There are numus ways to have your child’s voice heard in court to aid a judge with making a custody determination or a modification decision. In most cases, an attorney or licensed clinical social worker can interview the family and children in order to make a sound recommendation to the court about what he/she believes is in the children’s best interests. This is because they are neutral to either side. However, in a small minority of cases involving high-conflict custody proceedings, the facts are convoluted and may reflect deeper underlying substance abuse issues masking mental health conditions. In these cases, a forensic child custody evaluator may provide invaluable insights to the judge that aid in making a custody recommendation. This blog explores the process a forensic custody evaluator (who is a doctorate level professional) engages in and why it is more thorough than any other professional who makes recommendations to the court on child custody. However, these child custody evaluations are expensive and invasive, so you will have to work with your counsel to properly draft a motion that the court will consider electing to order such an in-depth evaluation. A forensic custody evaluation can be ordered in any paternity1 or divorce case.
As a threshold matter, forensic custody evaluators, namely child clinical psychologists, have the legal ability to conduct psychological testing. Attorneys and social workers are not legally able to administer and interpret these tests. Perhaps the most widely used test in child custody evaluation is the MMPI-II. This test reflects personality states and traits. A state is how a person is acting at any given point, such as whether they are happy or sad. This may change rapidly. A personality trait is a characterological feature of a person that is unlikely to change much over time. The test is weighted so that if a parent is trying to present favorably it will show this in the testing. If this is extreme, it may invalidate the test. There are a multitude of tests that may be administered by a forensic psychologist based on his or her understanding of the case. For instance, if presented with the right forensic interview, the evaluator may test for a personality disorder. Such disorders make co-parenting or other relationships hard to maintain. This is significant for a court selecting the custodial parent, who is the parent who is most likely to provide meaningful parenting time with the non-custodial parent. This is where you, with your counsel, help identify information the custody evaluator may need, such as police reports and medical records, to assess any significant mental health matters that may impact parenting and weigh which parent should have primary physical custody.
It is very important for a forensic custody evaluation, by a clinical child psychologist, to conduct various interviews with the parents and/or children in different settings. While you should just be yourself and not try to present favorably, you should work with your attorney closely, and in advance, to address the tough questions all the way from childhood to the present. With this, they will see that you are not trying to present the right answer, but one that is thorough. If not, you may misrepresent a significant event and lose your credibility with the evaluator or have not developed your complete thought. Every attorney has received a written custody evaluation and recommendations (this is the end product of the evaluation) where he or she is blind-sided by a relatively significant issue that his or her client did not properly or fully disclose, putting the entire evaluation at risk. Seasoned domestic counsel can help you work through the “skeletons” in your closet before you make a mis-step in a custody evaluation.
The key to a complete custody evaluation is collateral data. For instance, if a parent claims the other has a substance abuse problem, which is denied by the other parent, medical or police records may bolster or refute the he-said, she-said. Collateral evidence is any third-party source of information from a teacher (who can testify if a child has had excessive absences) to protective orders and criminal convictions. These pieces of information are put into context with the psychological testing and forensic interview and help an evaluator understand which parent should provide the most nurturing environment for the child and foster the non-custodial parent’s relationship. Clearly, a parent who openly disparages or tries to alienate the children from the other parent to the evaluator (and/or as is likely reflected in collateral data and contacts) is unlikely to meet the child’s best interests and be the recommended custodian. However, a significant amount of collateral evidence that is given significant consideration by a forensic custody evaluator may have to be obtained by your counsel through third-party discovery so it is also important to time your evaluation so your counsel can obtain necessary information to provide to the evaluator.
A custody evaluation is not the right legal tool for most child-custody litigation but is the perfect tool for others. With skilled legal counsel, and clear direction to counsel what legal objective you seek to reach, he or she can access the numerous tools in the Divorce or Paternity Acts to assist you in making the best custody argument and presentation of evidence you can in your case. Is a forensic child custody interview right for your case? This blog is written by Dixon & Moseley, P.C. attorneys who handle complex child custody cases of all types throughout the state. This blog is written for informational purposes and is not intended as legal advice or a solicitation for services. It is an advertisement.