immediately after I sent that email, I received an email from the mother. She stated that she met with her attorney, everyone was in agreement that she should be evaluated, and that they were considering a certain person "to evaluate the first evaluator's report." The attorney told her that she did not know if the new therapist would have the same findings or opinion as the current evaluator or not. I visited that proposed new therapist's website and there was not one word on there that matched any criterial I recommended and absolutely no reason to believe that therapist would not be a validator as well. If that family got a second evaluation that supported the first, that would be more than problematic and they do not need to get the evaluation report evaluated, they need to get the mother properly evaluated.

Now, back to my original question, "How did the current evaluator even get into the case?" Based on his report it would be hard, if not impossible to believe that he has any expertise in false allegations of child sexual abuse, and I seriously doubt he has any knowledge or experience in parental alienation. An argument could be, "Oh, he was assigned by the Court." That may be, but at the same time, the attorney has the responsibility to assure that certain criteria or qualifications are met so that their client does not end up with the ridiculous report as has been seen in this case. No, I am not professing to be an expert, counselor or therapist, however the evaluator in this case used very little testing and some of the tests he used are simply not used in main stream psychiatry. A good attorney would have requested a CV, known that and filed a motion to have them excluded while at the same time identifying professionals the Court could use.

My biggest concern in this case now is that the father, step-mother and accusing children now have a taste of victory and the question becomes, "How will they react?" At this point, and based on the report prepared, the mother appears to be unfit, bi-polar and a borderline personality with a host of other issues. The grandfather, who has done nothing wrong, could easily face an arrest warrant.

The solution to this case, and any case in this shape at this point is:

• Find a psychologist or psychiatrist, who has experience in real and false allegations of child sexual abuse, parental alienation, who is unbiased and has as much or more credibility with the local Court as the current evaluator and let that professional do a thorough and detailed evaluation of the mother, using proper testing, to rebut the findings of the current evaluator. There is no other way to proceed, but pick the wrong evaluator or come up with an identical opinion as the initial evaluator, and this case could become far more problematic and very quickly.

One final consideration. When you are communicating, written or oral with any expert, you do not need to give them every detail since the beginning of time. As an example, when I do an evaluation with a client, I prepare a very short and detailed report identifying the basic problems of the case and that is all. Yes, I could type hundreds of pages, but it serves no purpose and it would never get read. In this case, for months, the mother's mother in this case and I went round and round about what to give CPS in an attempt to have them reopen their case. I explained, "Nothing that would be used as a defense in a criminal case." The initial letter I got from them was a clear, "We are giving you every detail on the planet as to why this should be reopened, why you screwed up and why the grandfather is innocent." After numerous emails we finally got down to the exact point, but as I said, based on the just published evaluation report, I certainly would not ask CPS to reopen anything at this time. The real point here is, CPS has already reached an opinion and you will not get them to change that opinion based on anything you write. All you accomplish is giving away a possible defense should criminal charges ever be filed. When you "reach" out, and try to "make" your case with CPS, what you really need to understand is, they don't care. I wish they did, but that has not been the case, with the exception of a few very rare occasions in the past 19 years since I have been working false allegation cases. One of the best possible examples I could use going back to a young man I worked with in Arkansas. Prior to my involvement, he was arrested and charged with improperly touching a young girl at a day care center. He could not have been guilty. He was not even in the state at the time. Believing law enforcement was just doing their job, and "in an attempt to get all of it behind him," that young man went to the police and presented them with all his motel, meal and gas tickets. The police thanked him for coming in, patted him on the back as he walked out, then went straight to the little girl and asked for a new date. She provided one and the boy had no defense. Why would anyone give away important details about their defense in a possible criminal case? The answer is simple; they are looking for the easy way out, a shortcut if you will, in an attempt to get it all over with. If that worked it would be great, but the problem is most of the people you would go to have already formed an opinion and you are not about to change it.

One of the things brought out clearly in the evaluation report was that the mother brought large amounts of paperwork and after the evaluator explained there was a time limit and what the cost would be to review all that material, all of it was just dropped. What the mother did not understand is, when that happens with many professionals, the opinion of the professional is, "They must be nuts to even think I would or could review that amount of documentation." Keeps facts simple, short, to the point and be extremely careful about what you divulge and to whom. In this case, again according to the evaluation report, the mother went on and on with the evaluator, telling him everything she thought was important and only to have her own words turned back against her. You do not defend to certain people. You cannot win. They simply do not care and obsessiveness in trying to defend to some people in many cases can easily come across as being problematic. Have a plan and a strategy for anything and everything you do. As an example, above in this document I pointed out that the mother had met with her attorney and they were considering a therapist, but the attorney was not sure of their "evaluation of the current evaluation" would be any different. Well, it is their responsibility to know and as I said, they do not need an evaluation of the evaluation, they need to mother properly and professionally evaluated in order to rebut what is in the initial evaluation.

Getting the proper evauator in a case dealing with a false allegation of child sexual abuse can be the main cornerstone to stopping criminal charges. Getting the wrong evaluator can quickly lead to criminal charges.

For additional information, see Custody Evaluations.

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