In today’s world, busy courts have limited time to hear cases. The average case load in Indiana, that most judges manage, is in the thousands. In divorce and paternity cases, these judges have to decide child physical and legal custody, in the children’s best interests. Due to the fact many custody disputes have significant amounts of data relevant to the case and the children’s best interests, in many cases, the parties will elect to have a forensic child clinical psychologist appointed to make a custody evaluation report to the court. This single document, in many cases, eliminates the need for significant testimony and documentary evidence as all is contained in the custody evaluation report. This blog covers four key points you must know if you are considering or will have a forensic custody evaluation.1
First, a child custody evaluation made by a forensic clinical child psychologist is very expansive. The custody evaluator will interview the parents and children in various settings in what is known as a “clinical interview”. The evaluator will also conduct psychological testing on the parents and sometimes the children. Finally, the custody evaluator will obtain collateral data and review it to assist with his or her views on the case to date. Collateral data made by be interviews, such as with the children’s teachers, to written documents, such a police reports or school records. With all of this, the evaluator will prepare a written report and make recommendations to the court of what custody arrangement is in the children’s best interests from the view of a child psychologist. This is what a litigant seeking or undergoing a custody evaluation with a forensic clinical psychologist can expect of the process.
Second, while this surprises many litigants, a custody evaluation is not binding on the court. The law is very clear that judges solely make child custody determinations by independently determining what custody arrangement is in the children’s best interests. While in many, if not most cases, a trial court judges will follow all or part of a child custody evaluator’s recommendations, a judge may reject the evaluation’s recommendations as well. However, custody evaluations are still very helpful for courts because an expert witness may rely on hearsay and other information from the children that would be difficult to get admitted into evidence at trial. In many cases, custody evaluators obtain so much data and review this in making their report, that it would take days and days of trial to admit this evidence in a custody dispute (assuming it could be obtained in an admissible format). Thus, even a partially favorable or unfavorable report may assist in your case.
Third, and perhaps a question that concerns many litigants as they consider seeking a custody evaluation from a forensic child psychologist, is what if it is unfavorable. While every attorney will have different approaches as to how to handle a negative custody evaluation, all litigants should know all professionals make mistakes and there are ways to overcome a negative evaluation. For instance, if key additional information arises, the custody evaluator may be requested to update or supplement his or her report with this information and perhaps come to a different recommendation. Also, it is somewhat common to retain an independent forensic psychologist to review and assess if the custody evaluation was flawed and call him or her at trial to demonstrate this to the court. So ultimately, custody evaluations—even negative ones—can be addressed at trial. In some cases, calling live witnesses may also present evidence to address a negative custody evaluation.
Ultimately, custody evaluations conducted by forensic child custody evaluators are a key tool in highly-contested child custody cases. There are risks and benefits to any given legal tool used to further any given client’s objective. This is where good lawyering and clear goals can make or break a case. This blog was written by attorneys at Ciyou & Dixon, P.C. who handle child custody cases in all of Indiana 92 counties. This blog is intended to provide general educational information and is not intended as legal advice or as a solicitation for services. It is an advertisement.
- The authority for a trial court to order a child custody evaluation is found in Indiana Rule of Trial Procedure 35 and in the Divorce Act in Indiana Code section 31-17-2-12.