The Role of the “Expert Witness” in a Custody Case. (Part 3 of 3)

Creating a Strategy: Using a Child and Family Investigator (“CFI”) or a Parental Responsibility Evaluator (“PRE”) in your child custody case is a decision you should make with the guidance of your divorce attorney. The CFI/PRE, allows in depth recommendations to be made to the Court regarding the parenting plan. The most important decision you and your attorney make regarding use of a CFI or PRE, however, will be the “strategy” that you develop. Anyone can react to the tactics, behaviors, manipulations and actions of their opponent during litigation. What you want to do is to get control of yourself and the litigation by getting control of the issues. With a CFI or PRE, gaining control over the issues to be evaluated, will only serve to allow you to present your position and parenting ability in the best light.

Often when a potential client contacts our office mid-way through a divorce/custody case that they are trying to handle without an attorney, they have found themselves on the “reacting” side repeatedly. By reacting, they appear aggressive and vengeful and often act in a way that is not typical of the behavior and values. They often feel powerless and frightened. Their biggest mistake was that they did not create a “strategy”, so they do not know what to do to get to the result they wish. Your attorney will help you create a strategy—a plan—to get you to your goals. The strategy must be based on your goals—what is most important, second most important, etc. Often a Client will state that the parenting plan is the most important aspect of their case and they will describe the parenting plan they wish to have ordered by the Court. The strategy you create with your attorney should always be centered on your goals so that every move you make, will get you closer to your goal. You will then be able to move forward setting the issues and employing procedures that assist you in obtaining your goals. The strategy may flex and bend at times in reaction to the opposing party’s tactics, but generally a good strategy stays firm so that your message to the Court is one of consistency.

When a CFI/PRE is appointed during a case the use of this expert witness should have been a major consideration in the development of your strategy. The strategy you develop with your attorney should include “how” to respond to the CFI/PRE. This is extremely important as one of the problems for someone going through the stress and worries of a custody case is that their message—to the Court and to the CFI/PRE—is lost in delivery. The parent knows what they want to say or do but it comes out wrong; or, the CFI/PRE hears it wrong and makes a negative assumption. You don’t want to go through the trouble and expense of hiring an expert witness only to compound your problems and worries as you fumble through what could have been a positive tactic and result. Your attorney cannot tell you what to say to the CFI/PRE specifically—but your attorney should tell you “how” to convey your information to the CFI/PRE.

“How” you convey information will be based on the truth of what you are really trying to convey. You must then add to that truth the appropriate emotion that allows you to fully explain not only the facts but the surrounding circumstances, reactions, influences and consequences that are conveyed through the emotion. The difficulty is, of course, it just isn’t always so easy to make your position known the way you want it to be heard. This is where your attorney can help you. Once you and your attorney establish “how” you wish to be perceived and “how” you will communicate, then you will understand “how” your message will be filtered through the actual words and emotions you choose. With the help of your attorney, an otherwise accusatory or disparaging statement can come across as “concerned” –because that is what you are really trying to say.