Custody Evaluations: Are They for Masochists Only?

Divorce litigation, even for the most stoic litigants, is a gut-wrenching experience.  Family secrets, long buried and almost forgotten, become fodder for personal attacks.  Financial “indiscretions” in a cash business that resulted in under-reporting income on tax returns can result in the court notifying the Department of Treasury.  Politically incorrect statements (especially in written form such as texts and emails) are now captured for the court to demonstrate that one spouse is a racist or gender-biased.

But perhaps the worst experience a parent will be subject to during a divorce is the custody evaluation.  Simply put, when custody is at issue, a qualified mental health professional may be asked to prepare a forensic child custody report.  The conclusions of the expert are often used by a judge to decide legal custody, physical custody, parental time-sharing, holiday schedules and even rules about communicating with regard to the children.

The forensic expert gathers data using various “scientific” testing techniques, personal interviews of the parents, personal interviews of the children, and personal interviews of third parties (such as grandparents, teachers, therapists and many others).  The expert will observe each of the children with each parent.  The parents will forward to the expert for review any and all material that the parent deems relevant.  Around and around this process continues until the expert is satisfied that a comprehensive report can be issued.

The report will contain summaries of the data accumulated.  Some expert reports virtually regurgitate every allegation made by one parent against the other no matter how unfounded and embarrassing.  Some experts include in their report virtually all observations of the parents, no matter how remotely connected to assessment of parenting skills.  The testing is “graded”, observations are summarized and a psychological profile of each parent and child is written up.  The expert’s conclusions and recommendations follow.

Complicating matters, it is not uncommon for there to be a court-appointed evaluation by one expert and also additional evaluations requested by each parent, using their own evaluators.  So each individual including the children may be interviewed by numerous experts.  The above doesn’t include the possibility of the Court ordering a guardian ad litem (child guardian who reports to the judge) or an actual independent guardian for the children.

The only guarantee I ever give to clients is that nobody is ever smiling after a forensic psychological evaluation reveals every blemish an individual has.  Testimony at trial about personal hygiene, sexual eccentricities and violent outbursts will be humiliating.  By the end of a trial, a judge may be left to decide not which parent functions best, but which parent will do the least harm to the children.

My personal belief is that attorneys often do not fully drive home to their clients just how imprecise and dysfunctional the custody evaluation process can be.  A parent who truly cares about their child should try to avoid these evaluations and negotiate a fair compromise.  They should take a step back from the emotional reasons behind their custodial positions and understand that the process itself may create more problems than it resolves; especially to the child who will carry the experience into adulthood.

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