Simon Law Group: Custody Neutral Assessments (CNA) Found Not to be Admissible as Expert Reports

Custody Neutral Assessments (CNAs), a mostly South Jersey phenomenon, have been described as a supposed alternate dispute resolution program that was available for high conflict cases that were inappropriate for, or are unable to be resolved, through mediation. This program utilizes several mental health practitioners in the community who meet with the parties, discuss contested issues and make clinical recommendations to the court on how to resolve disputed issues. The way it was supposed to work is that in the counties that use CNAs, after mandatory mediation fails, the Court was to enter an order appointing an evaluator to perform a CNA. The parties then were to receive notices as to the time and date of their initial meeting. The fee was nominal compared to a full-blown custody evaluation because the parties are paying for approximately 4 hours of the evaluator’s time. Each of the parties meet with the evaluator and it is up to the evaluator to determine if it would be appropriate for the children, step-parents, etc. to participate. Unlike a custody evaluation, there is no psychological testing or psychological evaluations. The evaluator then issues recommendations to the Court which can include custody, a parenting time schedule, anger management, a drug and alcohol evaluation, and recommendations regarding related issues. Once the Court receives the CNA, the parties are scheduled for a Case Management Conference at which point the Court determines whether to accept, reject or modify the CNA recommendations. At this hearing, the party that is dissatisfied with the CNA can request a custody evaluation if the CNA involves a change in custody or custody determination.

43372204 - forensic psychologist indicating word clinician and therapist

However, what was supposed to be a non-binding dispute resolution tool often became some more than that though many practictioners questioned how this could be so. In fact, when I wrote the Custody chapter in the most recent edition of New Jersey Family Law Practice, published by ICLE, I wrote:

While this process may be a way to get some level of expert involvement in cases that cannot afford a full-blown evaluation, or a way to ferret out bad-faith, anger driven or other “custody cases” that are not truly bona fide custody disputes, there are certainly causes for concern with the process. First, given that the CNAs are abbreviated, it seems unlikely, if not impossible that the recommendations being made are based upon a reasonable degree of psychological certainty. See N.J.R.E. 702, 401 and 402. See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed. 2d 469 (1993); James v. Chevron U.S.A., Inc., 301 N.J. Super. 512 (App. Div. 1997), aff’d 155 N.J. 279 (1998)(which held that Daubert applied in New Jersey). See also Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999). As such, they would be legally inadmissible at trial and little more than a net opinion.

Further, if this is a method of alternate dispute resolution, one wonders whether it is proper that the court is being provided with these so-called “recommendations” made after limited involvement with the parties and perhaps no involvement with the children. To the extent that the process is meant to evoke a settlement, does the reporting of the recommendations to the court violate N.J.R.E. 408? Though it is clearly not mediation, should a confidentiality standard that applies to mediation also apply to a CNA? See Lehr v. Afflito, 382 N.J. Super. 376 (App. Div. 2006). If it is an alternate dispute resolution method that may have binding implications, should there not be heightened procedural safeguards as there are now required for arbitration of custody matters? See Fawzy v. Fawzy, 199 N.J. 456 (2009).

If and when there become more widespread implementation of CNAs, perhaps some of these questions will be answered.

Well, it took almost 5 years since I wrote those words, but the question was just answered by Judge Jones in his unpublished decision in the case of Serrano v. Urbano released on December 1, 2016 when he held that CNAs were not evidential as an expert report, though the preparer could testify about what was told and “his or her professional impressions and concerns regarding such statements or actions which the assessor personally witnessed and/or experienced in his or her contact with either party during such process, if relevant to the best interests of the child at issue.”

Of note, Judge Jones held that:

A C.N.A., however, is not a “mini-evaluation,” or an “express evaluation”, or a “discount evaluation. Most particularly, the C.N.A. generally does not involve any forensic psychological testing of either party. Nor are there generally any bonding evaluations between the parties and child. In fact, the assessor may not even meet the child, and may not include an analysis of the statutory custody factors under N.J.S.A. 9:2-4. Rather, unless otherwise agreed, the assessor generally meets with the litigants for a limited period of time, converses with them separately, and renders a report .

More importantly, the Judge held:

When an expert has not conducted a forensic custody evaluation to serve as the foundation for a recommendation, any “expert forensic opinion” rendered by the professional regarding custody, as rendered in the content of a C.N.A., cannot be admitted into evidence as the results of a full forensic evaluation, because no such evaluation ever took place. An expert forensic opinion on custody without a forensic evaluation is essentially a net opinion. Moreover, the assessor in this case, though a mental health professional, was not a forensic psychologist.

That, however, is not the end of the analysis because the Judge also held that:

Under the doctrine of limited admissibility, however, the testimony and C.N.A. report of the assessor is admissible in part on the issue of the parties’ words, actions and conduct during the C.N.A. process, as well as any impressions and concerns the assessor experienced in witnessing same.

The first part of that essentially renders the preparer of the CNA a fact witness which seems consistent with the Rules of Evidence in terms of admissibility. However, most fact witnesses are not permitted to testify about their opinion. Since impressions and concerns are essentially opinions, this seems to provide a way to get in through the back door what you can’t get in through the front door. Since this is both a trial court and unreported decision, it is not precedential on any other trial judge, thus, the argument that the court should not consider the preparer of the CNA’s “impressions” or “concern” remains a viable one to make.

______________________________________________________

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.