When the parties can’t come to an agreement, a child custody evaluation by a mental health professional can help judges by giving an assessment of the family, each parent’s capacity to parent, and the children’s needs and capabilities. Whether the motion for the evaluation is made by the judge or one of the parents, here are some important considerations for you and your client to discuss.
- The cost. There are the evaluator fees and the attorney fees to pay—both of which will be significant. Before taking this costly step, parents should exhaust all other nonadversarial approaches to a custody agreement, whether through private negotiation (either between themselves or with counsel) or mediation. But in cases involving allegations of domestic violence, child abuse, or extremely high conflict between parents, an evaluation is often needed because alternative dispute resolution methods are not appropriate, due to the danger to a parent or the child and the intractable nature of the dispute.
- The intrusion into the client’s life. An evaluation can frequently take up to 6 months from the time the evaluator is formally appointed until the report is issued. During that time, the client is placed under intense scrutiny and held to the standard of good parenting. The client may feel this standard is too high or unreasonable when others in the community who aren’t involved in a custody case may parent their children in questionable ways without consequence.
- The intrusion and anxiety for the children. Similarly, an evaluation is an intrusion in the children’s lives and can cause them anxiety, both on their own behalf and as a reaction to their parents’ discomfort. Your ethical duty to represent your client zealously is usually interpreted in the custody arena to include being sensitive to the interests of minor children. You shouldn’t myopically seek to further only your client’s goals if to do so could be harmful to the children.
- The risk of exposing the client’s private matters. Certain information will come out in an evaluation that would otherwise be undisclosed, such as personal history, family relationships, habits and conduct, mental and emotional status, and prior involvement in criminal or juvenile proceedings. The evaluation process isn’t confidential to the extent that no right to privacy or privilege attaches to any statement or document given to the evaluator by either parent or any other authorized source. Your client needs to understand that this is different from a privileged relationship with a confidential child custody mediator or an individual therapist. In addition, if your client permits his or her individual therapist to speak to the evaluator, that waives the therapist-patient privilege and exposes the therapist and any records the therapist maintains to subpoena. Evid C §912(a). But the written report produced by the evaluator at the end of the process is confidential. See Fam C §§3025.5, 3111(a)–(b).
If you decide to seek an evaluation, get all the information you’ll need on that process, including sample forms, in CEB’s California Child Custody Litigation and Practice, chap 9. Also check out CEB’s program The Roles of Evaluators and Consulting Psychologists in Custody Disputes, available On Demand.
Other CEBblog™ posts you may find interesting:
- Preparing for Child Custody Problems
- Danger Ahead: 7 Child Custody Clients to Avoid
- Sharing Custody When Parents Don’t Share Religion
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