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Racial, Cultural, and Religious Factors In Child Custody Evaluations

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Racial, Cultural, and Religious Factors In Child Custody Evaluations

This lecture will present the interdisciplinary perspective relating to custody matters when presented with cultural and religious issues and discrepancies between parents. It will review case law and psychological protocols that are used to understand what factors a court will consider and what weight it will attribute in the handling of the matter.

Transcript

- Okay, we are here on racial, cultural, and religious factors in child custody evaluations, attorney advocacy, and judicial decisions. My name is Martin Friedlander, I'm a matrimonial attorney and I'm with. 

- Hi, my name is Dr. Leah Younger, I'm a psychologist in private practice. - We're going to start to describe issues that are applicable in custody matters, where there is a discrepancy or disagreement between parents, whether it's in regard to race, religion, or culture. And that has many factors as part of it in the fact that there may be two parents that when they were married, they were on the similar page in any of these issues, and then one during the course of their marriage or during the part of the case where the divorce commences, and they decide that they want to change lifestyle patterns for a host of reasons. And obviously there's the reverse where the parents were on the same page during the marriage, during the time that they raised the children, and then one parent decides that they want to change their lifestyle, either adhering to religion or adapting, race and cultural sensitivities that they did not care for earlier in the case in which they were raising the children. 
- Before we jump into any of the specific cases, this might be a little bit dry, but I think it's important that we just take a minute to define the variables that were just named. So today, when we talk about race, we're referring to a group of individuals sharing outward physical characteristics, and some commonalities of shared ancestry. When we talk about culture, we're referring to the customs, arts, social institutions, achievements, beliefs, behaviors, values, and morals of a particular nation, people or other social group. Culture is learned and shared amongst the people within a given culture. Then there's this idea of cultural relativism, which is the principle that understanding the beliefs and actions of individuals must be predicated on understanding the cultures in which they were raised and within which they currently live. When we talk about religion, we're referring to a particular system of faith and worship such as attitudes and practices. Now, I also wanna point out that value systems and behavioral practices vary across and within race, culture, and religion. And it's important to kind of keep that in mind because there's going to be individual differences, even within a particular group. So attitudes regarding firearms, gender roles, time spent on educational activities versus extracurricular activities, ideas about alcohol, marijuana consumption, technology use, diet, the way we understand and process nonverbal language, body gestures, parent rights versus child rights, all of these ideas I think we try to think about in this group, they do it like this, and in that group they do it like that. But it's important to not over generalize because you always have to remember the individual with whom you're evaluating, treating, or litigating on behalf of because there will be individual differences. - Yes, obviously beyond the scope of this lecture is definitions of what, whether a particular religion is considered a religion, but we're going to go on the premise that these are all established religions and norms that would fit into race and culture, not the specifics, if something new, it should fall into one of these categories. - So, we have this adorable little cartoon here of a child kind of hiding behind a book. And it says, please, God, don't make her pick me, not me, not me, not me, not me. He's clearly hiding from his teacher and the child says anybody but me, not today, I swear I'll be good all year. Not me, not me, not me. And then there's this voice from afar that says, Conrad, come up and write your answer on the board. And then Conrad says, why don't you ever answer my important prayers? - Now, going into a bit of the cases, we know that courts cannot adjudicate religious issues based on religious principles. So how does that impact custody? Normally there's a separation of church and state that goes throughout the State of New York although some of the cases will go into more of New York and surrounding areas. And the reason for that is there are a slew of case laws that deal with these issues on a regular basis more so in the Northeast that I have found in regard to religious issues while a court can't decide what religion is, religion is part of an analysis. Now, to go into the basics obviously the attorneys are making applications and the cases that we are going to describe here are ones that are in litigation when both parents cannot make a joint decision. Taking that into effect, the usually a court will appoint and assign a forensic evaluator to assist in making a custody determination, a state such as New York, which the premise is that once you're litigating before the court, this is not a joint custodial arrangement because you can't make a decision. In New York for example, the custodial parent does make the religious decision as to how the child is going to be raised. This does not take away from the fact that the other parent will have access to the child, and there may need to be parameters or restrictions as to that contact based on the religious observance of the child or children. This can also be implemented in regard to cultural differences that may arise. In regard to race, it's again, a consideration that the forensic evaluator will have to take into consideration, although a look at the current case law will show that after the 1970s, there are much fewer cases that race has been raised as a factor, prior to that, it was a issue of contention in many of the custodial decisions. Now there was. 
- I actually wanna raise a question for you Martin. So, we very boldly talked about the separation of church and state. And then in talking about race, you said, it's something for the forensic evaluator to consider how much weight to give. Is there anything that you are aware of or cases where the judges considered the role of race in cases and what did that look like? And you might get to that when you review the specifics. - Well, again, most of the cases that I've seen where the courts is considerate is prior to 1970s, and they did take it into consideration as to how it would affect the child's lifestyle, in terms of i.e the neighborhood they were raised or being raised, the schools they were attending, and then, if you go a little bit prior, you're going to see who can give a better lifestyle to the child. But lately, I haven't seen any case law where that has been a factor, whether for the forensics or whether for the court. The cases provided here, give you a synopsis of some of the what's going on in New York, there are some other cases from Wisconsin, Montana, and Pennsylvania. So, to give a little bit more of a broad base. Let's go to Friederwitzer first. Friederwitzer was a 1982 case in New York State that went up to the court of appeals. And while political climate should not be a triggering event, as we go through the case analysis, you're going to see that cases with similar fact patterns have changed as society has affected the bench. And in regard to that Friederwitzer was a case where the parties entered into an agreement which required both parents to raise the children under Orthodox Judaism. The mother relocated after the divorce from Long Island to New York City. And during the Sabbath, she would have her boyfriend who did sleep over in violation of the agreement at her home, putting on the television. This affected negatively the children who complained to their father. There was one other element that the children did report that the mother would leave them home at night alone. And the court based on the agreement changed custody and granted custody to the father. Now, that was clearly based, the majority of that decision was based on the religious observance provisions of the agreement. If you go into some of the newer cases and we'll skip around a bit. Weisberger, which was a case from 2017, in which the parties entered into an agreement that not only would they observe religious etiquettes of how they were raising the children till now that both parents would also conduct themselves in the manner of how they were raising the children. This was a science stipulation by the parties with attorneys. At some point, the mother made a application for a change of custody that was due to the father's motion to enforce the terms of the agreement. The father became aware that the mother now identified as LGBTQ+, and wanted to have the children. It became a custody battle in which there was a forensic, although the court decisions did not reference them. And basically the court said that even if you go into a contract with counsel, you cannot waive that your individual right, to conduct yourself in a manner that you wish to. And while they granted the mother custody and did put in a dictate that she shall make all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic religious requirements of the father and of the children's school, while the children are in the physical custody of their father or their respective schools. And that was a turning point, which I feel is really in contradiction to Friederwitzer, and the fact that the courts are no longer enforcing a contract and to go one step further, there's the Weichman appeal, which I in fact argued. In that case, there was one child who was raised under Hasidic Orthodox tradition. There was a forensic evaluation, which whose testimony spanned a period of 10 days. Reading the forensics I can state that the court granting the father custody had nothing to do with religious observance, it was clear best interest test award. But the court in that case put a dictate that the mother could not expose the children, the child in this case to activities or practices counter to the child's religious upbringing. And in that case, the appellate division felt that that restriction was too restrictive in regard to allowing the mother, again, someone who has, was raised into the Hasidic Orthodoxy and now a member of LGBTQ+ to freely express herself. And so again, we see that I believe the political environment, which changed from 1982 to the present had its effect on type of cases where the religion is a issue, at fact between the parties. - If I'm hearing correctly, it sounds like the cases that you reviewed largely turned or were focused on a precedent that might have been set. So agreements that the parents reached, the way that life was lived for significant period of time before separation and divorce. Can you talk a little bit about the role that a precedent plays and how the cases might be handled differently if they weren't married for 10 years, if they were married for a few months, if they divorced when the child was only a few months old, if there isn't a long history of being able to identify, this is the community we live in, this is the schools we send to and so on. 
- So that's a good question. And the answer is that the way or the history of the case has a large effect on it. We were dealing at least initially with cases there were agreements, there were stipulations, the parties did not argue as to what the parameters would be, and then there was a violation. And after the violation, there comes a point where I'm not identifying like that anymore. I don't want to hide my lifestyle from the child any longer, even though it may conflict with the way we did it. If you're talking about a young child where there's no history, the child, the parents, I think the factor comes into some extent and obviously the best interest, which is defined by what's best for the child, I don't think there is a definition or a real standard, I think it's something that you know it when you see it, it's used by forensics, it's used by the courts, but barring that, and again, when we talk about these cases, we're not talking about cases where there's a safety issue, where the parent who wants to maintain the status quo, it has some impairment, whether sexual, whether physical, whether mental, in their ability to care for the child. We're talking about parents that aren't at par, maybe one being more of the prime caretaker than the other. But when there is no history, it's very difficult, except that the court would look at some of the factors that will probably get to a bit later in regard to how were these parties married? What did the ceremony look like? Under what tenets were they? And there was a presumption that the child would be raised in a certain way. I had a case where parties were arguing over whether the child should remain religious at all. And the judge, the child was young, so there was a bit of the history but not a lot because the litigation commenced when he was two years old, and he was six years old and he was still litigating. And the judge, which I thought was very intuitive asked for the wedding album. And when he saw the wedding album, his speech to both parents is, you didn't look like that like you do now, nor did you. And he was speaking about two people who were on opposite ends of the spectrum in the address under religious codes. And it gave a judge a little bit of a perspective of how to apply. And I think in that case, he was able to figure out something that would work under both of their, neither one was happy, which is usually the result of a good settlement. But when somebody is when there's no history, and I think when a baby is very young, under two years old, I'm not sure any of these will be really applied other than the best interest. And, you know, to say that we wanted to, I'm not sure that that will have a lot of weight, except if there is already a history with the family. 
- What I like about what that judge said is that judge took into consideration that all humans evolve hopefully, we're all growing and changing. And that the judge kind of took the time to get to know each of the parents as individuals and looked to see how each of them evolved either together as a couple or separately on their own journeys, which really brings us kind of into the nitty gritty of how does this play out and how does this manifest with the clients that we work with? And just to kind of give some examples, what we end up seeing is that there are differences in beliefs and practices between the two parents. And there may be changes in the degree of either or both parents involvement and observance, whether we're talking about in organized religion or just culture and communal activities. Sometimes the issues that are raised are the degree of tolerance or intolerance of that one parent has for the other parents' beliefs and practices. And this really goes to both ends of the spectrum, whether it's somebody becoming more conservative and more restrictive and or someone becoming more liberal and more open. And I don't even mean to use those words in a political sense, although, of course, that plays out also, but in the personal and in the practical and just how the parents interact and navigate the world at large and just to make it even more specific, because when we do talk about custody, of course, there's the residential, and then there's the legal, which is the decision making. We see this play out a lot when it comes to making medical decisions and educational decisions and religious decisions, and even residential with respect to what areas do the parents live in, and if they're moving, where do they move to? And those are the main categories I think of dispute that come up in parents with these kinds of cases. 
- Yeah, absolutely. And obviously part and parcel of these are the restrictions that are placed on the other parent, a parent who no longer wants to be observant, what are they restricted at? What can they do on weekends? What the child is being told? And the conflict that involves. So, child is being taught X in school and the mother or the father is saying, no, we don't do that. I had a case with a Muslim family and the mother was adamant, the father could have visits, but the child had to go Sunday to the mosque, to the schools because he was in public school and he wasn't getting the religion, and she didn't wanna agree to the on conduct unless he agreed that he would take the child back and forth to school, which the father did not feel was important. In the Orthodox cases, there's restrictions on food, there's restrictions on how the house, there's restrictions on holidays and Sabbath observance that now affect the other parent. And the courts are grappling with this because it's part and parcel of the child. A child is going to a school, been raised a certain way and goes one week to one parent who observes and one week to a parent that doesn't, and the conflict that that brings up in a child and obviously age, age is very important. And this goes on like the Perlstein case, the Perlstein case was another Orthodox Judaism was prescribed Hasidic in regard to the way the children were going to be raised. Mother was becoming less observant in her lifestyle and the burden there were Perlstein was she would have to show that the observance the father was conducting was detrimental. But again, we're going to a 1980 case where the courts were a bit different. Today, I'm not sure that that would have the same result. As I do, I do not believe Friederwitzer, would've been decided the same way today. Now, if we go to Montana and we go to the Grazovitz case. So that was a case where the father did not want the mother to take the children outside the Jewish faith for any type of observance, the parties were not observant, but he wanted the children to be raised in the Jewish faith. And the court found that in regard to religious education, it must be strictly limited to the best interest of the child and that an award of custody for purposes of religious education should not overpower the other elements of the best interest of the child. Similarly, in the case of Zouma v. Zouma, in which the mother was agnostic, and the court did not take that into a factor against her rights in regard to visitation. So these are a slew of a variety of cases where religious factors were always presented in the case, in the litigation and how the courts decided. Now, I put an old case that's called Likeman v. Likeman, it's a Queens County case, and it had many factors and it was interest because in that factor, there was an ongoing litigation between parents and one of the parents, namely, the mother went to a rabbinical clergy and disclosed her indiscretions under religious practices. The clergy felt that as a clergyman, he had a duty to report it to the court because it was against the tenets of what the children were being raised and supported the father getting custody. The reason that it made such headlines at the time was not only was this a factor in custody, but the mother then sued the clergy for breach of confidentiality, which was ultimately resolved by the fact that she brought somebody else to the meeting and it broke the confidentiality so she could not. But what happened was a clergy man, who felt their personal obligations as a religious leader, required them to advocate on a custody decision because of a violation of religious observance. And it was an interesting case that went again, up to the court of appeals in regard to its decision. 
- So, let's be clear here for a minute. I know we kind of skirted this issue by saying that in today's talk, we're not really getting into what's an acceptable religion versus not what's recognized versus what's not, but in going through these examples, what seems to be the core conflict or the core dispute is one parent being more open and more tolerant, and another parent being more restrictive and more limited. So like just to give some examples of the kinds of issues that are sometimes raised, this can potentially play out with medical interventions. One parent availing themselves to modern medicine, the way that we practice it here in New York State and another parent wanting to work exclusively with a ritualistic healer, so to speak. Sometimes, one parent will come into the office and say, the other parent is engaging in traumatic, neglectful, even abusive practices and rituals. And the other parent is gonna say, it's absolutely not, there's a long history for this, we've been doing it with whatever culture or religion that this other parent is aligned with, and everything's okay. You know, sometimes this will play out, like I was saying before in the educational field where one parent will let's say forbid or significantly limit educational opportunities and other sets rights, and the other parent will support it and will push it. And I think that's really where it gets messy when us as custody evaluators or judges or attorneys are coming to a family with our background, our individual understandings, what we believe is supposed to happen in New York State by law. And then you have a parent saying, no, I don't agree, it's different, and then you kind of have to navigate your way through that keeping like you said, best interest in mind. - Right, and we have that in many new cases that came into the COVID vaccination, where people were, you know, whether they could vaccinate or not vaccinate, there were litigations both ways, parents were withholding visitation or access because the child wasn't vaccinated by mother or father, people were coming in with religious exemptions. And we have that with all vaccinations in school-aged children. We have that in many cases where people come in with a religious exemption and they don't wanna have it vaccinated. Now the court will have to take over as the ultimate parent and decide what happens with the child. Recently I was in court on the vaccination and the judge basically said, you both pick, chose the pediatrician. What does your pediatrician say? Because that's what's gonna control. Ultimately, we have cases that will conflict with the law. A child can't go to school unless they're up to date. Now what happens? I'm not vaccinating because of my religious beliefs. Jehovah Witnesses have issues with medical decisions. Some of them homeschool. Is that the best interest of the child now? If you're forcing the child to be at home, because they can go to school, how will a court address it? And is that a basis for a change of custody under a substantial change of circumstance? These are all issues that the court addresses under these terms on a regular and consistent basis. And once we finish with the case law, we'll start talking about the process. What's the court gonna look at? What should somebody start getting together in terms of evidence, in terms of information to present to both the forensics and the court? Because in many of these cases, one, two or three, either the court, the attorney for the child or guardian, depending on which jurisdiction, the forensics may not know anything about the religion culture that you're discussing and the nuances that are required to understand how it's affecting the child. Because children being raised under that do understand the nuances and do understand what they're being subjected to and how it affects them. And the final case that's listed on our outline is Chava F. v. Jacob F. Again, it's a 2014 case in which the parents were under an agreement to follow a religiously observant lifestyle. Mom in that case decided that she did not want to follow that, and the father moved in court due to the fact that the conduct was being known in the community. In other words, the mother was openly going in a way that was against the principles of the community they were living in, and he was having difficulty keeping his children and registering children in the schools that they have been attending or wanted to be attending, because they didn't want to take children whose parents are on different pages of the religious spectrum. And ultimately, the court granted the father custody and to make sole decisions, saying that religion was not the premise of its decision of custody and the basis there was, it was bothering the children, the children did not feel comfortable and were upset at the mother. It was just like Weichman. In Weichman's case, this is a 14 year old boy who had no problem visiting his mother, understanding her lifestyle and visitation was commencing throughout the case. What he did is express to the forensics is that when she forcibly exposed him to events regarding her lifestyle, that it caused him severe, severe distress. And it was, again, some of these cases, you have complete breakdown, you have parents stopping all contact in the cases that some of the cases that we're presenting here, and are litigated is the child had no problem, it was the parent who wanted to ensure that their lifestyle activities would include the child where the conflict and a question for you, Leah, how do we deal with a 14 year old who's raised his, you know, was raised under tenets of cultural religion, is into his or her entire life, and now says, I'm not changing? - So I think you raise a good point making the distinction between when this is an issue between the parents, as opposed to, or in addition to when this is an issue between the child and one of the parents. We see this a lot where the parents might be in dispute on a particular issue, but the child almost doesn't get involved, stays out of it, doesn't affect them, loves both of the parents, wants to spend time with both of the parents and really does not wanna get sucked into the litigation disputing any one particular issue, which is obviously a very different scenario than when a child, an older child, probably a teenager takes some kind of stance of, I'm not going, I don't want to go, you're different than the way that I was raised, you stand out, me hanging out with you, then causes social backlash in the community where I'm from, and so on and so forth. And so, I think from the mental health perspective, we try to understand where each individual is coming from. So that means each parent, each adult, what their background is, where they're coming from, how they got to where they are, as well as what the child's experiences has been to date, both on the specific issue that's in dispute, whether it's school, religion, culture, or whatever, but also the history of the child's relationship with both of the parents. Because we do wanna be mindful of the potential fallout on a parent child relationship that these other issues have. 'Cause there is often that cascading effect, which is very unfortunate, and I think we have a responsibility to try to protect the parent child relationship as much as we can, so long as like you said, it's healthy, adaptive, and safe. - And again, many of the cases I've encountered in regard to these type of issues. It could be that the parent that is now fighting, or contesting or asking for custody would never have done so. I've had many parents, whether it's the mother or the father who won't deny the fact that the other parent was, "The primary care" during the child's formative years. But they felt that consistency in the lifestyle was so important that they now have to fight for custody because if they didn't, that would be out the window. And that's a factor that comes in many of these cases. One of the judges in one of the cases I'd had said, you know, he said to one of the parents, I wasn't the one who woke up at 40 years old after raising children for 15 years and placing them in schools and giving them assertive lifestyle decided I'm changing. And it was very telling, it wasn't a judge that was intimately involved in religious cases, but that's how she read the papers just before we started. And it was right, why? Because in that case, the mother was changing the dynamics before the divorce started in the household in regard to religious observance of the Sabbath, in regard to her dress, these were changes, it's not like anybody enforced her to do, she was observing for 20 years, the children were in all the type of schools similar, their friends were similar, the mother literally in that case would change her dress as she walked away from the house, when she was 10 blocks away, her demeanor was typically different, her dress was completely different. And again, we have the constitutional rights that everyone has and that's not impaired and they can change, but there's an effect of a child here. Otherwise, in the courts, we wouldn't even address religion. If it wasn't affecting the core of the children and who they identify with these issues, a person has liberties. But just like you can, when somebody has a non-disclosure, they have a constitutional right to speak, the first amendment. But they're late, they're able to contractually obligate themselves to give that up. Now, under Friederwitzer and those cases, you are able to do that on religious observance as well. You didn't have to sign the agreement, you always have the ability to go to court and have a court decide the best interest and custody. And then i.e, religious observance would go to the custodial parent. But if somebody goes and contractually obligates themselves, the current case laws, at least in New York, is that that's not binding, that that contract no longer affects the parent who signed it, and we still go into the best interest analysis where we have to be cognizant that we're not putting restrictions to certain extent on the parent who no longer wants to comply. 
- So, I think this is a good segue for us to kind of get into the specifics. We've highlighted what the disputes might be about, the issues that the parents might raise, how this might play out culturally. So, now that we're aware, now what? Like what are the factors to consider? And I think we can break this into three categories, the legal factors, the parent factors, and the child factors. So how about we get started with the legal factors to consider? - okay, there's many legal factors and obviously every case is different and not every element will be able to explain. Parties upbringing, that's step one. How were both parents raised? Say, you know, we have pictures, we have school attendance records, we have religious organization affiliations, and that gives a sense to the court of what these two people were like, not necessarily that they'll continue that way, but it gives a bit of a sense. Then obviously the marriage ceremony, if they were married under a strictly religious ceremony and both of them and both the ceremony and the reception, it gives again the court, what were both of them anticipating their life to be, their possibility of raising a family? And then we go to the family life. What did it look like? Where were they, where were they affiliated with? What was the household like? Were they attending to whether the cultural norms, the religious rituals, the schools? And culture also goes to the schooling, when we deal with different cultures, you'll see that it's very important for them to go to certain schools or to certain languages or to speak at home. And that has so many more effect in regard to, interaction between parents, which may be a typical to us, who've been raised in the United States. - I imagine communal affiliations is probably important as well. That we're like if I think about Brofenbrenner's model, where we have the individual person in the middle of the circle and the circles, the concentric circles keep expanding, but obviously they're all kind of interrelated, so there's probably a lot of information to be obtained and looking at the community in which the parents reside, the communities with whom there's interaction, and shared activities and shared rituals, the degree of tolerance and or diversity within the community that the parents live in and are interacting with. - Yes, and also obviously consistency is something that's very important. And the reason I say that is, in many of the cases when these factors, and we say legal factors, but they're really the evidence that's gonna be presented, and the picture that's gonna be presented to the court. Somebody will come and they'll say they're extremely observant, and their family was always observant. And then the mother or the father will come with pictures of vacations, and they're far from adhering to the requirements of it. And they expect the judge to understand that. To say, okay, you get a vacation, you get a timeout. So, consistency or presenting the case accurately is very important. People who feel that once they're under the lens of the court, that they're going to put in a different persona that they really were, and that will come to backfire because then the court's going to question, or the forensics will start going into some more details. Well, do you believe in this or don't you believe in it? And is there a gray area, or isn't there a gray area? And this is the point where it's also going back to something we mentioned before. It's extremely important when you're starting with legal factors, to also explain as much as possible what the basis of the religion or the culture is, to get the court educated, to have the AFC educated and to have ultimately the forensics. Because if they don't understand, again, the nuances that are going on, they won't understand that a telephone on Friday night in an observant house brought to a table, okay, what's wrong with that? So, unless they're made aware of it. I had a case a number of years ago, where we litigated a custody case between two persons of the Gypsy culture, and they had their own protocols. In other words, they had their own adjudication, they had laws which said child of a marriage to the first child goes to the father's family. That doesn't supersede New York law. But I brought in a professor of Gypsy culture who explained how these people were raised and how they and their culture adjudicate all the cases. And I think it was important for everybody to hear that, to know how to adapt to the case. - If we transition over to the parent factors to consider, let's be clear that by the time the parents come into the office of a mental health professional, the fact that there is a dispute is well known, and what the dispute about is well known. So sometimes the key guidance is almost, how does each parent handle the dispute and navigate it? So, like we said before, with the cases that we're talking about, and with this presentation we're giving, we're not getting into families where we have concerns about each parent's basic competence to provide adequate and sufficient and safe and healthy parenting. And we don't have concerns about basic parenting skills. And we're assuming general mental health and general stability of the parents, those are not the issues on the table. What we are talking about is when there are significant disputes as the ones we've discussed until now. When you're interviewing the parents, I think one of the main things to look out for, is how do the parents navigate this? More specifically, what extent, to what extent is their rigidity of beliefs? To what extent is either parent able to kind of flexibly think about how to approach the situation, potentially how to navigate it? To what extent is either parent particularly thoughtful about, okay, here's an idea I have, here's a thought, here's a belief, versus this is a practice, versus this is a requirement, versus this is a decision that needs to be made. I think we also wanna think about the extent of each parent's attunement with the child or children, because I want to see how knowledgeable is each parent of the child's experience, which is going to be different than how the parents are experiencing the conflict and the dispute. So, when we're thinking about parent factors, we really are thinking about to what extent is the parent attune with, the child's emotional, developmental, educational struggles, conflicts, and or needs with respect to the religious and cultural and potential racial disparities that we've been talking about? I wanna see each parent's responsiveness to each child's individual needs. Do they respond to it? Do they ignore it? Are they even aware of it in the first place? And kind of related to this is, what value does each parent place on the other parent child relationship? So, despite whatever conflicts there may be in the issues that are being disputed, does that then cloud the value that either parent places on the parent-child relationship with the other parents? Because despite all the issues and all the conflicts, I think we still believe that a parent-child relationship brings supreme and we wanna do everything we possibly can to protect it and to promote it within the context of the issues that we're talking about of course. - And on that, the conflict that I always see in these type of cases is, you have a parent who under the forensic lens is being asked to encourage a relationship with the other, but they have a conflict, and the conflict is, they believe the child has to adhere to certain tenets of their religion, their culture. The other parent is clearly usually during the litigation, making sure that their lifestyle is very understandable to everyone in the conflict. How can they deal with telling the child that what the other parent is doing is not correct under their understanding or of the tenets, whether it's their understanding, whether it's clearly something that they're being taught in school or something that's written in their codes yet encouraging that, how does that conflict is viewed in the forensic spectrum? 
- Well, the example that you gave, I dunno if this was intentional or not, but the verbiage you used was pretty neutral. You didn't say the other parent is a bad parent, but you have to go cause the judge is making me, what you said was the other parent practices differently where they engage in behaviors that we don't engage in. In this house we don't do it this way, in the school that you go to, you know you've been taught to do it one way and the other parent does it differently. And that's probably the most not to be cute here, but the most kosher way to give it over, because then we're not tearing apart the other parent as an individual, but kind of making that distinction. I think a child's ability to navigate that difference will have a lot to do with the age of the child, and of course the individual skill level. Because it can get confusing, if children are being raised in a world where they're being taught right from wrong, and we do it like this, and we don't do it like that. And then they go somewhere and they're getting an opposite message, potentially it's confusing. But I think the younger the child is, more often than not, the child's focus is on the relationship as on spending time with the parent. It's when we age the children a bit, and when they get to preadolescent and adolescence, when they themselves are exploring their own identity and having their own identity formation, that everything kind of changes. So when we talk about like the child factors to consider, obviously we wanna think about the child's historic exposure and involvement in different practices, but we also really wanna get into present day, what is the child's cultural and religious self identity and is the child aligned with either parent or maybe neither parents? I also think we wanna consider the child's understanding of the conflict between the parents and whether or not the child's been protected from exposure to that conflict. And before, when I was talking about the parent factors, I talked a lot about parental attunement, but it's also a child factor in the sense of, does the child feel that the parent is attuned with him or herself or themself? And does the child feel that each parent can see the child as an individual with their own thoughts and their own feelings and potentially their own perspective on the issues that are in dispute? And children will often give over a lot about whether or not each parent is open and receptive and tolerant, and how the parents kind of give feedback and coach the children on how to navigate these issues. - Take that one step further. You have a five year old child, young, raised a certain way, visitations, whether it's equal, whether one parent has more primary type of custody, a five year old comes back to the observant parent and says, daddy gave me X. And now the parent is faced with, I have to tell the child, we're not allowed to do that or we can do that. And it could be food, it could be other activities, but you're talking about a young child didn't process it, then he's gonna say, well, I was taught in school this, why you're doing it? Now, one of the parents, if they want to maintain the level of whether we call it observance, whether we call it adherence of culture now has to become, I don't know if the word is disciplinarian, but if they want to keep the child, that's how they teach the children throughout when there's an intact family, both parents are doing it. Now, if the parent is causing the conflict, and the one who wants to, and let's say, that's the one that's the primary, the child comes home, shows it, they don't want the child to continue doing that, and is that gonna be called alienation? 
- So this sounds like the classic question of how much control does each parent have over the other parent's household? Now, if the example that you just gave me, wasn't about, let's say a kosher item, but was about bedtime, the classic feedback that we give to the parents is, you can't control what goes on in the other household. And the classic message that we give to children is, in this house, we do it like this, and then in the other house, we do it like that. So I think you as the attorney are then kind of in this position where you have to figure out are the disparities that are coming up between the households significant enough that you're gonna go to court to petition some kind of change and potential like judicial oversight or control, because what do you do in a case like that? - Well, you see, in most of these cases, there is some level of adherence that the courts will import because you can't have it as such as bedtime where you can stay up all night, as long as you get up for school the next morning, but in my house, it's 7:30, you're in bed. It doesn't work that way because it's sort of like, you can't be a little bit religious, you can't be a little bit cultural in the sense of if you want to adhere, people have different ways of observing, but if one wants to be adherent, there has to be consistency. So, there's going to have to be that discussion, whether the judge says, you're gonna follow the dictates of what the was required in the school. Which happens in many cases, 'cause the judge and legal factors, a judge will say, well, where were the children registered? Okay, and they'll say school X. Who registered? Oh, we both had to register. So for the last three years, this was okay with both of you. So, at least till we get to the bottom of this, we're gonna follow what's required. And some most of these religious schools do have some conduct requirements of the school. Let's say it's a cultural issue, we go to a cultural expert who says, no, this is not acceptable. So, how does the parent then adhere? It can't be fluffy because then they're not teaching them what they think they should be. On the other hand, they're now being forced to confront this issue. A teenager, you can explain, well, that house doesn't do it, we do, and they can make decisions. But a young child they're going to have to be a point where they're saying something, and then how is that view? - What is interesting if you think about that example that you just gave, this is actually one of the interview questions that we sometimes ask, which is I would ask each parent, how would you handle that exact example? Because it tells you a lot about each parent's motivation and where they're coming from. Whether it's the parent that's, "Breaking the rules" by giving something they're not supposed to. Why would they do that knowing where the child is coming from? And on the flip side, how does the parent that let's say, is continuing to practice the rules, how do they respond to the child, when they come home and say, hey, guess what? I broke the rule. Like, am I gonna get in trouble now? Are you gonna throw me out? That kind of thing. And a little bit you touched on the potential solution for moving forward, which is, is there any like middle ground where we can each reach agreement? So it might not be as restrictive as one parent might want, and it might not be as loose and as tolerant as the other parent wants. But for the sake of harmony for the children, is there a mutual set of standards and practices that we can live with so as to give the children a consistent message throughout the rest of their childhood years? 
- Okay, but again, the court, well, will we come to move? Probably somebody will move to court saying there's a violation. And again, it places on the court, which they don't want to be the religious police, but yet there has to be consistency. And obviously, when you talk about middle ground, we are talking about a contentious custody where everybody's trying to make their point. In other words, obviously, if a parent was following a certain lifestyle, they understand what that requires. So, when they're doing something with the children, they understand that it may be in violation, they don't care, they believe that they're allowed to, they have freedom, they don't wanna be controlled, nobody has a right to control them. And they're right, the question is how it affects the children. Most of the restrictions in the current case law will be on the child, the child shall not be given, the child shall not be, be allowed to comply with this. And obviously it works a lot better with children that are a bit older, who can say, look, I know we're not supposed to, I'm not touching that, thank you. But it really is in the restrictions. But during the process, when the court's ascertaining what to do, these are one is doing something to antagonize the other, and the other one is going to be forced to say things. And this is all viewed on, you know, can we come to, if they could come to a middle ground of where they can live, they probably wouldn't be in this situation and they'd be able to come to an agreement of sorts. - But part of why I think this it's a complicated question and we're sort of at odds here is like you said, this is not about being the religious police and the fight might be about, this is how we're supposed to do it, no, this is how we're supposed to do it, but if you're bringing the psychologist in, if you're bringing the mental health professional in, I would hope that it's not about, how do we make sure you're complying with this religion, but instead it's, what's the impact of this fight? And what are the consequences on this child's development of having these sorts of experiences? And I think that's really the perspective where we come from of how is this affecting the child? What would it mean to potentially reside primarily with this parent, as opposed to with the other parent? 
- And again, how much of the religious cultural aspects are given in the overall assessment? Not the best interest, 'cause again, the judge has many factors and they're also a judge is usually taking into consideration the demeanor of the parents throughout the litigation and how they're reacting, and I think that has an effect on overall custody, whether whatever the conflict may be. But on a forensic value, and let's say that all is equal in terms of parental capacity, that the real fight or the real disagreement is one parent wanting, not either, either one parent not wanting to continue to observe or one parent who's becoming observant and wants to include the family. How much of a factor does that become? And obviously I think we have to divide it by timeframe, obviously a younger child, that is how would you look at as a factor, as opposed to a older child who may identify a certain way and have that impacted? - I appreciate that you did that. 'Cause at first you tried to think oversimplify the question, give me the percentage, what's the weight? How do you weigh this as a factor, all things being equal? But then as you were talking it through, you recognize that it's never, that all things are being equal, right? Even if we have two parents who let's say mental health is not the question there are, as we discussed a ton of other factors that get factored into this formula, the age of the child, the age of the parents, how long they've been practicing a particular way, what the nature of the dispute is, where the child is aligned or not aligned with the dispute, and so on and so forth. So I'd love to give you an easy answer, but there really isn't one because every family is so unique and has so many individual components that you really do need to make yourself aware of. And I think that's the safest way to navigate these issues 'cause when we try to have these overarching rules and guidelines is really when you trip yourself up because then you're not spending the time to get to know the individuals that are in front of you. - And I know that all the guidelines, all the psychological guidelines do say, religious factors has to be considered. And therefore I think it's important when we talk about it. Why don't we move to child factors? What about the child or the children? And again, there may be conflicts, there may be multiple children and it may be different for different children, the age groups or sex of the child, females versus males, it may have different impacts on them. 
- Right, and this is like a little bit what I was going over before, where we were talking about like the ages of the child and the child's experience of parental attunement and their knowledge of the conflict, and I think what really matters is the child's own identity formation and identity development and where the child aligns or doesn't align with the conflict and the degree of comfort that an older child has with their current schooling and their current environment and their current social circle and friendships. Like if you were interacting with a child that for the most part feels comfortable with the way their life is and they have a parent that wants to make a change in either direction, you really need to think about what effect there might be on totally uprooting that child that's well established and adapting and developing in a healthy and functioning kind of way. Like what would that accomplish for that child? - And I think there's a, I know I have it on cases. The conflict that if a child's routine, daily routine or yearly routine is so encompassed with the religious or the culture, but then they get a taste of how it is without it. And you know, when we are arguing in front of a judge, a child who's been told they have to observe X, Y, and Z gets to go for a weekend and has no restrictions and gets to go to the beach all day. There's that factor too, in telling the judge, you know, how do you look at that? Are you gonna have an in camera or Lincoln hearing with the child? So yes, the child may identify, but I think the real factors is to see, what the child was like, what his or her day is like, and what the interactions, because a lot of times, again, mostly in the lower age group, because if this happens in the higher age group, a child can make their own decision, whether it's their best interest or not, they'll go with their feet, and that obviously is a factor. But in the younger ones, it's important for the child, obviously a judge would wanna know, and the court would wanna know what the child feels comfortable with and what identifies. But you always have that other conflict where no requirements or no school that day is very tempting. 
- Right, and you're talking about this idea of restrictions and how teenagers handle restrictions, which is not very well. No teenager I know really likes to be told what to do, but of course we do know that as much as adolescents might resist, they ultimately benefit from structure. So, with the example you gave of no school at all, hanging out at the beach all day is very different than there is school, it's just a different type of school. And I think time is also a big factor here, and I don't mean age of child, but I mean time from when the issue first made it to court until the family gets to the custody evaluation, until that evaluation then gets back to court because a child's experience, let's say the first experience with something different than the way they've been raised, they might like it, but it's a one off as opposed to if this is going on for three years, and by the time we get back to court, the child is already 15 years old. It almost doesn't matter what happened until that point because they're 15 years old. - And how would you view, I've had a few cases where one of the parents are no longer observant or compliant, but they're for lack of a better word, faking it. Now it's there, they don't believe in anything they're doing, but they don't wanna cause the conflict, so they'll act. Now, you know, obviously we can go into whether the children or the child knows that it's an act or not, but what's your perception of that? The parent is coming in the, one of the parents will say, you look, that person, my husband, my wife doesn't believe in any, doesn't do anything, I don't want him or her to have the visits, but when they come in, they're going to play the part. 
- So let's think about the language with which you presented that example. When we talk about faking it kind of pejorative, but if we were to reframe it and understand it as being respectful, suddenly takes on a whole new meaning. And most of us adults are aware that time and place oftentimes affects and dictates how you act, how you behave, how you dress, we're familiar with this concept of being respectful, especially if you're entering into a religious institution or you're meeting with a leader of a community, like it's not unheard of to modify what you might normally do for the sake of demonstrating respect. And I think that's kind of how I think of that and that if anything really gives an important message to a child of yes, I might be different, yes, I might practice differently, but I respect you, I respect where you're coming from, I respect the community within which you're being raised, and out of respect, I'm doing certain things that on my own, I might not do. - Okay, why don't we go through some of the interview questions of what would be done. Again, going back, it's important that everybody gets some information that they understand the questions, and it's not unheard of for forensics to inquire about certain religions or cultures from their own independent sources so that they can become familiar and understand how to do these questions. And in the court, the burden is on the attorney. The court's not going to go out and do independent research or bring in experts, they expect the person who's advocating to do that. And there are experts I can tell you in all of these areas, and sometimes it's important for the court. And just as an aside, there's training now, going on for the courts themselves, judges are being taught about different cultural elements of their constituents, whether counties, states, and cities in regard to understanding. And one recent example, there was a training in regard to the Chinese culture, because many Chinese litigants do not look at the judge when they're being addressed. And the judges took that as an offense and disrespectful, and they brought in for training someone who explained that under the Chinese culture, certain elements of looking straight into the eyes is the utmost of disrespect. And I think that that's something that just exemplifies how everybody needs to understand the case. Now, obviously time constraints are difficult for a court, but I think it is important to know because we're using our bias or our own perception of growing up in the United States to the people in front of us, which may not, or may or may not have the same understanding. 
- I get this question a lot with co-sleeping. Co-sleeping is such a hot issue because I think many people consider co-sleeping past a certain age as potentially even traumatic and disruptive of promoting a child's independence, and that's not how we do things, and it's not healthy and they need to have their own space and so on and so forth. But I think a lot of people don't recognize how that that's very much a cultural variable and we get into trouble when we try to turn objective and make a rule hard and fast, this is right, this is wrong, as opposed to thinking about what community are we talking about? What's the cultural background? How were, how is each parent raised? What have they done to date and so on? And so, like you were saying, it really is important to take the time to understand where the parents are coming from, how they form the ideas and the beliefs and the practices that they've thought about, and that they've implemented because that really sheds light on what's guiding the decisions, but also what's promoting and maintaining the conflict. Is this a new idea? Is this an old idea? So it's like earlier we were talking about any precedent that might have been set, historically, what was done, but I'd say so pre-conflict, historically, what was done. Then when did the conflict get started? How did it get started? What got it started? Once there was conflict, how did each parent handle it and navigate it, and how did it inform their decisions and their own kind of parenting practices? And it really is important to think about who does each parent rely on to guide them? So are they kind of making it up as they go along? Which a lot of us do, or are they in touch with a mental health professional, an expert, a child rearing expert, a rabbi, a whomever, a guidance, a spiritual leader, where they might be able to demonstrate that this is something that they've given thought to. It's not an impulsive, I wanna do this, therefore I should, but I've thought about it and I've considered it and I've weighed my options and I've spoken about it, and then it just, it seems like the push for a particular parenting practice is more mindful and considerate than I just want to because my ex doesn't want to. - And going on that cultural, this also affects more so I think in the custody forensics, but it does have an effect like when there's potential allegations of abuse, where cultural norms also come in, you mentioned the co-sleeping. I had a matter where, I mean, it was a disabled child, but she was kissing her father on the lips and the expert who was an educational psychiatrist came and was asked about the question, forget about the disability and the age IQ of the child. So in the Greek culture, this goes on their entire life. So it depends, and her answer was, it depends on who you're saying or what happened. No, I would not consider this abuse in every case. So, these are the, and again, a court in New York would hear that, and we did, we were litigating this in court. The judge listen, you know, because our norms may not say that this is something appropriate. I had one case few years ago, where a child was hit by the father and somebody called the ACS. And the father was not somebody who had a history of abuse, not somebody who was often used corporal punishment. And I asked him what occurred, what really occurred? And he said to me, his child went around the house and wrote Satan in invisible and up and down every wall in their house. And when the father came home to aggravate him, he put on the invisible light and the father saw him and he spanked the child. And why was he saying? 'Cause in his religion, Satan is like the worst word you could use and putting that on your house is, and he lost it. I mean, he didn't say he didn't hit him, but there was a cause for it. And once we understood it, we were able to present it to the court in a different way than this is an abusive father who has a history of the case. And I think that's important, and one of the factors that when you're looking at a case, the history of the people, their culture, their religion needs to be understood. - It kind of sounds like and I agree with you that the best path forward is, one where we're not reactive, but we take the time to understand and to ask the questions, and to make meaning. And this comes up a lot, I think, for any and all professionals involved in the case, whether it's the judge, the attorney or the mental health professionals, because we need to be aware of what assumptions we have about the individuals before we ever even interact with them. And like at the start of this, I talked about being careful, not assuming homogeneity in any one group of people or persons, because there really is a wide variability amongst any grouping. Within families, there can be a wide degree of diverse practices and traditions, and even beyond that, this is, it's like a mental health term, but when we talk about transference and counter transference, it is important that we're mindful of our personal history and views that directly affect our perceptions of other people and how we react to them. And flip side, how the clients that we're meeting with, how they're bringing their own history of experiences with mental health professionals, with people of authority and how that influences them and their ability to participate in an interview and offer questions. So, we really want to think about what assumptions we might be making, what mistakes potentially we're making. And I think generally this like falls into the category of pitfalls to avoid. So, step one, don't make assumptions. Take the time to gather data before you reach conclusions because attitudes and beliefs that we have absolutely impact not only our interpretations, but our collection of data. And just to kind of get into more specifics, we wanna think about perceiving and interpreting behavior potentially in stereotypical ways and not doing that. We wanna think about potentially failing to understand cultural communications and meanings. And like that's what you were talking about before with making eye contact, not making eye contact, shaking hands, not shaking hands, where they sit in a room, do they email, do they phone call and so on? And as always, you want to avoid using minimal or selective data to reach a conclusion. So, it should feel like a gushing waterfall of data that you then filter through and make sense. If you start kind of narrow, then you've almost predetermined the outcome before you've even gathered your data. - And also, a factor that needs to be considered by the practitioner is bias. When you read a report prior to the presentation to the court, you read a report of a forensics. You need to understand there may be a bias, you may be reading, and obviously there is an ability for forensics to have what we call peer review and look at it. You'll have that in many different cases where you may have somebody who's anti-religious or somebody who doesn't believe that culture is, something that they want to go by, and all of a sudden there was, there's a report that slams one of the parties. I had one recently where all the factors that are to be considered were to one parent and yet the award, the recommendation of custody was to the other. And it was a forensics who basically on the stand did not believe a mother should lose the children, not looking at the best interest, and the analysis of independent. You can have that in religion, you can have that in a court too, you can see where the courts are going in a certain way, and there's a bias and you need to be prepared for that, you need to be able to sort of call 'em out and say, I don't think you're considering these factors. We're gonna go. Before we end, we'll go through some of the legal presentation, but bias is something that the antennas of a practitioner should be on when dealing with these sensitive type of issues where people's own political and beliefs can have an effect. - Which means the responsibility is on us as professionals to identify our own bias and to think about different ways in which the data collection process and interpretation process potentially may be skewed, such as in this cartoon saying, I've heard the rhetoric from both sides, time to do my own research on the real truth. And then you go to Google and literally the first link that agrees with what you already believe saying, jackpot, see, now there's scientific data backing what I say. Any scientist worth their weight understands that you consider all the information, the information that supports your hypothesis and the information that challenges it. Otherwise it's just not, it's not quality data. So, I guess to get into more of the specifics about the solution to these potential pitfalls, it's be careful, and be more careful. And like I was saying, really being aware as best as you can, of the assumptions you're making, the reactions that you might be having to the individuals that are in front of you. And most importantly, your awareness of your own lack of knowledge, of dimensions, of culture, and or religion and how race is, or isn't a factor in the families that you're working with. You have a professional responsibility to learn specific information about the specific family and the specific individuals you're working with. And as always, parental competency continues as the foundation of the custody determination. I also can get into a little bit modified techniques of conducting forensic assessments, these child custody evaluations, like we've been saying throughout a lot of it is about reading about the culture and the religion of the family that you're evaluating. But beyond that, conducting extended interviews with collateral sources, whether it's clergy members and or family and family and friends that can inform on how the family has been practicing historically, where they come from, what their beliefs are. Something that I also find very informative is conducting observations. So, it's kind of a given that we'll do an observation between a parent and a child. What's not always a given is where that observation takes place. So standard practices, it takes place in the evaluator's office. But if we are dealing with an issue, like the ones that we've been talking about until now, it really might be worthwhile thinking about doing an observation during a particular day of religious observance or during some kind of communal, cultural, ritual, or something like that, just so that you can see everyone's degree of involvement and comfort, both the adults and the child. I think it's important to examine the degree to which the parental figures demonstrate consistency and or inconsistency. So like you were saying before, sometimes a parent will put up a fight, but they themselves are not actually practicing the way that they say they want to be. And then separate from participating in an event with the family, sometimes it's even helpful just to attend a religious service where the family practices, so that you get a sense of what the issues are, what this community looks like, what it is you are aren't evaluating. And as always, gathering information concerning the range of religious practices within the specific culture or religion, like data's your frontier, get as much data as you can so that you don't narrow your focus prematurely. 
- And I think another word for the attorney, this information, if the forensics is not doing it, or you get the feedback that they don't understand it, and they may even say to the participants, I don't know what this is, I don't know what this religion, I don't know what, it's your duty to make sure you get experts involved. Now, obviously you can't violate any court orders of not reaching out. But if you can give your client names of experts that they can look at or call. In court, you are the one who's going to be bringing in the experts. And you're gonna pick people who are qualified, who are going to explain to the court, and it happens in so many different variations who explain to the court what's going on. And then you'll have a judge who has his or her eyes open as to what it is, because once you have an expert, which is unrefuted as an expert, which is a separate topic, but we're saying someone whose degrees and recognition and publications clearly established them as an expert in the field, giving something that may be antithesis to either the forensics or the court. They may not believe, they may even think that it's bad, but that's not the job at the case, and their job to the case is to apply it. The child's wishes and desires are important, that will depend on the age and how much weight in all of these cases make sure although it's required, but I would make sure that a Lincoln hearing happens. Mostly depending on the level of the case, sometimes it's better to have the court do it after the trial, after they heard all of it so that they know which questions to be asking or what they wanna hear from the child, as opposed to before, where they're generally not gonna bring the child back and they may have missed out, and also understand that custody has many facets. It's not only residing, it's decision making, where, there would be one where the children feel comfortable, they lived in that place, in the same house, in the same apartment, in the same neighborhood, but that parent will make educational decisions, religious observance, obviously that's something that if the court orders, they have to feel comfortable that everybody's going to comply with the court orders. But there are many different when I say, custody, final decision making, it can be split, education, religion. In many cases I have where, education and religion is with one parent and medical and social activities are with another, usually more so where the parties are not so antagonistic against each other, where an order is an order and that they would comply. But again, remember when you're dealing with these type of cases and the parties say, oh, if I don't get sole custody, I lost, it's not always the factor. And remember, violation of the court orders where it clearly going against what the written word of the court is, may in fact result with a change of custody after the cases, because the court has decided that that's the best interest of the children and that they should follow a certain path. Attorney for the child, guardian in some function. Now, that person is advocating for the child under New York law, they can't substitute judgment unless there's a factor that they believe that the child can no longer fully say their opinion, but they're the mouthpiece for the child. They're also investigated. In other words, they will find out how the child's doing in school, what the child, you know, if the child is having issues because of the cultural differences and it's affecting their interrelationship with their peers, their school, that's something that the AFC will also be advocating and discussing, and finding out and feeling what's going on in regard to the, again, the best interest of this child. And these are important factors bringing in the records for the child's school is an important factor in most of these cases. And obviously the forensics that will come and testify during that, whatever the report says, or whatever the parental strengths and weaknesses. But that's a point when you're on trial, that you can have pointed questions presented to the court and the forensic would answer and maybe enlighten of how to deal with a case. Again, custody decision making. What about the child's therapist? Now, obviously there's a reluctance to bring in a therapist to ruin the relationship, but a forensics gets a HIPAA release, gets to speak to the forum, gets to speak to the therapist. How is the child reporting to somebody who maybe they've had a relationship for many years and saying what this conflict is doing and where they really wanna be. You know, the forensics sometimes are in an issue, the child doesn't know the person coming in for an interview for a limited period. A therapist may have had a relationship for many years can give us also a feel. Now, sometimes we get the records in, by subpoena on certain issues when both parties agree, we have had judges allow us to bring in the therapist for limited questioning. You know, when that risk assessment of whether that would hamper their continued involvement. Sometimes there's a therapist from a few years ago where that issue doesn't apply, who has detailed notes of what was going on with the conflict. Those are the factors when you're presenting and we're at trial mode on this issue and how this will affect the outcome. - And that trial is really when I would want you to ask that question that you asked me, which is, to what extent does race, culture, and or religion impact, whatever recommendations the custody evaluator reached? Because if the custody evaluator says, I didn't consider it, or it wasn't a factor, we have a huge problem. Because if there's anything to conclude from today's presentation, it's that you can't ignore the implications of race, culture, and religion, especially when those are issues in dispute. So that would be like a custody evaluator saying, oh, I didn't consider the mental illness because really what matters is whether or not the parents love their children. And of course that matters, but so does their mental health. - Right, and going through that, you'll say, well, which protocols did you follow? And does that not say the religion? Because we've been spending five, 10 days here talking about this issue in regard to the child and you didn't give it any weight. And again, the bias issue is something that this is the time unfortunately, while the report is being done, and the person is on the stand where you may ask heated questions, which may impact how the report is viewed by the court. Hopefully not to the extent that it's thrown out and the judge has to reassign someone, but it impact, remember courts today do not have to follow the forensics. Although in something as complicated as this, you don't expect the judge to have enough time to really weigh all the factors, although it has been done. In religious cases where the forensics going back for a second to Weichman, there were 10 days of testimony by the forensics, which did over two evaluations because of the length of time of the case that was being litigated and the questions and answers that went back and where the child felt comfortable and identified were all testified by the forensics and it had an impact on the judge's ultimate decision. The appeal never overturned the decision to the extent that it felt that such restrictions are no longer constitutional. And I believe that's their new level of thinking in the cases that came out from Kone and Weisberger, and now Weichman did not. It was saying to the lower courts, we don't believe this clause is constitutional, but it didn't impact the ultimate custody decision and adherence of religious values that the lower court after I think it was something like 64 days of trial decided. Okay, that concludes the presentation. Our emails are included. If anyone has questions, please feel free to do so. 
- And I strongly encourage everyone to look at the list of references that we included for further reading, because if you're going to navigate these issues at all, you gotta equip yourself. And a part of that is doing the research and keeping in mind what to look out for and how to navigate these really sticky, contentious matters. Thank you everyone for listening. - Thank you. The topic that's going to be presented is one of the dichotomy while cultural, religious, and racial aspects in a custody matter requires the court to enter into an unusual role while there's clear separation of church and state in the United States, in which a judge should not be involved in any religious matters. Custody is different. For in these matters, as the presentation will exhibit, it is imperative that the people involved, including the judge become knowledgeable in the various intricacies of religion, culture, and racial aspects so that they can make a best interest, determination on custody. Additionally, while the cases that will be examined will clearly exhibit that the court has and does imply and determine religious restrictions and religious compliance in the raising of children that have been raised under those tenets of religion and culture throughout their lives. Thus, unlike other cases, the court will become knowledgeable and informed, and it is the attorney's job to ensure such and to the effect that if there is a bias in the procedure, through the attorney for the child, the forensic evaluator, or the judge that that be brought to the limelight and dealt with in the context of these cases.

Presenter(s)

Dr. Leah Younger
Licensed Psychologist and Clinical Director
Younger Psychology
Martin Friedlander
Partner
Martin Friedlander, PC.

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