A forensic evaluation is any evaluation primarily done for legal purposes. Sometimes, a clinical or academic evaluation will subsequently be used in a legal proceeding, but this is different from an evaluation primarily done to address a legal question. Whenever possible, it is desirable to foresee probable legal disputes arising, but this is not always feasible and any case can technically subsequently become involved in a legal argument. Clinicians are well advised to consider a priori what policy they wish to maintain regarding forensic work and present such policies to clients in writing along with other initial paperwork such as consent and disclosures. For example, clinicians can choose to be open to participation in legal disputes; should they arise, and in this case a Forensic Agreement is necessary. Minimally, a written statement about policies and fees in the event a client becomes involved in a legal dispute should be provided. Alternately, clinicians may intend to avoid participation in legal disputes and state this policy in writing to their clients at the onset of their professional involvement. Of course, clinicians can be court ordered to testify or evaluate clients at a judge’s discretion. Examples of legal disputes involving individuals with ASD may include:

When a forensic evaluation is requested, the scope of background information reviewed as well as the extent of testing completed is much more comprehensive than for other types of evaluations. This is because information that is neither obtained nor reviewed from the individual’s background, or skills or abilities that are not assessed, remain unknown and can subsequently be obtained and used by the other side to refute findings and discredit the evaluating clinician’s opinion. In other words, any information that the clinician is unaware of in completing a forensic evaluation can be used against him or her. When a psychologist is hired to assist in legal proceedings, he or she is typically hired as an expert. If that expert fails to obtain and consider important information about the client, then he or she can readily look more like an idiot than an expert. Since the whole point of completing a forensic evaluation is to render an opinion about the imminent legal question, it is recommended to complete a comprehensive assessment whenever possible. In rare cases, a psychologist may be hired as a fact witness, but this usually occurs due to some administrative technically since the client’s attorney would most like their witnesses to be able to testify more broadly as an expert and not just as a reporter of facts like anyone else without such special credentials.

Many times, financial limitations are raised as a concern since almost inevitably forensic evaluations are much more expensive than other types of evaluations. Increased costs arise because forensic evaluations usually involve more testing and longer reports. If financial limitations are a primary concern, however, it is probably not feasible to pursue legal action in the first place because attorney fees far outweigh the roughly $3000–$8000 cost of a forensic evaluation. Evaluations typically end up being more expensive when the client has a lengthy history of medical, developmental, or academic challenges. If a family or law firm cannot afford the high, and typically unknown, extent of the legal costs, they probably should seriously reconsider before requesting a forensic evaluation. In a few tragic cases, parents have requested a forensic evaluation only to subsequently decide that they cannot afford their attorney’s fees to pursue the case. In such situations, the family is still responsible for paying the psychologists’ cost of the forensic evaluation since the work they requested was completed. It should also be kept in mind that the cost of expert testimony (discussed below) is usually even more expensive than the cost of the report.

Forensic reports have important differences compared to reports which accompany clinical or school evaluations. Many recommendations pertaining to forensic reports apply to the language used in describing the client and the assessment results. First, it should always be born in mind that a primary audience of the report is attorneys who often have limited knowledge of autism, psychological evaluations, and mental health issues in general. In this regard, it is ever more important to clearly state the findings in lay language that can readily be interpreted accurately by a psychological novice. For example, stating “the client has never had any significant friends” is much preferred to “the client exhibits social impairment.” Similarly, describing “the client never initiated any conversation during the 6 h evaluation” is far more informative than “the client presented as quiet and guarded.” Any psychological term should be defined or avoided altogether in preference for a simple description of the construct. For example, “Verbal Comprehension Index” could be further explained as “Verbal abilities” and “Perceptual Reasoning Index” further explained as “Nonverbal abilities.”

Other psychological jargon needs to be explained or omitted entirely. For example, “emotional lability” could be stated as “rapidly fluctuating moods” or “stereotypical behavior” explained as “repeatedly mimicking actions or phrases the client had likely seen previously on TV.” Similarly, the 90 % Confidence Interval should be explained as “9 times out of 10 the client’s score would be expected to fall between this lower number and this upper number.” Furthermore, it is recommended that percentile ranks are always included alongside standard scores because the former statistic is much more widely understood by professionals in other fields, including attorneys. All types of assessments should generally be written for clarity, but forensic reports should achieve an even higher standard in this regard or the writer is at grave risk of having his or her statements perilously misinterpreted and even used against the client in a manner that was never intended. The cost of misleading statements in a school assessment is that the student may not be seated in the best classroom location to permit maximum productivity. In contrast, the cost of a misleading statement in a forensic assessment is that the client may face serious jail time simply because he failed to understand and heed law enforcement’s requests.

A second recommendation regarding language used in forensic reports pertains to omission of ambiguous findings. Sometimes, assessment report writers like to overtly opine about different explanations or hypothesis they have about the client or their results. For example, some authors tend to write things like, “A high score on the ADOS-2 can be achieved when an individual is very depressed or clearly has autism.” While the preceding statement is true, including such a statement in an individual forensic report opens the door to all kinds of debate over what the client’s high ADOS-2 score may actually mean. The report writer should bear in mind that attorneys and judges are not qualified to decide the meaning of a particular client’s high ADOS-2 score or any other assessment results. It is the job of the professional performing the forensic assessment to clearly report the findings and decisively present their conclusions about those findings in an unambiguous manner. If after carefully reviewing all the results, the assessment professional concludes the client is severely depressed and does not have autism, then she should definitively state this opinion. It is advised to appropriately integrate all the findings that support the conclusions, but this too should be done in a decisive manner. Drawing clear conclusions about all psychological domains for the forensic client is necessary and such opinions should be presented resolutely.

Family courts handle family legal matters including cases of divorce, child custody, and adoption. Unfortunately, the stress of parenting a child with ASD renders the frequency of marital problems even more prevalent for such families than in the general population. In addition, it is increasingly common to discover that one biological parent of a child with ASD has an Autism Spectrum Disorder himself or herself. Since adults with ASD inevitably have some combination of communication, social and emotional difficulties as well as frequent weaknesses in executive functioning (planning, organizing, initiating) and a high prevalence of attention difficulties, such parents with ASD are more vulnerable to marital problems and divorce than neurotypical parents. Furthermore, because children with ASD have unique needs both as a child and adolescent, as well as special needs that often must be provided for as he ages into adulthood, separating and divorcing parents of children with ASD typically face complicated future concerns. All these factors can make the family courtroom for parents of a child or children with ASD, a contentious situation. And when there’s conflict, a parent, attorney, or judge may call for the assistance of an autism professional to serve as a witness in some capacity.

Frequently, the issues encountered in family law pertaining to a child or teen with ASD include:

When the question is whether or not the child actually has ASD, a clinician may be asked to perform a forensic evaluation knowing that another professional or clinic has also recently performed a comparable evaluation. Under such circumstances, the child or teen may even remark that some of the ADOS-2 materials look familiar. Other times, the client will remark that he has recently seen the ADOS-2 materials yet you as clinician are unaware that anyone else has done an evaluation. In such situations, it’s prudent to note these comments and try to substitute the ADOS-2 materials for other comparable test materials. For example, different ADOS-2 kits actually have different toys and other items so another comparable set can be used, borrowed, or even purchased. Because of the pervasive neurophysiologic nature of ASD, whereby actual neuroanatomical differences exist between the brain of a person with ASD and a neurotypical brain, it’s not possible to “teach the ADOS-2” such that ASD is no longer evident a few weeks or months later. Even if a parent observed her child perform the ADOS-2 one time, it’s not possible to eradicate the effects of ASD a few months later by attempting to teach the activities to the child. This is especially so because the examiner plays a critical role in the administration of the ADOS-2 tasks in contrast to virtually every other psychological measure where the items are precisely written on the assessment protocol. For these assessments, the administration has very little to do with the interests, style, or mannerisms of the examiner (see Chapter 9: Social and Sensory Assessment).

Some may argue that there is less need for a comprehensive forensic evaluation when the question is whether or not ASD is relevant because comprehensive testing is not necessary to simply determine if ASD is the appropriate diagnosis. The wide spectrum across which ASD can present, however, with vastly different weaknesses and levels of severity, again points to the value of a comprehensive assessment . For example, if the parents are going to argue whether ASD is present or not and findings indicate it is, the parent who believes his child doesn’t have ASD will probably want to diminish the services needed. Without comprehensive testing to determine the nature and extent of the client’s deficits, it will likely be impossible to testify to the need for certain services because there exists little evidence of the degree to which ASD is affecting critical skills or abilities. In addition, comprehensive testing is necessary to determine additional conditions that may exist alongside ASD. In other words, even if ASD is present, unless there is convincing data indicating how the individual is struggling to succeed in school, manifesting anxiety of depression secondarily to social inadequacy, or presenting with language deficits which undermine all aspects of communication and reading skills, it will likely be difficult to testify about the need for services or supports.

Courts are typically wedded to the concept of, “No harm, no foul.” This curt saying means that if there’s no damage to be expected or no damage has occurred then there’s no reason for financial or other compensation to be awarded even if findings are significant. In the case of whether a child has ASD and what services he’ll need as it pertains to family court, comprehensive testing is necessary to determine exactly what the client requires in all areas of their functioning, the extent to which he struggles in those areas and how long he’ll require such accommodations, services, or supports. Almost always in forensic situations, money plays some central role in the dispute. In family court as well, how much various services are likely to cost is probably at the root of the disagreement. In order to cogently testify for what the witness truly believes the client needs during the rest of his life, comprehensive test data, coupled with empirically supported research on individuals with ASD should form the foundation for all opinions. It can also be vital to determine if there are comorbid conditions such as depression or even conduct disorder as these variables obviously substantially influence whether a recommended placement or services are likely to be successful. Obviously, professionals with integrity want to testify to recommendations that will be effective.

Sometimes, clinicians who are treating an individual with ASD will be asked to testify in family court either as an expert witness or a fact witness. Again, the reason the parents or guardians are in family court is because they are arguing about something such as school services, needed therapies, appropriate residential placement, or child support payments—just to name a few. In such cases, the professional should be aware that agreeing to provide testimony is likely to change their relationship with one or both parents or guardians. If the professional feels comfortable with these relationships, he may not wish to testify at all. While a court order to testify cannot be declined without being in contempt of court, a subpoena to testify can often be quashed. When doing any forensic work, it is advisable to identify an attorney ahead of time with whom one can consult with regarding subpoena’s, court orders, and any other legal questions that may arise. Such an attorney can be very helpful in refusing a subpoena.

Frequently, when providing treatment for an individual with ASD whose parents or guardians have divorced or separated, the clinician’s relationship with one parent or guardian will be better than their relationship with the other. After all, if the parents or guardians were aligned on matters pertaining to their children, they would likely not be living separately and arguing in family court.

An example of such a situation is two parents long since divorced who are now arguing over placement of their adult daughter with ASD. The father feels his nonverbal adult daughter should live in residential care so that he can sell the family home while the mother strongly prefers to have her daughter continue to reside with her in her childhood home. When a professional disagrees with a parent or guardian’s actions or plans for their child, she may even be pleased to testify if she is solicited by the parent or guardian who is aligned with her recommendations. Testifying in support of the parent or guardian whose perceptions and actions are aligned with empirically supported treatments, services, or placements may indeed benefit the client which is obviously the ultimate goal. Recognize, however, that after testifying in support of one parent or guardian, the other parent may no longer be willing to bring the child for therapy, and the court may also decide that the testifying professional no longer represents an impartial advocate for the child. If the professional feels strongly that the opposing parent’s actions and plans are very likely to going to damage the child anyway, it may be beneficial to testify to these concerns even if therapy is subsequently discontinued. Sometimes, a parent is ignorant of the fact that a clinician does not support his or her perceptions, strategies, or plans for the child and may naively solicit the clinician to testify on his or her behalf. In this case, the clinician may commend herself for establishing and maintaining rapport with a parent or guardian with whom she disagrees. However, it is advised that the professional either seek to quash the subpoena or politely inform the soliciting parent of any are unwillingness to testify because she feels it is not in the best interest of her client. One may say something about stressing the importance of remaining an advocate for the child especially while the parents or guardians strongly disagree. It is possible to be persistent in this position even if vague about the specific details surrounding reticence to testify if the clinician believes she can continue to be most helpful as the client’s clinician . It is unethical to accept a parent or attorney’s request to testify only to surprise them publically that the child’s clinician does not support the parent’s legal argument.