In many cases, a neutral third party may be requested in contested custody cases to conduct a custody evaluation and make a recommendation to the court. The recommendation from the evaluator’s standpoint (after interviewing the children and parents, perhaps visiting the parent’s respective homes, and looking at documents, such as police reports) is a custody and parenting time arrangement that is in the children’s best interests. The problem this creates for one parent is that, normally, they will view the recommendation as a loss. This blog addresses ways to address a negative custody report (which is what the evaluator prepares from the process noted above) filed in the court.
As a threshold matter, a custody evaluator may be a person ranging from a licensed clinical social worker, attorney, or child psychologist. With social workers and attorneys, both typically have limits on the amount of time they can spend in their investigation and report to the court. Additionally, only clinical child psychologists can perform psychological testing. Thus, if mental illness is missed by a LCSW or attorney, the party who did not prevail may seek a custody evaluation to be prepared by a forensic clinical child psychologist who can conduct necessary testing and likely over-ride the weight afforded to the first report.
Second, it may be an appropriate strategy not to obtain another report. While court’s do put value on custody evaluations, the judge can reject the recommendations. Only the judge determines from a legal standpoint what is in a child’s best interests. With skilled counsel, it may be possible to show the shortfalls of the report and the like and actually use a negative report to benefit the parent who was not recommended to be given physical custody. There are many ways to do this, such as through cross examination of the evaluator on whether they considered certain documents (such as a criminal history) that are key to custody (such as domestic violence conviction) or showing some bias. This can be very effective in some cases with skilled counsel. If the evidence supports it, the report may be given very little weight by the judge. A classic example that still occurs is an evaluator is not ordered by the court but a child or parent’s therapist is called as kind of a make-do custody evaluator and asked questions favorable to a party (patient). The first cross question is likely to be sir (or ma’am) have you ever talked with my client? If the answer is “no”, there is virtually no weight given to the report (and in fact the evaluation and/or may excluded because it does not meet the Daubert test.
A third way to challenge even a child psychologist’s report is to have another clinical forensic psychologist conduct an evaluation and/or testify about the shortfalls in the initial report. This is a somewhat common practice, as even clinical forensic child psychologists can have differing views because even under the rigorous guidelines they follow from the APA,1 the range of factors or variable in play in a custody evaluation may span years in time and be contained in a hodgepodge of documents, ranging from texts, records, photos, police report, and psychological records to name a few. Thus, the take-away is an unfavorable custody evaluation does not necessarily dictate the decision of your judge. Skilled counsel will work with you to make a viable strategy to address an unfavorable custody evaluation. Every divorce attorney handling high-conflict custody cases has had a judge reject a custody evaluation in whole or in part.
This blog was written by attorneys at Ciyou & Dixon, P.C. who handle domestic cases across the state as well as those with jurisdictional components across the United States and world, including defending a parent with an unfavorable custody recommendation. These do not necessarily dictate the judge’s decision. This blog is written for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- The APA is the American Psychological Association. Its guidelines require forensic clinical child psychologists to conduct forensic interviews of the parents and children, administer psychological testing, and review collateral resources, such as interviewing the children’s teachers to obtaining and reviewing a variety of records.
