One tool frequently used in a paternity or divorce, or post-paternity or divorce or custody modification, is requesting a custody/parenting time evaluation. An evaluation is helpful for many reasons.
Globally, it is a tool used to allow a mental health professional to observe the parent-child relationship from a neutral, third-party position, and evaluate the family dynamic and make recommendations to the trial court what custody and parent time arrangement is in the child’s best interests.
This third party evaluator often refers to other materials and statements of third parties to assemble a complete “family snapshot” with evidence that would otherwise be difficult or impossible to admit at trial, so long as it is the type of material the professional relies upon in their profession.
Courts are not bound by custody evaluations and the recommendations made with such reports. Most courts in most cases give significant weight to the custody evaluation. For this reason litigants and lawyers place significant weight on a complete and carefully reasoned custody evaluation.
As such, litigants sometimes make mistakes to the objective of solidifying their positions with respect to the children by their acts or omissions in custody evaluations. A seasoned custody evaluator will likely attribute such to the stressors of custody litigation. However, they can diminish how a parent is perceived by the evaluator.
In part I of this two part series, two of the five mistakes that parties make in custody evaluations are analyzed.
1. Trying to answer the psychological tests favorably.
Many custody evaluations include a short battery of psychological tests for both parents to determine any potential underlying mental health issues. One of the most common psychological tests is the MMPI, which measures the parents' traits (long-term, personality aspects/issues) and states (more short-term current emotions – i.e. anger).
The MMPI measures ten (10) scales, including paranoia and depression. The MMPI can help a mental health professional determine if there are scores connected to psychological disorders or concerns, and ultimately, factor into his or her best interests recommendations. However, the tester can also note if the parent taking the test is trying to conform their answers to what they think the tester wants to see.
The validity of the MMPI test is based on the honesty of the one being tested. If a parent tries to answer favorably, but not honestly, the credibility of the entire test is then put into question, and it may not be useful to the tester. If a test is not credible, and the scoring demonstrates that the parent tried to answer favorably, the test may not be applicable to support that parent, and may end up hurting the parent in the end.
Ultimately, a parent undergoing psychological testing as a part of a custody evaluation should take great care to answer the questions to the testing in a straightforward way. This is the best way to make the most of a custody evaluation.
2. Coaching children before their interviews
As part of the custody evaluation, children are often interviewed with both parties and may meet individually with the evaluator. The evaluator can then note the children's personalities and how the children and parties all interact together.
However, if a parent has tried to coach a child, which time occurs with the most well-intentioned parent, the child often becomes more nervous about the evaluation, and may speak in a way that will reveal to evaluator that the children’s body language is inconsistent with the questions being asked and/or the environment they are placed in.
For example, a five (5) year old who has been led or preconditioned to respond to an evaluator’s questions may talk about liking the school system better in Mother's neighborhood in a way that is not the way a five year old would view this. This might be a red flag that is something a child would not usually be concerned or even know about.
Furthermore, this does great harm to a parent’s legal objective for physical custody or more parenting time. The reason is because a parent who places a child in the middle of a custody dispute inherently demonstrates he or she is less willing to facilitate the other parent’s contact and cuts against more time or an altered custody position.
In a recent Court of Appeals case, the Court examined a case where the mother was found to use derogatory language about father and his new wife, and there was evidence that mother coached her son to say negative things about his Father1.
The Court noted that Mother's actions of coaching and encouraging negative behavior were detrimental to the emotional well-being of the child, and ultimately agreed with the trial court to grant father sole legal custody and restrict Mother's parenting time.
This holding is consistent with the problem that speaking poorly of the other parent and coaching children can make a parent lack credibility. It can also lead the evaluator to believe that the parent is alienating the children against the other parent and is unable to effectively co-parent, which is a pattern that may ultimately hurt the parent in the evaluation.
Having knowledge about a process often makes the process easier, as there is less anxiety about the unknown. Take care to be truthful and honest during a custody evaluation, and at all times, avoid talking poorly about the other parent or encouraging negative behavior by the child towards the other parent. Custody evaluations seek to determine the best interests of the child(ren) and cooperation and civility are important aspects of co-parenting.
At Ciyou & Dixon, P.C., we observe parents wanting the best for their children and sometimes making mistakes in custody evaluations that may ultimately hurt them in looking out for their children's best interests. We hope this blog has been helpful in noting some pitfalls of custody evaluations, and stay tuned for the remaining three (3) mistakes. These will be discussed in the next post. This blog post was written by attorney Jessica Keyes.