As noted in our preceding article, the Hague Convention is a treaty by which signatories nations agree to the return of an abducted child to the country of habitual residence. The purpose of the Hague Convention is to prevent "forum shopping" by which a parent seeks adjudication of the custody dispute in what he/she considers a favorable jurisdiction.

This brief paper will have a dual focus. First it will outline how the use of forensic evaluators in these cases differs from the use of forensic evaluators in custody cases where the evaluator is the court appointed neutral expert. We will then briefly focus on the nuances related to one of the exceptions (or affirmative defense) in Hague cases, that by which a return of the subject child to the country of habitual residence may not be enforced if it can be proven that such a return would cause psychological or physical harm to the child in question.

How is the role of a forensic expert in a Hague Convention case differ than the one of an expert in a custody case? The first important distinction is the one alluded above by which in custody cases the forensic expert is the court appointed "neutral" expert. By virtue of this role, the custody forensic evaluator is expected to provide a psychological portrait of each party strengths and weakness with respect to their parenting skills and assess each parent ability to meet a child emotional, developmental and psychological needs. The custody evaluator will conduct his/her evaluation by considering first and foremost the child best interest and will attempt to determine which parent is best equipped to fulfill the child's best interest.

In contrast as noted above, Hague cases do not deal directly with the issue of custody but rather, as a first step, with the jurisdiction in which the ultimate issue of custody should be addressed. Thus, the role of the forensic expert is different. In Hague cases, each party hires its own expert, which will only evaluate one party and thus will not be privy to the totality of information gathered during a custody evaluation but rather will obtain a more partial view. (There are some exceptions in which a Hague case an expert may be hired as the agreed upon "neutral" evaluator, which are beyond the scope of this paper.) That does not mean, however, that the methodology employed in Hague cases is that different than the one employed in custody cases. Specifically, a forensic evaluation in Hague cases should still rely on a multiprong method which relies on clinical interviews, psychological testing and the gathering of collateral data (third-party interviews and review of pertinent documents). The goal in using a multi-prong approach is still to gather reliable and valid information.

Hague cases involving the use of retained experts typically focus on issues that arise from the three exceptions noted in our preceding article, namely, disputes pertaining to the issue of habitual residence and whether a child is well settled in their new environment (their "new country"). An expert could also be hired to assess the second exception of the Hague cases, namely, whether a particular child has reached the age and degree of maturity and therefore the objection to his/her return to the country of habitual residence should be seriously considered by the judge who adjudicates the case. Finally, an expert can also be used to assess the third exception of the Hague Convention, namely that a child return to his country of habitual residence would constitute a grave risk of physical or psychological harm.

A psychological expert hired to assess each of these dimensions will be required to make a careful psychological assessment. The grave risk of harm exception is perhaps the most psychological rich of these three prongs. Furthermore, in assessing the grave risk exception, custody and Hague Convention case somewhat converge. This is so because in grave risk assessment cases the expert obliquely addresses the issue of the best interest of the child given that the operating assumption of this prong is that it would be against the best interest of the child to be expose to any grave risk of harm. Hague cases involving the determination of the presence of grave risk to a child are essentially risk assessment cases in which the retained expert is asked to opine on the presence of parenting deficits of such magnitude that they would expose the child to risk of psychological/physical harm.

What are the limitations of Hague case type of evaluations? As already noted, Hague cases experts are hired by each side consequently they are deprived of access to both sides. This is a critical limitation because in the absence of an evaluation of both parties, the retained expert cannot reach the type of "sweeping conclusion" that can theoretically be reached in custody cases given that the expert does not have access to the "whole picture" but rather is privy only to the information provided by a parent with a well-defined agenda (wanting to win the case), which will inevitably color his/her presentation. Consequently, the retained expert needs to be extra careful in reaching whatever conclusions he/she may reach due this partial view, and need to clearly spell out these limitations in the work product submitted to the court. Because of these limitations, it becomes even more important for retained expert in Hague cases to employ a sound methodological multiprong approach designed to offset the inherent bias of relying on a potentially self-serving report of the party that is being evaluated. Needless to say, because of these limitations the expert needs to be extra careful in formulating any opinions and especially ultimate opinions.

In sum, Hague case evaluations significantly differ from custody evaluations with respect to how they are conducted and the type of assessments required though partially converge when assessing the grave risk exception as evaluations of these types require the expert to indirectly address issues pertaining to the child's best interest. Because of the partial nature of these evaluations, retained experts needs to be particularly careful in providing opinions and must clearly spelled out the limitations of their word product.

Having briefly looked at the distinction between the role of the forensic expert in custody versus Hague proceedings, let's briefly look at how an expert can be used by either side in the affirmative defense involving grave risk. First, how does one determine the presence of grave risk? In assessing such dimension a mental health professional may want to assess dimensions such as the following:

• Assess for any evidence that the child has been psychologically or physically abused.
• Assess for any evidence that the child has been exposed to deleterious conditions such as exposure domestic violence in the home.
• Assess for any internal signs of trauma in the child (the presence of excessive anxiety, PTSD, symptoms of depression).

As noted in our preceding article, in recent years there has been an increasing emphasis on the far-ranging negative effects of exposure to domestic violence as posing a grave risk to the child. In these cases when the expert is hired by the victim he/she will want to establish the presence of domestic violence and its impact on children's development and overall well-being. The establishment of the existence of domestic violence will be a first step in this analysis and will entail a careful assessment of the conflict history of the parties though an established protocol to assess the presence, extent and severity of domestic violence as advocated by Austin and Drozd (see Austin, W. G., Drozd, L. M. 2012. Intimate partner violence and child custody evaluation, Part I: Theoretical Framework, Forensic Model & Assessment Issues. Journal of Child Custody, 9, pp. 250-309) and/or by using a careful risk assessment protocol such as the one established by the Battered Women's Justice Project. Once the presence and severity of domestic violence is sufficiently established, the evaluator will be required to link how the exposure to domestic violence will negatively impact on the child to the point that it constitute a grave risk to the child.

Conversely, the expert looking to address the abuser's perspective, will likely emphasize the protective measures that could be established that would reduce the risk of harm to children. In these types of evaluations the expert will also be asked to assess not only the type of risks, but also the likelihood of occurrence, the severity of the risk, and most importantly the presence of ameliorative measures that can mitigate such risk. Such measure could include parental coaching designed to reduce the risk of the abuser engaging in reactive, punitive ways toward the child, psycho-educational efforts designed to improve the abuser's understanding of adverse childhood events as they specifically impact on the child's development and/or therapeutic interventions designed to address the abuser's personality deficits (e.g., impulsivity, poor frustration tolerance, anger management) designed to replace poor coping responses with more adaptive strategies.

Alberto (Avi) Yohananoff is a managing partner at NYC Forensics. He specializes in forensic assessments pertaining both to civil and criminal matters, with a particular interest in the resolution of child custody disputes. Richard Min is a partner at Burger Green & Min, a member of the International Academy of Family Lawyers, and a leading expert in the area of International Child Abduction, having litigated dozens of abduction cases across the United States.