Forensic Expert Witness Immune From Negligence Charge in Child Custody Case

This forensic neuropsychology case involves a child custody dispute over the visitation rights that a father had to see his young daughter. The father’s visitation rights were at issue because the mother had accused him of sexually abusing their daughter. The court appointed a forensic psychologist to perform psychological examinations on the mother and father and give the court a report of his findings and to make recommendations about custody arrangements for the daughter. The forensic psychologist administered the Minnesota Multiphasic Personality Inventory and a Penile Plethysmograph (a test that measures a person’s sexual arousal in response to different forms of stimuli) to the father. The forensic psychologist concluded that the father should be denied both visitation and custody rights because he fit the profile of a sexual abuser. The judge ruled that the mother would get physical custody of the daughter and the father was awarded full, unsupervised visitation rights. The father sued the forensic psychologist for negligence claiming that he had negligently administered the evaluations causing him to lose custody of his daughter, causing him emotional distress, and causing him to be mistakenly identified as a sexual abuser.

Question(s) For Expert Witness

1. Can a parent in a child custody case sue a forensic expert witness for negligence if the expert witness administers various tests to the parent and concludes the parent should not be awarded custody?

Expert Witness Response

This case concerns a well-established rule of law that judges are immune from lawsuits over all actions taken in their judicial capacities. This rule of absolute immunity derives from the need to protect functions intimately related and essential to the judicial decision-making process. This immunity does not apply only to judges. It also applies to others who act in a legal case in judicial decision-making roles. The determination about whether a person is entitled to this kind of immunity from lawsuits depends on the specific work or function performed by the person in a court case. Usually, if a person’s acts were done in the performance of an integral part of the judicial process, the immunity applies. When a forensic psychologist in a child custody case assists in making a custody recommendation by doing various psychological evaluations, this type of discretionary judgment is usually held to be comparable to that of a judge. Since a forensic psychologist in a child custody case acts as a ”neutral fact-finder” for the court, this is usually held to be an integral part of the judicial process and a function associated with judges. Therefore, the forensic psychologist is usually immune from all lawsuits over their actions in the case. In this case, since the forensic psychologist had a quasi-judicial role of administering the tests and making a custody recommendation, he is probably immune from being sued for negligence by the father.