1


1 COURT OF COMMON PLEAS

2 HAMILTON COUNTY, OHIO

3 DIVISION OF DOMESTIC RELATIONS

4 - - -

5 (redacted) (redacted), :

6 PLAINTIFF, :

7 -VS- : CASE NO. DR9702118

8 TERESA (redacted), :

9 DEFENDANT. :

10 - - -

11 Deposition of MICHAEL BORACK, a witness

12 herein, taken by the defendant as upon

13 cross-examination pursuant to the Ohio Rules of

14 Civil Procedure and pursuant to agreement and

15 stipulations hereinafter set forth at the offices

16 of Dominic J. Mastruserio Co., LPA, 306 East 14th

17 Street, Cincinnati, Ohio, at 1:55 p.m. on Friday,

18 November 2, 2001, before Lisa Conley, RMR-CRR, a

19 notary public within and for the State of Ohio.

20 - - -

21

22

23

24




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1 APPEARANCES:

2 On behalf of the Plaintiff:

3 Dominic J. Mastruserio, Esq.

4 of

5 Dominic J. Mastruserio Co., LPA

6 306 East 14th Street

7 Cincinnati, Ohio 45210-2010

8 On behalf of the Defendant:

9 Richard Ducote, Esq.

10 731 Fern Street

11 New Orleans, Louisiana 70118

12 Also present:

13 Ms. Teresa (redacted)

14 - - -

15 S T I P U L A T I O N S

16 It is stipulated by and between counsel

17 for the respective parties that the deposition of

18 MICHAEL BORACK, a witness herein, may be taken as

19 upon cross-examination pursuant to the Ohio Rules

20 of Civil Procedure, and pursuant to agreement; that

21 the deposition may be taken in stenotypy by the

22 notary public-court reporter and transcribed by her

23 out of the presence of the witness; that the

24 transcribed deposition is to be submitted to the




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1 witness for his examination and signature, and that

2 signature may be affixed out of the presence of the

3 notary public-court reporter.

4 - - -

5 I N D E X

6 WITNESS CROSS-EXAMINATION

7 Michael Borack 4

8 - - -

9 E X H I B I T S

10 DEPOSITION EXHIBITS MARKED

11 No. 1, a copy of a 2-page document entitled 12

12 "How To Assess Allegations of Sexual

13 Abuse in the Context of a Custody

14 Dispute."

15 No. 2, a copy of a 3-page document entitled 12

16 "PAS."

17 No. 3, a copy of a multi-page document 15

18 entitled "Michael G. Borack, Psy.D.

19 Custody & Domestic Violence Library."

20 No. 4, a copy of a multi-page document 17

21 entitled "Michael G. Borack, Psy.D.

22 Custody & Domestic Violence Library."

23 - - -

24




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1 (Witness sworn.)

2 MICHAEL BORACK

3 of lawful age, a witness herein, being first duly

4 sworn as hereinafter certified, was examined and

5 deposed as follows:

6 CROSS-EXAMINATION

7 BY MR. DUCOTE:

8 Q. Would you state your name and

9 address, please.

10 A. Michael Borack. 636 Northland

11 Boulevard, Suite 110, Cincinnati, Ohio 45240.

12 Q. Okay. I assume you've given your

13 deposition before?

14 A. Yeah.

15 Q. Approximately, how many times?

16 A. Dozens, I don't have an exact count.

17 Q. Okay. As you know, my name is

18 Richard Ducote. I represent Teresa (redacted) in

19 this case. I'm sure you understand the purpose of

20 the deposition is to allow me to ask you questions

21 about this case. I'm going to ask you to do a

22 couple of things so that the deposition goes

23 smoothly.

24 First of all, if you would please




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1 wait until I finish asking the question before you

2 answer it. Second of all, you have to answer in

3 words as opposed to sounds and gestures. If I ask

4 you a question that you don't understand, let me

5 know, and I'll try to rephrase it. Fourth, please

6 give complete answers to questions that you

7 understand. If you have to any way qualify an

8 answer, please do so now, so at the conclusion of

9 the deposition when it's transcribed, it can be

10 assumed that you gave complete answers to questions

11 that you understood. Okay?

12 A. (Nodding head.)

13 Q. You received your doctor of

14 psychology, PSD --

15 A. Psy.D., yep.

16 Q. -- at Nova University?

17 A. Um-hmm.

18 Q. You have to answer in words.

19 A. Yes.

20 Q. Okay. Was that a -- Were you in

21 residence for that program; did you actually go

22 down to Florida and study?

23 A. Yes, yes, I did.

24 Q. How long were you actually in Florida




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1 working on that degree?

2 A. In Florida, it's just shy of four

3 years.

4 Q. Did you do a dissertation?

5 A. Yes, I did.

6 Q. What was your dissertation?

7 A. It was a meadow analysis of the

8 outcome literature for assessing the effectiveness

9 of treatment programs for abusive men.

10 Q. And was the program also a clinical

11 program?

12 A. Yeah.

13 Q. Do you consider yourself an expert in

14 the area of child sexual abuse?

15 A. In the -- No, I do not consider

16 myself a specialist in child sexual abuse.

17 Q. Have you ever treated any children

18 who have been sexually abused for the effects of

19 the sexual abuse?

20 A. No, I have not.

21 Q. You were asked to do a custody

22 evaluation in this case?

23 A. Yes, I was.

24 Q. And what questions did you attempt to




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1 answer in the custody evaluation?

2 A. What would serve the best interest of

3 the child in terms of custody and visitation

4 arrangements.

5 Q. Any other questions?

6 A. Well, there were specific components

7 to it. One of the questions that was specifically

8 asked by the Court was, would it be appropriate for

9 the children to continue in their treatment with

10 Dr. Kowalsky, and, otherwise, the order itself did

11 not specify. Now, of course, the parties came in

12 with allegations that became questions that I

13 needed to answer.

14 Q. Allegations of sexual abuse, correct?

15 A. Well, that was one component, that

16 was one allegation, yes.

17 Q. And allegations of domestic violence?

18 A. Yes.

19 Q. Did you refer out the sexual abuse

20 issue to any other professionals?

21 A. No. The work had already been

22 completed.

23 Q. In the course of your evaluation, did

24 you attempt to ascertain whether these kids had




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1 been sexually abused?

2 A. Not by directly evaluating them, but

3 yes, I did.

4 Q. What protocol did you use?

5 A. The standard recommendations from

6 experts like Phillip Stahl, et cetera, on how to

7 assess for the presence of whether or not

8 allegations in a custody dispute have validity in

9 them. I reviewed prior reports, prior

10 evaluations. There had been such a large number of

11 prior evaluations, I felt it would not be in the

12 children's best interest to be evaluated again.

13 Q. Okay. So let me go back, because I'm

14 not sure I understood the answer to the question.

15 Did you specifically in the course of your

16 evaluation attempt to determine whether or not the

17 kids had been sexually abused?

18 A. Yes.

19 Q. And did you do that by your own

20 evaluation of that question or did you simply rely

21 on something else?

22 A. I wouldn't agree with either of those

23 two options.

24 Q. What did you do?




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1 A. One of the allegations was that

2 children had been abused sexually. Another

3 allegation was that the allegations of sexual abuse

4 were false. So I investigated that matter through

5 a review of documentation, collateral witnesses and

6 interviews with the parents. I relied upon prior

7 evaluations of the children, as I felt it would be

8 unethical and inappropriate to subject them to

9 another direct sexual abuse evaluation.

10 Q. Okay. So did you conduct a clinical

11 evaluation in this case to determine if the two

12 children had been sexually abused?

13 A. It's complex because of the clinical

14 aspect. It was a central component of my

15 evaluation using clinical measures and assessment

16 tools to make a determination as to whether the

17 allegations of sexual abuse were valid or whether

18 they were false. I did not clinically assess the

19 children myself, as one would do in a sexual abuse

20 evaluation where there are allegations, to

21 determine were these children abused or not.

22 Q. Okay. Now, what protocol

23 specifically did you utilize in this evaluation to

24 any extent to address to any extent the issue of




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1 child sexual abuse?

2 A. Well, I followed the recommendations

3 of the prominent figures in the field who write

4 about how a child custody evaluator ought to

5 investigate allegations, whether allegations of

6 sexual abuse are valid or not.

7 Q. And who are those people?

8 A. Phillip Stahl.

9 Q. How do you spell that?

10 A. S T A H L.

11 Q. And what has he written?

12 A. He's written several books. He wrote

13 a chapter on this very subject in his most recent

14 book, which was titled "Complex Issues," I think,

15 "In Child Custody Evaluations." It's in my

16 listing there.

17 Q. Okay.

18 A. There's actually a whole bunch of

19 people who have written about this stuff.

20 Q. Okay. Can you tell me who the people

21 are that you rely on?

22 A. Yeah. Galatzer-Levy has a chapter in

23 their book, their '99 book. Phillip Stahl's book

24 is '99. Elizabeth Ellis writes about this in her




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1 2000 book that was published by the American

2 Psychological Association. Ney, N E Y, slightly

3 older book, but well-respected, from '95. I also

4 utilized information from my readings and trainings

5 from Sandra Hewitt, and Faller, and Sattler, and

6 Quinsey and Lalumiere, the recently published APSAC

7 published standards on this sort of stuff.

8 So there's really a lot of discussion

9 in the literature about how a child custody

10 evaluator ought to approach these issues. Had, in

11 fact, it been my opinion that a direct sexual abuse

12 evaluation of the children was appropriate, I would

13 have referred that to a colleague who had that

14 specific ability.

15 Q. Okay. Because you yourself do not

16 have that specific ability, correct?

17 A. Correct.

18 Q. Okay. Now, what were you just

19 reading from?

20 A. The notes that I made for myself.

21 Q. Okay. Can I see those, please.

22 A. (Indicating.)

23 Q. When did you prepare these notes?

24 A. Let's see, I believe that I put them




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1 together for myself prior to the appearance at the

2 domestic relations court last time that ended up

3 not occurring. I wanted to anticipate questions

4 such as this. I wanted to refresh my memory.

5 These are all books and documents from my own

6 library.

7 MR. DUCOTE: Okay. Can we make a

8 copy of this and then attach it as Borack 1 to the

9 deposition?

10 MR. MASTRUSERIO: Are you going to

11 use it to refer to, so you want to do it now?

12 MR. DUCOTE: Yeah, let's do it now

13 so I can ask about it.

14 THE WITNESS: You may as well do

15 that about this, too, because I'm sure you're going

16 to be asking me about the famous Richard Gardner.

17 MR. DUCOTE: Absolutely.

18 THE WITNESS: Yes, I anticipated

19 that. I should say the infamous Richard Gardner.

20 (Off the record.)

21 (Deposition Exhibit Nos. 1 and 2 was marked for

22 identification.)

23 BY MR. DUCOTE:

24 Q. Dr. Borack, I'm going to show you




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1 what has been marked as Deposition Exhibit No. 1

2 and ask you if you can identify that document?

3 A. Yes. This is some rough notes I

4 threw together so that I could remember when I was

5 being asked about what in my library I utilized in

6 coming up with my recommendation, et cetera.

7 Q. This is the document, if I am

8 correct, that you prepared just prior to the last

9 court hearing which did not take place?

10 A. Exactly. This is my rough

11 preparation so I could remember certain things.

12 Q. Now, at the time that you prepared

13 this document, were you aware that I had filed a

14 motion regarding your work in this case, referring

15 to our position that you are a devotee or someone

16 who relies upon the works of Richard Gardner?

17 A. Yes, I was aware of that.

18 Q. Let me attach this Deposition Exhibit

19 1 to the deposition.

20 I'll show you what I've marked for

21 identification as Deposition Exhibit 2.

22 A. Yeah.

23 Q. Ask you if you can identify that?

24 A. Yes. It's a similar document




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1 prepared by myself in regard to the issue

2 of "parental alienation syndrome" for preparation

3 for trial.

4 Q. Okay. And when you say "for trial,"

5 that was --

6 A. That hearing.

7 Q. You prepared this --

8 A. Exactly.

9 Q. Hang on one second. You prepared

10 this document, Deposition Exhibit 2, in preparation

11 for the last court hearing in this case, which

12 didn't come off, correct?

13 A. Correct.

14 Q. Now, at the time that you prepared

15 Deposition Exhibit No. 2, were you aware that I had

16 filed in the court a motion alleging that you were

17 a devotee or a fan or somebody who utilized the

18 works of Dr. Richard Gardner?

19 A. Yes, I was aware of that.

20 Q. Let me attach Deposition Exhibit 2.

21 Okay. I want to show you -- have

22 this marked the next document as Deposition Exhibit

23 No. 3.

24 (Deposition Exhibit No. 3 was marked for




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1 identification.)

2 Q. I'll show you what's been marked for

3 identification as Deposition Exhibit 3, which is a

4 document consisting of ten pages that starts off,

5 "Michael G. Borack, Psy.D., Custody & Domestic

6 Violence Library," and ask you if you can identify

7 this particular document?

8 MR. MASTRUSERIO: Do you have a copy

9 of that?

10 Q. I don't. We can share one.

11 A. This is a faxed copy -- from where, I

12 don't know. That's very interesting. To me,

13 "Hoffman Firm." But it's an actual copy of my

14 custody library. This is my own books, my own

15 holdings that I have and journal subscriptions that

16 I put together. I'm not sure if it's still current

17 because I don't remember -- You know, I update it

18 every once in a while.

19 Q. Can you look at this and, as best as

20 you can, tell me when you would have prepared this

21 document?

22 A. Oh, I couldn't even begin to tell

23 you. Obviously, this was faxed on October 31st

24 2001, so it was recent, but, you know, I update




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1 this periodically, and I couldn't really tell

2 you -- I would have to be pretty good to remember

3 which books I just recently got. Certainly, in the

4 last six months, I would imagine.

5 Q. What was the purpose of your putting

6 together this document, Deposition Exhibit 3?

7 A. I have that always preprinted and I

8 keep that, and I hand it out oftentimes to people

9 that I'm providing training to or attorneys who are

10 seeking my services just to -- as a demonstration

11 of the fact that I'm current in the literature.

12 Q. Okay. Did you bring with you today

13 for the purposes of this deposition another copy of

14 Deposition Exhibit 3 or updated version or anything

15 like that?

16 A. I brought this, yes. This is very

17 similar. It may be exactly the same.

18 Q. Let's see.

19 A. Well, you can probably just look on

20 the first page, if the first page matches up, it

21 probably fits.

22 Q. This is 11 pages here, the one you

23 just handed me with the highlighting on it is 11

24 pages, and the one I have is 10 pages, so let me go




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1 ahead and, if we could, mark the one that you just

2 handed me as Deposition Exhibit No. 4 and make

3 some --

4 A. None of these documents are part of

5 my official record in this case, by the way.

6 They're just my kind of study notes, et cetera.

7 Q. Well, that's okay.

8 A. Just wanted to clarify that.

9 Q. I haven't said they were yet.

10 A. I would like that back.

11 Q. Yeah, we'll share the copy.

12 (Deposition Exhibit No. 4 was marked for

13 identification.)

14 Q. Deposition Exhibit 4, you have a

15 number of things that are highlighted on here,

16 highlighted in yellow, and then you also have a

17 number of items that have white dots by them. Can

18 you tell me the significance of that?

19 A. White dots?

20 Q. Or yellow dots.

21 A. I can't really remember. I think

22 these were things that I anticipated you would be

23 asking me, like what works did I rely upon, et

24 cetera, as I'm obligated to rely upon scientific




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1 works and writings, and these struck me as ones

2 that I would -- instead of searching, I would

3 highlight them so my eye would go right to them,

4 people like Ackerman and the Ethical Standards put

5 out by the Association for Treatment of Sexual

6 Abusers, that sort of stuff, things that I

7 mentioned, and these, and just my professional

8 works that are more relevant. For example, there

9 are many books in here that would be very

10 irrelevant to this case, so I made this as a way to

11 remember what might be more relevant.

12 Q. But my specific question was, maybe

13 it wasn't clear, you have some that are highlighted

14 and then some that just have yellow dots next to

15 them.

16 A. Oh.

17 Q. I was just wondering if there were

18 any significance to the ones that have yellow dots

19 as opposed to the ones that are highlighted?

20 A. Yeah. It was more or less, I

21 wouldn't want to be -- Generally speaking, the ones

22 that are dotted are things that I consider less

23 important or less relevant. Yeah. Although, I

24 wouldn't want to attribute too much to that. This




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1 is just very rough preparation. When I did this, I

2 did not anticipate it having any significant

3 meaning. I can't really recall. I wanted my eye

4 to be able to go to certain things.

5 Q. Now, do you subscribe to the theory

6 known as "parental alienation syndrome"?

7 A. No, I do not, particularly not as

8 it's ascribed by Richard Gardner.

9 Q. You would agree that the Richard

10 Gardner parental alienation syndrome theory is not

11 something that's accepted as a technique to

12 determine whether or not sexual abuse allegations

13 are true or false?

14 A. Richard Gardner is completely

15 discredited, appropriately so, by the scientific

16 community that has critiqued his work in the decade

17 since it came out. I would say I'm -- The times

18 that people have questioned me about Richard

19 Gardner, it's been more along the lines of

20 something like our mutual friend David Corwin might

21 do, which would be to discredit Richard Gardner.

22 Q. Well, you used to work up in

23 Massachusetts with some other psychologists, did

24 you not?




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1 A. Yes, I did.

2 Q. And what was the name of that

3 practice?

4 A. Collaborations in Clinical Care.

5 Q. And were you doing custody

6 evaluations there?

7 A. Um-hmm.

8 Q. You have to answer in words,

9 although, you had a mouthful of water.

10 A. Yes. Sorry.

11 Q. Was that practice utilizing Richard

12 Gardner's works in its custody evaluations?

13 A. It was -- I couldn't speak to the

14 other clinicians. It was not a group practice. In

15 fact, it was really more of technically an

16 association where we all marketed and rented

17 together, but we were not responsible for each

18 other's work in any fashion, and I don't really

19 know what my colleagues who worked -- had offices

20 in that group, however you want to call it, what

21 they utilized or didn't. They weren't like my

22 partners in any sense.

23 Q. How about yourself, have you ever --

24 A. No, no, absolutely not.




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1 Q. Hang on. I didn't finish my

2 question.

3 A. Sorry.

4 Q. Have you ever used the term "parental

5 alienation syndrome" in any of your evaluations?

6 A. I would -- That would be hard, I've

7 done so many. I might have referred to it in the

8 early '90s. In the mid '90s, it was a term that

9 was being thrown about fairly loosely by everyone,

10 and until some of the major writers started saying

11 that we need to not refer to this as parental

12 alienation syndrome, it's not properly a syndrome,

13 I may have. I doubt it, but I might have.

14 Certainly, I didn't ascribe to his theories or

15 believe that his work was legitimate in any

16 fashion.

17 Q. Well, I want to refer you to

18 Deposition Exhibit 2.

19 A. Which one is that?

20 Q. That's the one that starts "PAS."

21 A. Right.

22 Q. The "PAS," does that refer to

23 parental alienation syndrome?

24 A. Mind you that is just my rough




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1 category so I could remember things. That would

2 be -- These are notes about what I felt was

3 relevant to what I anticipated was an attempt to

4 align me with a professional for whom I have a

5 tremendous disregard, disrespect, which is Richard

6 Gardner, which in fact I would concur is

7 irresponsible, nonscientific proponent of

8 pedophilic type. I completely concur with your

9 critiques and ideas about him, as do most

10 responsible professionals.

11 Q. But my question was, and maybe I --

12 You jumped ahead a little bit in your answer. What

13 was the purpose of your having this, these notes,

14 about parental alienation syndrome in this

15 Deposition Exhibit No. 2?

16 A. These were different authors -- Let

17 me back up. When I wrote my report in this case,

18 and prior to your filing a motion arguing that I

19 was a proponent of Richard Gardner's theories, I

20 had not ever thought of myself even remotely in

21 that category. And in anticipating that this would

22 be your tactic for discrediting me, I went back and

23 reviewed all of the things that I had read

24 previously on this subject that had formed my




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1 professional opinion and work related to the

2 subject of alienation, parental alienation,

3 parental alienation syndrome, however it might be

4 referred to, and these were some of the major

5 things that I relied upon, drew out, recalled, et

6 cetera. That's the purpose of this.

7 Q. So was the purpose of Deposition

8 Exhibit 2 to show how the concept of parental

9 alienation syndrome had no bearing in your

10 evaluation in this case or was it to --

11 A. No.

12 Q. I'm sorry?

13 A. No.

14 Q. -- to show that this was a case of

15 parental alienation or what?

16 A. This was not put together for the

17 purpose of showing anything. This was for the

18 purpose of reminding me in case -- In fact, this

19 was put together so that prior to my testimony I

20 could skim through it real fast so that I would,

21 hopefully, remember all of these things, because I

22 do not have a photographic memory.

23 Q. Okay. I want to go back to your

24 "Custody & Domestic Violence Library" that we have




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1 marked as Deposition Exhibit 3 and the 11-page

2 version --

3 A. Yes.

4 Q. -- as Deposition Exhibit 4.

5 A. Um-hmm.

6 Q. And I was looking through this and I

7 note that listed in here you have --

8 A. Gardner's books.

9 Q. -- three books by Richard Gardner,

10 "The Parental Alienation Syndrome," 1992; 1995,

11 "Protocols for the Sex-Abuse Evaluation"; and

12 1989, "Family Evaluation and Child Custody

13 Mediation, Arbitration and Litigation." That's

14 correct, right?

15 A. Yes.

16 Q. Okay. Do you ever use this protocol

17 for the sex abuse evaluation that Richard Gardner

18 promulgated as reflected in his 1995 book?

19 A. Absolutely not. I purchased these

20 books for the specific purpose of knowing my enemy.

21 Q. So are you aware that Mr. Mastruserio

22 in requesting this evaluation be done was arguing

23 the reason for the evaluation be done was it was a

24 case of parental alienation syndrome?



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1 MR. MASTRUSERIO: Objection.

2 Counsel has misstated Dominic Mastruserio for about

3 the fifth time. I don't believe that I've ever

4 used that particular phrase, and I want to note for

5 the record that, until he can show in a recorded

6 document that I specifically used that term, I'm

7 going to object to it.

8 Q. All right. Do you know whether or

9 not -- Let me rephrase it. Do you know whether or

10 not Mr. Mastruserio had ever represented to the

11 Court that the reason that this evaluation should

12 be done is because it was a case of parental

13 alienation syndrome and you were somebody who was

14 competent to address that question?

15 A. I cannot recall off the top of my

16 head; although, I can say that I'm quite used to

17 even very competent, well-educated attorneys

18 misusing these terms, because it is quite common in

19 the family courts for there to be confusion about

20 the specific terms, parental estrangement, parental

21 alienation, parental alienation syndrome. And so

22 in fact, part of my job is educating those involved

23 around those issues.

24 So I can tell you clearly, though,




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1 that as this case came to me, my -- it was my

2 conception of it early on, was that it might be a

3 case where a father was abusing his children, and

4 it might be a case where the mother was somehow

5 either exaggerating, distorting or fabricating

6 those allegations, and that part of my task was not

7 finding out whether or not in fact these things had

8 occurred, but whether in fact there was a

9 legitimate basis for the mother to fear, et cetera.

10 Q. Now I'm a little confused because I

11 think early on in the deposition you said that you

12 weren't an expert in the sexual abuse of children.

13 Are you saying that you're an expert

14 in false accusations of sexual abuse?

15 A. What I'm saying is that I'm an expert

16 in child custody evaluation, which is a very broad

17 topic. It requires knowledge about a large number

18 of areas, from psychco/legal aspects, local

19 jurisdictional rules, procedures of court, adult

20 mental health, child mental health, domestic

21 violence, sexual abuse, individual psychopathology,

22 parenting skills, cultural issues. It's so diverse

23 that no one clinician can be a specific expert in

24 all of those areas.



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1 It is my responsibility to be expert

2 in conducting child custody evaluations. Had I --

3 And I am trained to, and am thoroughly familiar

4 with the procedures for examining whether or not a

5 sexual abuse allegation that is made in the context

6 of a custody dispute has some validity to it, and

7 then I would go forth with procedures I think need

8 to be done to investigate it.

9 Had this case come to me and I had

10 been the first clinician involved, I would have

11 referred these children to your friend and mine,

12 Erna Olafson, or another esteemed colleague, as I

13 ultimately did, because they have that expertise.

14 But I reviewed all of the other aspects that I need

15 to for my responsibilities and discovered that

16 these children had been worked over numerous times

17 and that it would be inappropriate, it would be

18 improper, and it would be unethical to subject them

19 to further evaluation.

20 Q. Okay. But my specific question was:

21 Do you consider yourself an expert in false

22 allegations of abuse, although, you don't consider

23 yourself an expert in child sexual abuse?

24 A. I'm not an expert in treating child




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1 sexual abuse, and I'm not an expert in assessing

2 whether or not sexual abuse has occurred.

3 Q. Or if -- Does it follow, then, that

4 you're not an expert in whether the allegation is

5 false?

6 A. No, because in fact, many

7 professionals who have a great deal of expertise in

8 assessing whether or not a child has been sexually

9 abused do not have the proper training to make a

10 determination, if in the context of a custody

11 dispute, if that might be a false allegation. So

12 we have procedures for examining children as to

13 whether or not they've been sexually abused, and

14 that is not something that I do.

15 Q. Okay. So let me see if I understand

16 you correctly.

17 A. Um-hmm.

18 Q. You do not consider yourself an

19 expert in assessing whether or not a child has been

20 sexually abused, but you do consider yourself an

21 expert in assessing whether or not an allegation of

22 sexual abuse is false?

23 A. Well, let's see if I can clarify the

24 confusion. I'm not an expert, a specialist, in



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1 (redacted) has a third child besides (the girl) and

2 (the boy)?

3 A. Yes.

4 Q. Okay. And do you know how old that

5 child is?

6 A. I can't recall. Significantly older

7 than the (redacted) children who are the subject of

8 this litigation.

9 Q. Were you aware that that child was a

10 product of, was born of, a relationship that he had

11 in New Orleans with a woman that he didn't marry?

12 A. That sounds approximately correct.

13 Q. Okay. Do you know what Dr.

14 (redacted) relationship with that child is?

15 A. I believe he has no relationship with

16 that child.

17 Q. Okay. And do you know if he ever had

18 a relationship with that child?

19 A. I don't know for certain. I was

20 given the indications from both Mrs. (redacted) and

21 Dr. (redacted) that he had not ever had a

22 relationship with that child.

23 Q. Do you know if that child ever had a

24 father figure in his life?




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1 MR. MASTRUSERIO: Objection on the

2 basis of relevancy. You may answer, Doctor.

3 A. All I know is that Dr. (redacted)

4 stated that there was a stepfather who is very

5 involved, et cetera, who had become the father

6 figure. I have no way of knowing if that's true.

7 Q. Do you believe that regarding that

8 child, setting aside (the girl) and (the boy) for a

9 second, but regarding that son, whether Dr.

10 (redacted) has acted in that child's best interest

11 over the course of that child's life?

12 A. I did not evaluate that question. I

13 cannot provide an answer.

14 Q. Well, do you think it would be

15 relevant if you look at it from a custody

16 perspective to see what the father has done

17 vis-a-vis another child that he had?

18 MR. MASTRUSERIO: Objection to the

19 question on the basis that the witness has answered

20 the question in the negative before, so the

21 question is repetitious and it's irrelevant.

22 Q. Well, he said he didn't do it, but

23 I'm asking him if he thinks that would be

24 relevant.




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1 A. I felt it was appropriate to collect

2 some information regarding the circumstances of

3 that child. However, it was not practical,

4 possible or in this case I believe appropriate to

5 have gone to such lengths as to say interview that

6 child or really analyze that situation in depth.

7 Q. Okay. Well, I'm not suggesting that

8 you had to interview that child. Would you agree

9 that, if we're trying to figure out what kind of

10 father Dr. (redacted) is, that you as a clinician

11 should look at what kind of father he is to all of

12 his children other than these two children?

13 A. In this circumstance, this "father"

14 had never met this child, had allegedly been

15 informed that this child had a father figure. Now,

16 neither of these parties voiced to me any question

17 or concern about that child having say, for

18 example, been sexually abused by Dr. (redacted) or

19 having been mentally or emotionally abused. The

20 question was Dr. (redacted) somehow immoral,

21 incorrect or inappropriate to not provide for this

22 child would require an investigation as to whether

23 his statements about that were true, et cetera.

24 Now, given that, there was really




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1 virtually no dispute that he was engaged with his

2 children, these children, involved with them, in

3 their lives, providing for them, and those

4 questions which might be applicable to this older

5 child weren't applicable here.

6 Q. So do you think that it's an

7 appropriate, responsible father who has a child

8 from some relationship that then doesn't support

9 and doesn't establish a relationship with that

10 child?

11 MR. MASTRUSERIO: There will be an

12 objection to the question. I note my objection for

13 the record for later on that the witness has

14 already answered the question. He doesn't have the

15 information from which to give a response anyway.

16 This is the third or fourth time you asked the

17 question, so there will be an objection. If it

18 continues, I'll direct the witness not to answer

19 the question and you can certify it for the

20 record.

21 MR. DUCOTE: They're different

22 questions each time.

23 MR. MASTRUSERIO: That's your

24 opinion.




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1 BY MR. DUCOTE:

2 A. The allegations and the statements

3 about this child would need to be investigated,

4 which would require an order of the court from that

5 jurisdiction and the involvement of another child

6 and another parent, so that was not feasible,

7 practical or appropriate, certainly not for me to

8 undertake proactively.

9 As to whether or not this was

10 relevant in this case because -- According to Dr.

11 (redacted), he was unaware that this child had

12 actually been born until after the child had been

13 born. He was informed by the mother that this

14 child had a father figure. He was not invited into

15 the child's life. He felt that it would be

16 inappropriate for him to insinuate himself into

17 this child's life, and he provided financially. I

18 don't know if any of those things are true, now.

19 Q. Have you seen Dr. (redacted)

20 deposition that we've taken?

21 A. That you've -- Oh, no. I saw some

22 things or I may have seen a deposition of his from

23 before I wrote my report, but not since.

24 Q. Do you know what Dr. (redacted) says




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1 about Teresa's role in his having a relationship or

2 not having a relationship with that other son?

3 A. I don't know what he said in his

4 deposition.

5 Q. Okay. I want to go back to

6 something, those other exhibits that we talked

7 about for a second, Deposition Exhibit 1, 2 and 3.

8 Now, I'm looking at 1 here and --

9 A. Which one is that? Mine aren't

10 numbered.

11 Q. "How to Assess Allegations of Sexual

12 Abuse in the Context of a Custody Case."

13 A. Okay.

14 Q. I was just kind of during a little

15 break here looking at no. 3, which was your

16 library.

17 A. Okay.

18 Q. And I'm going down to this Ney, N E

19 Y, 1995, "True and False Allegations of Child

20 Sexual Abuse: Assessment and Case Management."

21 A. Yes. It's not in there because you

22 apparently have an older version and, you know, I'm

23 pretty lazy about updating my list, but there it

24 is.




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1 Q. Was this list -- You're talking about

2 no. 4 there, I believe this is no. 4. Was this

3 list updated after you saw the pleadings that I had

4 filed regarding your work in this case?

5 A. I don't think so, but I don't really

6 know.

7 Q. Okay. And what about this article by

8 Kuehnle, K U E H N L E --

9 A. That's a book.

10 Q. Okay, you have that. That's the

11 Professional Resource Press book. Is this a book

12 that you rely on; you like that book?

13 A. No, not particularly, a little bit,

14 but it's not really addressing the topics as

15 thoroughly as the others.

16 Q. Is that a book -- Is Professional

17 Resource Press a publisher of respectable

18 psychological publications; do you know? Who are

19 they?

20 A. It's not a major, by any sense, a

21 major publisher, so I couldn't tell you. Like I

22 said, I don't really rely upon that book as much.

23 It's certainly enjoyed some popularity and was

24 being discussed by people, but I didn't find it as




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1 highly useful here.

2 Q. Going back to this Deposition Exhibit

3 1, the second page, you have "Other Important

4 Titles."

5 A. "Other Important Titles" --

6 Q. And --

7 A. -- yeah.

8 Q. -- I see you list two books by

9 Faller, Kathleen Faller, that aren't in your

10 "Custody & Domestic Violence Library" as reflected

11 in Deposition No. 3.

12 A. Um-hmm.

13 Q. I wanted to see if they're listed in

14 no. 4.

15 A. They may be, but I'm not offering

16 either of these lists as somehow complete,

17 certified, dated, et cetera, listings of my library

18 holdings. And, furthermore, by the way, I

19 oftentimes check out books and read them at the

20 library at UC or whatever, and then ultimately

21 decide that it's a lot less trouble to buy them, so

22 when I have them and when I do and don't own them

23 isn't always the most relevant issue, by the way,

24 either.




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1 Q. I'm just asking you questions. Then

2 I see Anna Salter's book, "Treating Child Sex

3 Offenders and Victims" in 1988, and that's not on

4 your library list, is it?

5 A. I don't know. I don't have them

6 memorized.

7 Q. Then this other one --

8 A. All of these figures, by the way,

9 have written chapters in other books, by the way,

10 as I'm sure you know, and I bet given your

11 speciality, you've met these people. They've

12 written extensively all over the place.

13 Q. I've trained with Kathleen Faller and

14 Anna Salter.

15 A. They've published all over the place.

16 Q. You're the one who have given me

17 these papers.

18 A. I didn't give them to you. You're

19 making an issue out of my personal notes, not me.

20 Q. If you need to take a break to calm

21 down or something, we can do it.

22 A. No, I don't need a break.

23 Q. Now, is it correct that Anna Salter's

24 book "Treating Child Sex Offenders and Victims"




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1 reflected in Deposition Exhibit 1 is not in 3 or 4?

2 A. You can answer that sitting there. I

3 don't have it in front of me.

4 Q. Well, let's see, it is in front of

5 you and I'll reach over you and get it, but

6 whatever.

7 A. Oh, that.

8 Q. Okay. I see in no. 4 you do have the

9 Quinsey and Lalumiere's "Assessment of Sexual

10 Offenders Against Children" listed.

11 A. Um-hmm.

12 Q. You don't have it in the no. 3.

13 A. All right. So?

14 Q. Let's see if you have Anna Salter's

15 book here. You do, you have it in no. 4 and you

16 didn't have it in no. 3. Okay. Well, that answers

17 the question.

18 Have you belonged to APSAC, the

19 American Professional Society on the Abuse of

20 Children?

21 A. Yes, I do.

22 Q. How long have you belonged to that

23 organization?

24 A. I don't recall. I mean, I couldn't




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1 tell you off the top of my head.

2 Q. More than two or three years, you

3 believe?

4 A. No. I got a mailing from them

5 sometime recently.

6 Q. So you just joined within say the

7 last six months?

8 A. Year or year and a half. I don't

9 know. I really couldn't tell you. I'd have to

10 look.

11 Q. Okay. Is this -- Whenever you did

12 join recently, is that the first time that you have

13 belonged to that organization?

14 A. Yes.

15 Q. Okay. Now, are you familiar with the

16 protocol that APSAC has put out for addressing

17 sexual abuse allegations in custody cases?

18 A. Um-hmm.

19 Q. You have to answer in words.

20 A. Yes. Sorry.

21 Q. And is that a protocol that you

22 followed in this case?

23 A. I'm -- I cannot recall if I had it at

24 the time, but I can assure you, whenever any of




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1 these books were acquired, my work in this case is

2 consistent with all of them.

3 Q. Are you familiar with the protocol

4 put out by the American Psychological Association?

5 A. Um-hmm.

6 Q. You have to answer in words.

7 A. Yes. Sorry. Which one? I mean,

8 there's so many. I assume you're referring to

9 something specific.

10 Q. Which ones are you familiar with?

11 A. Specially for forensic psychologists,

12 for custody abuse, for investigating children that

13 have been abused and/or neglected, I mean, there

14 are just so many that are relevant.

15 Q. Did you diagnose Teresa (redacted)

16 with having any sort of mental illness?

17 A. I don't believe I did, no. It's in

18 my report.

19 Q. Did you diagnose her of anything?

20 A. No, I don't believe that I did.

21 Q. Did you diagnose Dr. (redacted) with

22 anything?

23 A. No.

24 Q. I'm looking at Deposition Exhibit 2,




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1 and I see something on here "Darnell Divorce

2 Casualities"; what is that a reference to?

3 A. A psychologist named -- I think it's

4 Phillip, but I'm not sure, Darnell anyways, he

5 wrote a book about the -- sort of updating the

6 concept of parental alienation, a popular trend for

7 parents.

8 MR. MASTRUSERIO: Gentlemen, do you

9 need anything?

10 (Off-the-record discussion.)

11 BY MR. DUCOTE:

12 Q. Is that a book that's on your list

13 here?

14 A. Yeah, should be.

15 Q. Yes, okay. Now, do you ever conduct

16 any training for any professionals in the area of

17 child sexual abuse allegations?

18 A. No.

19 Q. Have you ever conducted any training

20 like that?

21 A. About child sexual allegations?

22 Q. Yeah.

23 A. No.

24 Q. Have you ever conducted any training




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1 for professionals in or about custody evaluations?

2 A. Yes.

3 Q. And who have you trained?

4 A. I train the social work staff at the

5 Hamilton County Court of Domestic Relations and the

6 social work staff at the Norfolk County Probate,

7 Family and County Court.

8 Q. Who is on the social work staff at

9 the Hamilton County court?

10 A. I can't remember all of their names.

11 I'm not even sure I would accurately remember any

12 of their names. It's just they have a staff that

13 does parenting investigations, and they asked me to

14 do some training.

15 Q. Have you ever testified in Judge

16 Panioto's court before?

17 A. Yes.

18 Q. How many times?

19 A. I haven't added that up. Certainly,

20 at least five or six times, I would guess.

21 Q. Have you ever testified in his court

22 regarding the parental alienation syndrome?

23 A. I don't believe I have, no.

24 Q. Okay. Have you ever had any




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1 discussions with Judge Panioto about this

2 particular case?

3 A. No, I haven't.

4 Q. Do you know Betty Gilman?

5 A. No, I don't.

6 Q. You don't know that name, Betty

7 Gillman?

8 A. I know the name. I don't know her.

9 Q. Have you ever had any discussions

10 with her about this case?

11 A. No. I reviewed her -- As reviewed

12 per my report, but otherwise, I've had no

13 connection with her.

14 Q. Is her report something that you

15 relied on?

16 A. A piece, yes.

17 Q. Are you aware that Betty Gillman

18 settled a civil lawsuit brought on behalf of

19 children who alleged malpractice for her diagnosing

20 parental alienation syndrome and that she was

21 subjected to disciplinary proceedings for

22 diagnosing parental alienation syndrome in

23 children?

24 A. Wow, no, I was not aware of that.




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1 Q. Now, you relied a lot on another

2 psychologist, a gentleman who had had his own

3 little problems with the licensing board, did you

4 not, Michael?

5 A. No. Jim Kelly.

6 Q. Dr. Kelly?

7 A. I did not rely upon him, I think you

8 said "a lot," so I would disagree with that.

9 Q. James Kelly, okay. Do you know Dr.

10 James D. Kelly?

11 A. I know him, yes.

12 Q. Do you consider him a friend?

13 A. No, I don't.

14 Q. Do you have -- What sort of

15 relationship do you have with him?

16 A. I met him when the both of us worked

17 at the Lebanon Correctional Center.

18 Q. When was that?

19 A. Let's see. I started there in the

20 fall of '97, and I believe he started in somewhere

21 in early to mid '98, and I work there for several

22 months in the same department with him until I left

23 toward the end of '98.

24 Q. How did he get involved in this case;




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1 do you know?

2 A. My understanding is that Dr.

3 (redacted) was referred to him by the Children's

4 Services social worker, at least that's what Dr.

5 (redacted) told me.

6 Q. Have you talked to him about this

7 case?

8 A. Dr. Kelly?

9 Q. Yes.

10 A. No.

11 Q. Now, to what extent did you rely on

12 Dr. Kelly in this case?

13 A. Very minimally.

14 Q. Okay. And how would you define -- Or

15 let me rephrase that.

16 What did you think that he

17 contributed that you thought was important in this

18 case?

19 A. I thought that his psychological

20 testing data was reliable, probably. I did not

21 feel that the concerns and issues about him would

22 have led him to falsify psychological testing data,

23 so I felt that it was probably valid, although,

24 that was a partially because it matched up with




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1 other testing data that had been conducted as well.

2 Q. And what did the testing data address

3 from your perspective?

4 A. Impulse control, psychological

5 stability, presence of any major mental health

6 questions, that sort of thing.

7 Q. Okay. But you would agree, would you

8 not, that that sort of psychological testing data

9 is not reliable to determine if someone molested

10 their children?

11 A. As there's absolutely nothing that

12 does that. That's why everything needs to be

13 considered together, and certainly different

14 psychological tests can contribute, but they cannot

15 be used exclusively.

16 Q. Because isn't it true that a lot of

17 sexual -- or men who sexually molest their

18 children, that their problem isn't "impulse

19 control"?

20 A. Correct.

21 Q. Okay. Now, I see on your CV and

22 whatnot that you profess to have expertise in

23 domestic violence; is that correct?

24 A. Yes.




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1 Q. Do you know if there's any

2 similarities between the dynamics of domestic

3 violence and the dynamics of sexual abuse of

4 children?

5 A. There are some, very definitely some,

6 similarities and there are some areas where they

7 are divergent.

8 Q. How are they similar?

9 A. Typically, not always, a perpetrator

10 of domestic violence and perpetrators of sexual

11 abuse show characterological problems, lack of

12 empathy, lack of a concern or adherence to social

13 rules, narcissistic features in their personality,

14 deceit, manipulativeness, et cetera.

15 Q. Okay. But specifically the dynamics

16 of the act of -- Well, let me back up a little

17 bit.

18 What is the motivation for a

19 perpetrator of domestic violence; what is it that

20 that person is seeking to achieve?

21 A. There's a difference of opinion as to

22 that, and there probably are differences from

23 person to person and case to case, but the general

24 consensus would be that that person is looking to




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1 assert control.

2 Q. Okay. And is that a typical reason

3 that men sexually abuse their children as well?

4 A. Both of those questions are so

5 complex and there are so many different types of

6 abusers and different, you know, what we

7 theoretically believe to be motivations or

8 characterological elements that attribute to, this

9 is awful hard to make an answer to that in a global

10 sense.

11 Q. Let me be more specific. Does the

12 professional literature, particularly Kathleen

13 Faller and Anna Salter, those other people that you

14 listed as I think you called them "Other Important

15 Titles," do you know if they discuss whether or not

16 there are men who sexually molest their children

17 specifically to punish their wives because of anger

18 and that these men typically are men who commit

19 domestic violence and that sort of thing?

20 A. Certainly, that is discussed in the

21 literature, you know. There's different opinions,

22 and I don't believe that there's any solid research

23 that can discern motivations, but it's certainly a

24 plausible theory that's been floated and ascribed




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1 to by many.

2 Q. Um-hmm. Do you have a professional

3 opinion as to whether or not Teresa (redacted) is

4 mentally ill or emotionally disturbed?

5 A. I cannot -- I don't have sufficient

6 data to diagnose her.

7 Q. Well, I think your report was

8 something like -- all put together I think we

9 counted 82 pages in the first report and there were

10 11 pages then, and that's accurate, that even with

11 all of this data reflected in all of these reports,

12 you have no diagnosis of her as being mentally ill

13 or emotionally disturbed, correct?

14 A. Child custody evaluators are not

15 always in a good position to make a specific

16 diagnosis, and most of the major writers in the

17 field would say that a specific diagnosis is not

18 highly relevant to the issue of custody. It's more

19 relevant to treatment questions. To get an

20 accurate diagnosis is important in forming some

21 sort of treatment. What's important in regard to

22 child custody issues and evaluations is behavior.

23 Q. So would you agree that men who

24 molest their children typically don't have a




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1 diagnoseable mental illness or emotional

2 disturbance, except to the extent that sexually

3 molesting your children is a behavioral diagnosis?

4 A. Right. I think that there's a

5 reasonable co-occurrence of mental illness, but

6 it's not by any stretch a strong correlation.

7 There are plenty of sexual abuse perpetrators who

8 show no signs of mental illness or anything

9 diagnosable, yes.

10 Q. And there are physicians who molest

11 their children, correct?

12 A. Absolutely, there are.

13 Q. Did you attempt to determine in this

14 evaluation if Teresa (redacted) was mentally ill or

15 emotionally disturbed?

16 A. I collected the information that had

17 been, you know, obtained by prior psychologists

18 indicating that there were problems in the

19 direction of effective regulation, possibly

20 personality issues, et cetera, but I did not

21 organize those into a diagnostic picture.

22 Q. So you didn't diagnose any

23 personality disorder with her, did you?

24 A. I don't believe I did, but you read




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1 the report, so it's in there if I did.

2 Q. Something -- I was just flipping

3 through these pages here, and I see you talking

4 about Dr. Kowalsky. Who do you believe has more

5 experience in treating sexually abused kids, you or

6 Dr. Kowalsky?

7 A. I don't know.

8 Q. Well, I believe you testified that

9 you --

10 A. I don't recall anyways.

11 Q. I believe you testified that you have

12 none, right?

13 A. I have treated children who have been

14 sexually abused. I have not treated the sexual

15 abuser, per se.

16 Q. Do you know whether Dr. Kowalsky has?

17 A. I don't recall much about her

18 professional career. I leave that to the trier of

19 fact to decide.

20 Q. But you did, in fact, recommend to

21 the Court that her relationship with her clients be

22 terminated, right?

23 A. Yes, I did. Not on that basis.

24 Q. How many times have you testified in




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1 court that you believe children have been sexually

2 abused?

3 A. I don't even know that I could answer

4 that question. I would never actually testify that

5 I know for certain either way, and I can't recall.

6 Q. Have you ever rendered an opinion in

7 any court of law that you believe --

8 A. That a child was at risk or might

9 have been molested, et cetera?

10 Q. Yes.

11 A. Yes.

12 Q. Do you know about how many times?

13 A. I couldn't begin to count.

14 Q. Do you know when the last time was?

15 A. Not off the top of my head, no.

16 Q. You were a founding member of the

17 Massachusetts Association of Guardian Ad Litems,

18 and that was in what year?

19 A. In '93, '94, something like that.

20 Q. Did you have a lot of responsibility

21 for developing the guardian ad litem program in

22 Massachusetts?

23 A. No.

24 Q. Let's see, you were appointed




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1 guardian ad -- Were you appointed guardian ad litem

2 in Massachusetts 60 times?

3 A. Yes.

4 Q. Do you know if there were other

5 guardians ad litems who were more active in the

6 program than you were?

7 A. Oh, yes, certainly.

8 Q. Okay.

9 A. Are you talking about MAGAL, Mass

10 Association of Guard Ad Litems; is that what you

11 mean?

12 Q. No. Who did more guardian ad litem

13 work than you did?

14 A. Oh, I would have no way of knowing

15 that.

16 Q. Did you happen to see the report that

17 the Massachusetts Senate did on that guardian ad

18 litem program?

19 A. I don't believe so. When was it

20 issued?

21 Q. Well, it was issued last year as a

22 result of a study that was commissioned by the

23 state Senate.

24 A. Well, I left Massachusetts in 1997




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1 and did not -- have never been active there since.

2 Q. So you're not aware whether or not

3 that report says that that guardian ad litem

4 program of Massachusetts was a disaster and exposed

5 abused children to continued abuse?

6 A. Oh, well, that's a pretty different

7 category. I think that that's referring to in the

8 Commonwealth of Massachusetts custody evaluators

9 are almost uniformly appointed, exactly what I did

10 in this case, except for instead of just being

11 chosen by order, I would be appointed as a guardian

12 ad litem.

13 But they're referring to probably, I

14 would imagine, the overall system which was charged

15 with protecting children, and those were usually

16 attorneys, and there were serious problems with

17 those attorneys.

18 Q. I'll send you a copy of it, but I

19 don't think that was just attorneys.

20 A. Sure, I'd be curious. But as I said,

21 I had no involvement with Massachusetts in that

22 sense since '97.

23 Q. Okay. Would you agree that

24 perpetrators of domestic violence also present




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1 themselves as very together and very calm and

2 appropriate in custody evaluations?

3 A. Oftentimes, not always.

4 Q. There are physicians who are

5 perpetrators of domestic violence, are there not?

6 A. Absolutely.

7 Q. And to what extent should domestic

8 violence in your opinion be considered in deciding

9 custody decisions?

10 A. Should be a very significant factor.

11 Q. And to what extent should it be a

12 significant factor? I mean, how should it weigh,

13 should the abuser get custody or not get custody or

14 should --

15 A. Well, I hesitate to make black and

16 white statements, but I would find it hard to

17 imagine a situation in which it would be in the

18 children's best interest to be put in the custody

19 of someone who -- a parent who had been abusive and

20 violent toward them or the other parent.

21 Q. Do you know whether or not there is a

22 considerable body of professional literature from

23 the American Psychological Association, the

24 National Council of Family Court Judges, the