Custody and Psychological Evaluations

Evaluations can be done on the following issues:

a. psychological/mental health

b. custody and parenting time

c. attachment

d. addiction (drug and/or alcohol and/or process addictions like gambling and sex)

e. anger issues

f. other

There are issues about who will get the report (e.g., the court, the attorneys, the parties, the Friend of the Court, the experts, the therapists, etc.). Some evaluators do not want the parties to get a copy of the report. They want the parties to review the report in their attorneys’office but not get a copy of the report.

Other issues include whether the attorneys can have ex parte contact with the evaluator before or after the evaluation is done.

Most evaluators ask parties to waive any privilege with their doctors or therapists so that the evaluator can speak with these people.

It is common for people who are being evaluated to provide the evaluator with the names of collateral witnesses and/or documents. Most evaluators ask that documents provided to the evaluator be also provided to the attorney for the other party—or that documents sent to the evaluator be sent by the attorney and not the party.

Many Ph.D. evaluators will administer various psychological tests to the people they evaluate. These often include the MMPI (the Minnesota MultiPhasic Personality Inventory), which is a pen‐and‐pencil test consisting of a few hundred questions. That test is scored by computer and accompanied by a clinical interview(s).

While evaluations are helpful to the court, they are not always dispositive. The Court of Appeals has held that a court can depart from the evaluator’s recommendation.

An evaluation is “hearsay” and is not admissible unless the parties agree to its admissibility. If the parties do not agree, then the evaluator must come to court and testify in person or be deposed de bene esse (which means that he/she can testify before the trial at a deposition, and then the deposition transcript can be offered into evidence in lieu of live testimony). Courts prefer to have the evaluator come to court in person so that the judge can ask questions of the expert witness.

In custody evaluations, the evaluator will usually meet with the parents individually a few times (including meetings to do testing). The evaluator will then meet with each parent and the child(ren). At some point, the evaluator usually meets with the child(ren) alone. These meetings are to observe any difference in the child(ren) when present with one parent versus the other. That may go to the issue of “bonding.” The evaluator may also ask the parent to do various activities with the child and then observe how much the parent and child interact with each other. The evaluator can then observe how able the parent is to provide guidance or discipline (and the child’s response). Finally, if several activities are at issue, the evaluator will observe how easy or difficult it is to redirect the child from one activity to the next. If the child becomes frustrated or angry/upset, the evaluator can observe how the parent
handles that issue. When the child is over 6 years old or so, the evaluator may actually ask the child about his/her preference with regard to parenting time.

Sometimes an evaluation is done by the Friend of the Court. The Friend of the Court is usually staffed with social workers, who do not do psychological testing. The FOC’s resources usually do not allow for more than a 1‐2 hour interview with the parents and a briefer interview with the children. The FOC may actually do a “home visit” if that is warranted. Rarely will the FOC speak with collateral witnesses. Before the FOC interview, the parents are expected to fill out a questionnaire and bring it to the interview.

If the case goes to trial or an evidentiary hearing, then the judge will interview the child in the judge’s chambers. The judge can only ask the child about his/her preference although this might be done in a very indirect way. The interview should be recorded by a court reporter. And the judge will note on the record in a court decision that the child was interviewed and that his/her preference taken into consideration—but the judge will not reveal what the child says. The court has discretion as to whether to interview the child. The court must find that the child is of sufficient age and maturity to express a preference before giving the child’s preference weight.

Parents must not “coach” their children with regard to any of this. Psychologists are generally able to detect coaching, so it backfires. In addition, children who have been coached exhibit anxiety, which interferes with the evaluation process.

People involved in these evaluations are often afraid to admit that they have received treatment in the past (or currently), or struggle with addiction or other issues. Most evaluators want a candid history for both parents. If one parent is not willing to divulge sensitive information, the other parent usually is during divorce or custody proceedings. The best policy is to be honest. Evaluators focus on the “trend” in a person’s life. If people have gotten help for their problems and learned from their mistakes, this is taken into consideration in most evaluations.

Evaluations can be fairly short and simple. Sometimes they cost between $1,500‐2000. Other times, an evaluation may span months of time and cost between $10,000 and $15,000. The cost is a function of the evaluator’s hourly fee for this work and the amount of time the evaluation takes. Psychiatrists are medical doctors and often charge the highest fee. Psychologists have Ph.D.’s are also charge a high fee. If the evaluator has “forensic” training (i.e., training in the judicial process), the hourly fee may be considerably higher. Social workers also do evaluations but not psychological testing. Their hourly rate is usually the lowest.

A parent should contact his/her insurance company to see if an evaluation will be covered by insurance. Usually, an evaluation for custody or divorce purposes is not covered by insurance because it is not considered “treatment.” The court normally determines in advance which parent will pay for the evaluation or how the expense of the evaluation will be shared by the parties. If one party is ordered to pay for the evaluation in advance, the court might later allocate that obligation differently in a later decision.

Evaluators generally have a current resume or “CV” (i.e., a curriculum vitae). Attorneys should review the evaluator’s CV and parents are entitled to see them.