Publications

Mr. Tippins has written extensively on family law topics over the past two decades. His three-volume treatise, New York Matrimonial Law & Practice was initially published in 1985 and is updated annually. It has been widely cited by the New York trial and appellate courts, including New York’s highest tribunal, the Court of Appeals.

He has authored countless articles pertaining to diverse family law topics, many with respect to evidentiary issues, cross-examination technique, and custody evaluations.
 
Together with Jeffrey Wittmann, Ph.D., Tippins is co-author of "Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance," a groundbreaking article published in the Family Court Review by the Association of Family and Conciliation Courts. This article sets forth an Empirical Forensic Model for the evidentiary analysis of custody evaluation reports and testimony designed to ensure that only empirically supportable, demonstrably valid conclusions are admitted into evidence - and to ensure that "junk science"is kept out!

Even before its official publication by AFCC, an early draft of the article was used when Mr. Tippins and Dr. Wittmann taught at the NYS Judicial Institute, resulting in its citation in a groundbreaking NY Family Court decision in Linda W. v. Frank T., 5 Misc.3d 1031 (N.Y. Family Court, Suffolk Co., Simeone, J., 2004) 

“Relying on experts without testing the reliability of their methods and procedures cloaks experts' value judgments under the veil of science and risks that their personal and professional characteristics bias the evaluation and the importance of information learned’ (citation omitted). A Court is obliged to hold the mental health witness accountable for the application of empirically supportable principles and methods and to insist that the experts whose opinions can change lives support each and every one of their inferences with specific empirical evidence. The Court must demand that the expert's reasoning is scientifically valid (See, Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance, Tippins and Wittmann, p. 38?39). Here, with substantial individual rights hanging in the balance, it clearly becomes the responsibility of this court to keep unscientific opinions out of the process entirely. The best interest standard is a legal and socio-moral construct, not a psychological construct.”

Tippins’ regular feature column in the New York Law Journal has dealt extensively with these issues. New York's Appellate Division cited his work in the nationally celebrated Bridget Marks decision (John A. v. Bridget M.). Cautioning against undue reliance upon expert testimony in custody litigation, the court stated: 

"In this regard, it should be noted that there is an ongoing debate in both the legal community and the mental health profession as to the implications of the expert psychological opinion in custody litigation, especially when the opinion is a conclusion as to the ultimate interest (Tippins, Matrimonial Practice, Custody Evaluations - Part IX: Babies, Bathwater and "Daubert," NYLJ, November 5, 2004, at 3; see also Tippins, Matrimonial Practice, Custody Evaluations - Part X: "Daubert" and its Progeny Parsed, NYLJ, January 7, 2005, at 3)..."

Mr Tippins writings were also cited in S.M. v. G.M., (N.Y. Supreme Court, Suffolk County, Pines, J., NYLJ, 04-05-05, p. 20, col. 1), marking the first time that a New York court has held that Daubert, rather than Frye, is the proper evidentiary standard for assessing the admissibility of testimony by a custody evaluator.

Below are abstracts of a number of his articles. 

For copies of these or other publications, contact Mr. Tippins at tmtippins@matlaw.com 

"Custody Evaluations – Part I: Expertise By Default?,” (NYLJ, 07-15-03, p. 3. col. 1) –
 
Mental health opinions can have profound impact in custody litigation. They often spell the end of the line for the disfavored parent because of the indicia of authoritativeness they are perceived to carry. However, this aura of science is based on the assumption that the opinion rests on scientifically reliable and valid principles and procedures. As this article delineates, that assumption is often false. 

“Custody Evaluations – Part II: Standard of Admissibility,” (NYLJ, 09-4-03, p. 3. col. 1) –

This article undertakes a preliminary discussion of the admissibility of mental health testimony under the Frye standard in the face of intense controversy within the behavioral science field relative to the proper limits of expertise. 

“Custody Evaluations – Part III – Procedural & Evidentiary Issues,” (NYLJ, 11-06-03, p. 3, col. 1) –

When a court uses the written report as a substitute for direct testimony, significant hearsay issues emerge. It then falls upon the aggrieved party to ferret out the impermissible hearsay bases that render the opinion inadmissible. This article advocates the traditional common law method as a means of minimizing hearsay issues and diminishing other problems that attach when “shortcuts” are substituted. 

“Custody Evaluations – Part IV - Full Disclosure Critical,” (NYLJ, 01-15-04, p. 3, col. 1) –

 The only way proper cross-examination can be planned and a responsive rebuttal case built is through analysis of the evaluator’s report and its conclusions, the underlying bases of the adverse opinion, and the totality of circumstances surrounding the evaluation. Therefore, the first and most critical step is to carefully analyze the entire evaluative process, not simply the report but the entire process, that led to the conclusions expressed in the report, as well as each and every potential basis for its conclusions and facts that contraindicate those conclusions. This article advises the practitioner to obtain all underlying information, including the raw data upon which the evaluator has based his or her conclusions.

“Custody Evaluations – Part V – Witness Qualification and Frye Issues,” (NYLJ, 03-16-04, p. 3, col. 1) –

 This article focuses on the often-overlooked distinction between a witness’s qualifications as an expert and the separate and distinct issue of whether there is a reliable and valid underlying basis for each inference and conclusion expressed. Too frequently, once the witness has been “accepted as an expert” by the court, what ensues is an intellectual free for all, with the witness being allowed to opine on matters that fall beyond the boundaries of his or her expertise. Looking to the issue of witness qualification, a distinction must be drawn between the question of whether the witness is qualified to speak from the knowledge base of his or her profession and the discrete but related issue of what that specialized knowledge base has to say on the subject at hand that is grounded on scientifically valid principles as established by the empirical research of the profession.

“Custody Evaluations – Part VI: Mastering the Professional Literature,” (NYLJ, 05-07-04, p. 3, col. 1) –

When a trial lawyer considers the role of learned treatises and other professional writings in relation to an expert witness he or she usually thinks in terms of using such material to impeach the witness upon cross-examination. Certainly, this is a vital and often potent use of such professional writings. In the case of child custody evaluations, however, the substantial body of mental health literature occupies an even more central position. In determining the admissibility or credibility of an expert’s opinion, the challenge is one of deconstruction, breaking it down into its component parts. To deconstruct the opinion requires an understanding of how it is – or ought to be – constructed in the first instance. This article focuses on the necessity of acquiring an intimate familiarity with the literature of the mental health profession as a foundation for deconstructing adverse expert opinions.

“Custody Evaluations – Part VII: Impeachment by Treatise,” (NYLJ, 07-15-04, p. 3, col. 1) –

This article explores the evidentiary doctrine and trial techniques pertaining to impeachment by treatise when confronting the testimony of a custody evaluator. It focuses on discrediting or weakening the witness’s testimony by showing that learned writers in the field have expressed contrary views and discusses the requisite foundation for this mode of impeachment.

“Custody Evaluations – Part VIII: Learned Treatises – Denial and Deceptions,” (NYLJ, 09-02-04, p. 3, col. 1) –

The previous article addressed impeachment by treatise in the context of the forensic custody expert, noting the foundational requirement that the witness concede that the proffered text is “authoritative,” a term that means nothing more than that it is professionally reputable. Assuming the text is reputable, a refusal to acknowledge it may be motivated by an effort to shut down the cross-examination or it may result from ignorance of the literature that embodies the specialized knowledge of his or her profession. Whatever the reason for the denial, the cross-examiner must demonstrate its illegitimacy. This article presents a number of approaches designed for that purpose.

“Custody Evaluations – Part IX: Babies, Bathwater and Daubert,” (NYLJ, 11-05-04, p. 3, col. 1) –

Frustration with biased and value-driven mental health opinions has led some to urge that custody evaluators be shown the doorway out of the courthouse. However, rejecting potentially valuable, empirically supported, information that the psychology discipline may have to offer is an overly simplistic solution to the problem. Such an extreme reaction is unnecessary in view of the fact that the courts are amply empowered and obliged by modern evidentiary standards to act as gatekeepers who welcome ‘good science’ into the realm and cast pseudoscience into the moat of exclusion. This article urges that vigilant judicial precision, not categorical exclusion, offers the optimal solution.

“Custody Evaluations – Part X: Daubert and Its Progeny Parsed,” (NYLJ, 01-07-05, p. 3, col. 1) –

 Daubert’s standard of evidentiary reliability provides a vital tool in pursuit of that objective. The fact that many New York trial courts are now looking to Daubert and applying it is all to the good and ought to hasten the day when it is formally adopted, either by the Court of Appeals or by legislative enactment. This article urges that the custody court should embrace the enhanced evidentiary stringency of Daubert to protect the fundamental familial rights that hang in the decisional balance.

"Custody Evaluations – Part XI: "Daubert and the Rise of Empiricism,” (NYLJ, 03-03-05, p. 3, col. 1) -

Daubert established a standard of evidentiary reliability that equates, in the case of scientific testimony, to scientific validity, mandating “that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.”  It is worth emphasizing that Daubert looks to the scientific validity of the knowledge of the “discipline,” not to non-verifiable intuitive beliefs of the witness supported only “by the ipse dixit” of the expert. This article examines the empirical standard of reliability that the Court itself has characterized as an “exacting” one.

"Custody Evaluations – Part XII:  “Daubert’s Empirical Imperative,” (NYLJ, 05-05-05, p. 3, col. 1) –

This article continues discussion of the empirical standard established in Daubert and examines whether specific best interest opinions by custody evaluators can pass evidentiary muster under Daubert’s second direct empirical assessment criterion, to wit, error rate analysis.


Course Books & Audio Programs

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Coping with Mental Health Witnesses, Reports and Testimony In Contested Custody Cases (2001) – This program covers the role of mental health professionals in the legal determination of child custody, the scope of judicial authority to invoke mental health services and the rights of litigants with respect to the process, including the role of counsel as an observer of the clinical interview, access to the report, and various approaches to the use of reports in the judicial proceeding. It explores in detail the evaluation process itself, including the proper role of the clinician and the ethical parameters that guide the evaluator’s professional behavior, as well as the clinical interview and psychological testing methods. The methodology of these key components are delineated and discussion then turns to how to persuasively present direct testimony in the courtroom, how to cross-examine effectively, and how to utilize emerging Frye/Daubert issues to impact both admissibility and credibility. The program concludes with an actual courtroom demonstration of direct and cross-examination of the mental health witness and a panel discussion of the topic.

How to Analyze & Challenge Custody Evaluations (2005) – This course explores in depth the custody evaluation process, including the expert’s role, the ethical and empirical constraints on the opinions expressed, and the methodological protocols that guide the evaluation process.  The program emphasizes how to discern deficiencies in a given evaluation and how to exploit those deficiencies through cross-examination and the presentation of a formidable forensic trial team.  Emerging Frye /Daubert issues, with their potential impact on both admissibility and credibility, will be considered in the context Empirical Forensic Model.  It concludes with a courtroom demonstration that shows how to translate these dynamic concepts into actual question-answer formats.